EN BANCFRANCISCO CHAVEZ,Petitioner,

- versus -

RAUL M. GONZALES,in his capacity as theSecretary of theDepartment of Justice;and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC),Respondents.

G.R. No. 168338

Present:

PUNO, C.J.,QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,VELASCO, JR.,NACHURA,REYES, andLEONARDO-DE CASTRO, JJ.

Promulgated:

February 15, 2008

  

  

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D E C I S I O N 

 PUNO, C.J.: 

A. Precis 

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1]Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. 

B. The Facts 

1.     The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5]Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7]

 2.     On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty.

Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap.Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

 3.     On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul

Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable

under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9]

 4.     On June 9, 2005, in another press briefing, Secretary Gonzales ordered the

National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]

5.     On June 11, 2005, the NTC issued this press release: [11]

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS 

xxx xxx xxx Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. 

These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.

 6.     On June 14, 2005, NTC held a dialogue with the Board of Directors of

the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to

information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12]

 NTC respects and will not hinder freedom of the press and the

right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty.

 NTC did not issue any MC [Memorandum Circular] or Order

constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views.

 What is being asked by NTC is that the exercise of press freedom

[be] done responsibly. KBP has program standards that KBP members will observe in

the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion.

 The KBP Codes also require that no false statement or willful

misrepresentation is made in the treatment of news or commentaries.

 The supposed wiretapped tapes should be treated with sensitivity

and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

  

C. The Petition 

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs ofcertiorari and prohibition, as extraordinary legal remedies, to annul

void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13]

 Alleging that the acts of respondents are violations of the freedom on

expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court:

 [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15]

 Respondents[16] denied that the acts transgress the Constitution, and

questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18]

 D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

 To be sure, the circumstances of this case make the constitutional challenge

peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press.

 It would seem, then, that petitioner has not met the requisite legal standing,

having failed to allege such 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. [19]

 But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.

 Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press.

 But aside from the primordial issue of determining whether free speech

and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

 E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

OF EXPRESSION AND OF THE PRESS 

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.[24]

 Freedom of expression has gained recognition as a fundamental principle of

every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech.[26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.[27]

 In the Philippines, the primacy and high esteem accorded freedom of

expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

 

E.1. ABSTRACTION OF FREE SPEECH 

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held:

 

At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be 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 substantive evil that Congress has a right to prevent. [33]

 Gonzales further explained that the vital need of a constitutional democracy

for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open. [35]

 

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. [39]To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40]

 The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding

secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

 

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression.

 

While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed.

 E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE

SPEECHFrom the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g.,

obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.[45]

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudencewhether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47]

 Generally, restraints on freedom of speech and expression are evaluated by

either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated;  [48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50]

 As articulated in our jurisprudence, we have applied either the dangerous

tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51]

 E.3. IN FOCUS: FREEDOM OF THE PRESS

 

Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]

 The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

 Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. 

E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT-BASED REGULATIONS

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication;  [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55]

 Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations.

 At this point, it should be noted that respondents in this case deny that their

acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution.

 Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] 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. [57] 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. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58]  and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the

challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60]or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with. 

When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: 

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64]

 On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality.

 

Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[68]

 The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. [69]

 Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose,with the least restrictive means undertaken. [72]

 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74]

 Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions.The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide

regulations as to the time, place or manner of the dissemination of speech or expression.

E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the

ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media.

 The regimes presently in place for each type of media differ from one

other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes.

 The dichotomy between print and broadcast media traces its origins in the

United States. There, broadcast radio and television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless];  [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children. [78] Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,[79] they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80] or the intermediate test.

 As pointed out by respondents, Philippine jurisprudence has also echoed a

differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints.

 Our cases show two distinct features of this dichotomy. First, the difference

in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process.

 Second, regardless of the regulatory schemes that broadcast media is

subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media.

 The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule[83]

 Dans was a case filed to compel the reopening of a radio station which had

been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus:[84]

 xxx xxx xxx

 

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of

our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of theAnti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.

Similar considerations apply in the area of national security.

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

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age,

persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling.

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection.

(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that.

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

 It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test

for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85]

In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures:

All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

 More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89]

 This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to

all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90]which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply.That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:  

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.[93]

 

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94]

 The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities,  [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98]

 F. The Case At Bar

 Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action thatrestricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumedunconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. 

This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the

party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater

evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. 

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media.Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. 

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.

 

The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For

there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. 

In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED.

 REYNATO S. PUNO

Chief Justice    

 WE CONCUR:

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAssociate Justice

ANGELINA SANDOVAL-GUTIERREZAssociate Justice

ANTONIO T. CARPIOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

RENATO C. CORONAAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

ADOLFO S. AZCUNAAssociate Justice

DANTE O. TINGAAssociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

 

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

RUBEN T. REYES TERESITA LEONARDO-DE CASTROAssociate Justice Associate Justice

  

C E R T I F I C A T I O N  Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. 

  

REYNATO S. PUNOChief Justice

 

[1] G.R. No. 103956, March 31, 1992, 207 SCRA 712.[2] 218 Phil. 754 (1984).[3] G.R. No. 147571, May 5, 2001, 357 SCRA 496.[4] G.R. No. 169838, April 25, 2006, 488 SCRA 226.[5] Rollo, pp. 6-7 (citing the Philippine Daily Inquirer (PDI), June 7, 2005, pp. A1, A18; PDI, June 14,

2005, p. A1); and p. 58.[6] Id. at 7-8 (citing the Manila Standard, June 10, 2005, p. A2); and 58.[7] Id. at 7-8 and 59.[8] Id.[9] Id. at 8-9 and 59.[10] Id. at 9.[11] Id. at 10-12, 43-44, 60-62.[12] Id. at 62-63, 86-87.[13] Id. at 6.[14] Respondents have committed blatant violations of the freedom of expression and of the press and the

right of the people to information on matters of public concern enshrined in Article III, Sections 4 and 7 of the 1987 Constitution. Id. at 18. Petitioner also argued that respondent NTC acted beyond its powers when it issued the press release of June 11, 2005. Id.

[15] Id. at 6.[16] Through the Comment filed by the Solicitor-General. Id. at 56-83.[17] Id. at 71-73.[18] Id. at 74-75.[19] The Court will exercise its power of judicial review only if the case is brought before it by a party who

has the legal standing to raise the constitutional or legal question. Legal standing means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term interest is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. Pimentel v. Executive Secretary, G.R. No. 158088, July 6,

2005, 462 SCRA 622, citing Joya vs. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA 568. See Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562563; and Agan v. PIATCO (Decision), 450 Phil. 744 (2003).

[20] Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmea v. COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750.

[21] See Agan v. PIATCO (Decision), 450 Phil. 744 (2003).[22] Philconsa v. Jimenez, 122 Phil. 894 (1965); Civil Liberties Union v. Executive Secretary, G.R. No.

83896, February 22, 1991, 194 SCRA 317; Guingona v. Carague, G.R. No. 94571, April 22, 1991, 196 SCRA 221;Osmea v. COMELEC, G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v. PAGCOR, 274 Phil. 323 (1991); Carpio v. Executive Secretary, G.R. No. 96409, February 14, 1992, 206 SCRA 290; Del Mar v. PAGCOR, 400 Phil. 307 (2000).

[23] Basco v. PAGCOR, 274 Phil. 323 (1991), citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, G.R. No. L-81311, June 30, 1988, 163 SCRA 371.

[24] 1987 PHIL. CONST. Art. III, 4.[25] U.S. Bill of Rights, First Amendment. (Congress shall make no lawabridging the freedom of speech,

or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.)

[26] The First Amendment was so crafted because the founders of the American government believed -- as a matter of history and experience -- that the freedom to express personal opinions was essential to a free government. See LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTION AND JUDICIAL REVIEW (2004).

[27] Article 19 of the 1948 Universal Declaration on Human Rights (UDHR) states: Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek,receive and impart information and ideas through any media and regardless of frontiers. Although the UDHR is not binding as a treaty, many of its provisions have acquired binding status on States and are now part of customary international law. Article 19 forms part of the UDHR principles that have been transformed into binding norms. Moreover, many of the rights in the UDHR were included in and elaborated on in the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by over 150 States, including the Philippines. The recognition of freedom of expression is also found in regional human rights instruments, namely, the European Convention on Human Rights (Article 10), the American Convention on Human Rights (Article 10), and the African Charter on Human and Peoples Rights (Article 9).

[28] Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).[29] Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458-459; Gonzales v.

COMELEC, 137 Phil. 489, 492-3 (1969); Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., 151-A Phil. 676-677 (1973); National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.

[30] Indeed, the struggle that attended the recognition of the value of free expression was discussed by Justice Malcolm in the early case United States v. Bustos, 37 Phil. 731, 739 (1918). Justice Malcolm generalized that the freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. Despite the presence of pamphlets and books early in the history of the Philippine Islands, the freedom of speech was alien to those who were used to obeying the words of barangay lords and, ultimately, the colonial monarchy. But ours was a history of struggle for that specific right: to be able to express ourselves especially in the governance of this country. Id.

[31] Id.[32] 137 Phil. 471, 492 (1969).[33] Id.

[34] Id. at 493, citing Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877 (1963).

[35] Id. citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).[36] Id.[37] Id.[38] Id.[39] Id. citing Terminiello v. City of Chicago, 337 US 1, 4 (1949).[40] Id. citing U.S. v. Schwimmer, 279 US 644, 655 (1929).[41] G.R. No. L-59329, July 19, 1985, 137 SCRA 628.[42] Gonzales v. COMELEC, 137 Phil. 471, 494(1969).[43] HECTOR S. DE LEON, I PHILIPPINE CONSTITUTIONAL LAW: PRINCIPLES AND CASES 485

(2003) [Hereinafter DE LEON, CONSTITUTIONAL LAW].[44] See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 16.1,

1131 (7th ed.2000 [Hereinafter NOWAK & ROTUNDA, CONSTITUTIONAL LAW].[45] DE LEON, CONSTITUTIONAL LAW at 485. Laws have also limited the freedom of speech and of

the press, or otherwise affected the media and freedom of expression. The Constitution itself imposes certain limits (such as Article IX on the Commission on Elections, and Article XVI prohibiting foreign media ownership); as do the Revised Penal Code (with provisions on national security, libel and obscenity), the Civil Code(which contains two articles on privacy), the Rules of Court (on the fair administration of justice and contempt) and certain presidential decrees. There is also a shield law, or Republic Act No. 53, as amended by Republic Act No. 1477. Section 1 of this law provides protection for non-disclosure of sources of information, without prejudice to ones liability under civil and criminal laws. The publisher, editor, columnist or dulyaccredited reporter of a newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any information or news report appearing in said publication, if the information was released in confidence to such publisher, editor or reporter unless the court or a Committee of Congress finds that such revelation is demanded by the security of the state.

[46] See NOWAK & ROTUNDA, CONSTITUTIONAL LAW 16.1, 1131 (7th ed.2000).[47] Id.[48] Cabansag v. Fernandez, 102 Phil. 151 (1957); Gonzales v. COMELEC, 137 Phil. 471 (1969).

See People v. Perez, 4 Phil. 599 (1905); People v. Nabong, 57 Phil. 455 (1933); People v. Feleo, 57 Phil. 451 (1933).

[49] This test was used by J. Ruiz-Castro in his Separate Opinion in Gonzales v. COMELEC, 137 Phil. 471, 532-537 (1969).

[50] Cabansag v. Fernandez, 102 Phil. 151 (1957).[51] ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).[52] See U.S. v. Bustos, 37 Phil. 731 (1918).[53] The aspect of freedom from liability subsequent to publication precludes liability for completed

publications of views traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of subsequent punishment, by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be punished when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words. As classically expressed, the freedom of the press embraces at the very least the freedom to discuss truthfully and publicly matters of public concern, without previous restraint or fear of subsequent punishment. For discussion to be innocent, it must be truthful, must concern something in which people in general take a healthy interest, and must not endanger some important social end that the government by law protects.

See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 225 (2003 ed.).

[54] Freedom of access to information regarding matters of public interest is kept real in several ways. Official papers, reports and documents, unless held confidential and secret by competent authority in the public interest, are public records. As such, they are open and subject to reasonable regulation, to the scrutiny of the inquiring reporter or editor. Information obtained confidentially may be printed without specification of the source; and that source is closed to official inquiry, unless the revelation is deemed by the courts, or by a House or committee of Congress, to be vital to the security of the State. Id.

[55] Freedom of circulation refers to the unhampered distribution of newspapers and other media among customers and among the general public. It may be interfered with in several ways. The most important of these iscensorship. Other ways include requiring a permit or license for the distribution of media and penalizing dissemination of copies made without it; [55] and requiring the payment of a fee or tax, imposed either on the publisher or on the distributor, with the intent to limit or restrict circulation. These modes of interfering with the freedom to circulate have been constantly stricken down as unreasonable limitations on press freedom. Thus, imposing a license tax measured by gross receipts for the privilege of engaging in the business of advertising in any newspaper, or charging license fees for the privilege of selling religious books are impermissible restraints on the freedom of expression. Id. citing Grosjean v. American Press Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943), and American Bible Society v. City of Manila,101 Phil. 386 (1957). It has been held, however, even in the Philippines, that publishers and distributors of newspapers and allied media cannot complain when required to pay ordinary taxes such as the sales tax. The exaction is valid only when the obvious and immediate effect is to restrict oppressively the distribution of printed matter.

[56] Id at 225.[57] Burgos v. Chief of Staff, 218 Phil. 754 (1984).[58] Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil.

780, 795 (2000) (Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption.); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496 ([A]ny system of prior restraint comes to court bearing a heavy burden against its constitutionality. It is the government which must show justification for enforcement of the restraint.). See also Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996) (religious speech falls within the protection of free speech).

[59] Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996), citing Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US 713 (1971).

[60] See J.B.L. Reyes v. Bagatsing, 210 Phil. 457 (1983), Navarro v. Villegas, G.R. No. L-31687, February 18, 1970, 31 SCRA 730; Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v. Fugosa, 80 Phil. 71 (1948).

[61] Determining if a restriction is content-based is not always obvious. A regulation may be content-neutral on its face but partakes of a content-based restriction in its application, as when it can be shown that the government only enforces the restraint as to prohibit one type of content or viewpoint. In this case, the restriction will be treated as a content-based regulation. The most important part of the time, place, or manner standard is the requirement that the regulation be content-neutral both as written and applied. See NOWAK & ROTUNDA, CONSTITUTIONAL LAW 16.1, 1133 (7th ed.2000).

[62] See Osmea v. COMELEC, 351 Phil. 692, 718 (1998). The Court looked to Adiong v. COMELEC, G.R. No. 103456, March 31, 1992, 207 SCRA 712, which had cited a U.S. doctrine, viz. A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated

to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.

[63] NOWAK & ROTUNDA, CONSTITUTIONAL LAW 16.1, 1133 (7th ed.2000). This was also called a deferential standard of review in Osmea v. COMELEC, 351 Phil. 692, 718 (1998). It was explained that the clear and present danger rule is not a sovereign remedy for all free speech problems, and its application to content-neutral regulations would be tantamount to using a sledgehammer to drive a nail when a regular hammer is all that is needed. Id. at 478.

[64] Osmea v. COMELEC, 351 Phil. 692, 717, citing Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712. It was noted that the test was actually formulated in United States v. OBrien, 391 U.S. 367 (1968), which was deemed appropriate for restrictions on speech which are content-neutral.

[65] Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996). In this case, it was found that the act of respondent Board of Review for Motion Pictures and Television of rating a TV program with X on the ground that it offend[s] and constitute[s] an attack against other religions which is expressly prohibited by law was a form of prior restraint and required the application of the clear and present danger rule.

[66] Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496.

[67] Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996).[68] Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v. Fernandez, 102 Phil. 151

(1957); and ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).[69] Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, cited in ABS-CBN

Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).[70] See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, and Gonzales v.

COMELEC, 137 Phil. 471 (1969), cited in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).

[71] See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.[72] See Osmea v. COMELEC, 351 Phil. 692 (1998).[73] Parenthetically, there are two types of content-based restrictions. First, the government may be totally

banning some type of speech for content (total ban). Second, the government may be requiring individuals who wish to put forth certain types of speech to certain times or places so that the type of speech does not adversely affect its environment.  See NOWAK & ROTUNDA, CONSTITUTIONAL LAW 16.1, 1131 (7th ed.2000).Both types of conten-based regulations are subject to strict scrutiny and the clear and present danger rule.

[74] Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496.

[75] This is based on a finding that broadcast regulation involves unique considerations, and that differences in the characteristics of new media justify differences in the First Amendment standards applied to them. Red Lion Broad. Co. v. Federal Communications Commission [FCC] , 395 U.S. 367, 386 (1969). See generally National Broadcasting Co. v. United States , 319 U.S. 190, 219 (1943) (noting that the public interest standard denoted to the FCC is an expansive power).

[76] See Federal Communications Commission [FCC] v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v. FCC , 492 U.S. 115 (1989) ; and Reno v. American Civil Liberties Union [ACLU] , 521 U.S. 844, 874 (1997) . In these cases, U.S. courts disregarded the argument that the offended listener or viewer could simply turn the dial and avoid the unwanted broadcast [thereby putting print and broadcast media in the same footing], reasoning that because the broadcast audience is constantly tuning in and out, prior warnings cannot protect the listener from unexpected program content.

[77] Red Lion Broad. Co. v. FCC , 395 U.S. 367, 386 (1969) . Red Lion involved the application of the fairness doctrine and whether someone personally attacked had the right to respond on the broadcast medium within the purview of FCC regulation. The court sustained the regulation.  The Court in Red Lion reasoned that because there are substantially more individuals who want to broadcast than there are frequencies available, this scarcity of the spectrum necessitates a stricter standard for broadcast media, as opposed to newspapers and magazines. See generally National Broadcasting v. United States , 319 U.S. 190, 219 (1943)  (noting that the public interest standard denoted to the FCC is an expansive power).

[78] See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v. FCC , 492 U.S. 115 (1989) ; and Reno v. American Civil Liberties Union [ACLU] , 521 U.S. 844, 874 (1997) . In FCC v. Pacifica Foundation, involving an FCC decision to require broadcasters to channel indecent programming away from times of the day when there is a reasonable risk that children may be in the audience, the U.S. Court found that the broadcast medium was an intrusive and pervasive one. In reaffirming that this medium should receive the most limited of First Amendment protections, the U.S. Court held that the rights of the public to avoid indecent speech trump those of the broadcaster to disseminate such speech. The justifications for this ruling were two-fold. First, the regulations were necessary because of the pervasive presence of broadcast media in American life, capable of injecting offensive material into the privacy of the home, where the right "to be left alone plainly outweighs the First Amendment rights of an intruder." Second, the U.S. Court found that broadcasting "is uniquely accessible to children, even those too young to read." The Court dismissed the argument that the offended listener or viewer could simply turn the dial and avoid the unwanted broadcast, reasoning that because the broadcast audience is constantly tuning in and out, prior warnings cannot protect the listener from unexpected program content.

[79] FCC v. League of Women Voters , 468 U.S. 364, 376 (1984) .[80] Id. at 380.[81] See Estrada v. Escritor (Resolution), A.M. No. P-02-1651, June 22, 2006 (free exercise of religion);

and Osmea v. COMELEC, 351 Phil. 692, 718 (1998) (speech restrictions to promote voting rights). The Court inOsmea v. COMELEC, for example, noted that it is a foreign notion to the American Constitution that the government may restrict the speech of some in order to enhance the relative voice of others [the idea being that voting is a form of speech]. But this Court then declared that the same does not hold true of the Philippine Constitution, the notion being in fact an animating principle of that document. 351 Phil. 692, 718 (1998).

[82] G.R. No. L-59329, July 19, 1985, 137 SCRA 628.[83] Id.[84] Id. at 634-637.[85] There is another case wherein the Court had occasion to refer to the differentiation between traditional

print media and broadcast media, but of limited application to the case at bar inasmuch as the issues did not invoke a free-speech challenge, but due process and equal protection. See Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, 352 Phil. 153 (1998) (challenge to legislation requiring broadcast stations to provide COMELEC Time free of charge).

[86] G.R. No. L-69500, July 22, 1985, 137 SCRA 717. In this case, the classification of a movie as For Adults Only was challenged, with the issue focused on obscenity as basis for the alleged invasion of the right to freedom on artistic and literary expression embraced in the free speech guarantees of the Constitution. The Court held that the test to determine free expression was the clear and present danger rule. The Court found there was an abuse of discretion, but did not get enough votes to rule it was grave. The decision specifically stated that the ruling in the case was limited to concept of obscenity applicable to motion pictures. Id. at 723-729.

[87] Id. at 725.

[88] Id.[89] ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (COMELEC Resolution restraining

ABS-CBN, a corporation engaged in broadcast media of television and radio, from conducting exit surveys after the 1998 elections). Although the decision was rendered after the 1998 elections, the Court proceeded to rule on the case to rule on the issue of the constitutionality of holding exit polls and the dissemination of data derived therefrom. The Court ruled that restriction on exit polls must be tested against the clear and present danger rule, the rule we unquestionably adhere to. The framing of the guidelines issued by the Court clearly showed that the issue involved not only the conduct of the exit polls but also its dissemination by broadcast media. And yet, the Court did not distinguish, and still applied the clear and present danger rule.

[90] 351 Phil. 692 (1998) (challenge to legislation which sought to equalize media access through regulation).

[91] Id. at 718.[92] Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, 352 Phil. 153

(1998) (challenge to legislation requiring broadcast stations to provide COMELEC Time free of charge).

[93] HELEN FENWICK, CIVIL LIBERTIES AND HUMAN RIGHTS 296 (3rd ed. 2002).[94] Id.[95] Stephen J. Shapiro, How Internet Non-Regulation Undermines The Rationales Used To Support

Broadcast Regulation, 8-FALL MEDIA L. & POL'Y 1, 2 (1999).[96] Technological advances, such as software that facilitates the delivery of live, or real-time, audio and

video over the Internet, have enabled Internet content providers to offer the same services as broadcasters. Indeed, these advancements blur the distinction between a computer and a television. Id. at 13.

[97] Id.[98] The current rationales used to support regulation of the broadcast media become unpersuasive in light

of the fact that the unregulated Internet and the regulated broadcast media share many of the same features. Id. In other words, as the Internet and broadcast media become identical, for all intents and purposes, it makes little sense to regulate one but not the other in an effort to further First Amendment principles. Indeed, as Internet technologies advance, broadcasters will have little incentive to continue developing broadcast programming under the threat of regulation when they can disseminate the same content in the same format through the unregulated Internet. In conclusion, "the theory of partial regulation, whatever its merits for the circumstances of the last fifty years, will be unworkable in the media landscape of the future." Id. at 23.

 

EN BANC

[G.R. No. 133486. January 28, 2000]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same."

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."[2] The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the x x x May 11 elections."[3]

In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.

The Court's Ruling

The Petition[5] is meritorious.

Procedural Issues:   Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.[6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."[7] Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,[8] when the issue involves the principle of social justice or the protection of labor,[9] when the decision or resolution sought to be set aside is a nullity,[10] or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.

Main Issue:   Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;[12] and relevant provisions of the Omnibus Election Code.[13] It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. x x x [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."[14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.[15] In the landmark case Gonzales v. Comelec,[16] this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change.[17] It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.[18] It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.[20] They are not immune to regulation by the State in the exercise of its police power.[21] While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the validity of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. x x x"[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent."[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well as in later ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The

question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[32]

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.[34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.[35] And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,[36] so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown.[37] Thus:

"A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."[38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly, stifle fundamental personal liberties, when the end can be more narrowly achieved.[39]

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage.[40]We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."[41] When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.[42]

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a

restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.[43]

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.[45] There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be

deprived of studies on the impact of current events and of election-day and other factors on voters' choices.

In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll restriction.[47]

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse to be interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials.[48] Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections.[49] These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelecen banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.

Melo, J., joins separate opinion of J. Vitug.

Vitug, J., see separate opinion.

Kapunan, J., see dissenting opinion.

Mendoza, J., joins separate opinion of J. Vitug.

Pardo, J., no part.

[1] Rollo, p. 14.[2] Ibid. Words in parentheses in the original; those in brackets supplied.[3] Petition, p. 4.[4] Rollo, p. 78 et seq.

[5] This case was deemed submitted for resolution on January 19, 1999, upon receipt by the Court of the Memorandum for the Respondent[6] See Gamboa Jr. v. Aguirre Jr., GR No. 134213, July 20, 1999.[7] 134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.[8] Solis v. NLRC, 263 SCRA 629, October 28, 1996.[9] Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.[10] Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190 SCRA 386, October 11, 1990.[11] Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils., Inc. v. NLRC, 176 SCRA 295, August 10, 1989; Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 111 SCRA 215, January 30, 1982.[12] "Sec. 2. The congress shall provide a system for securing the secrecy and sanctity of the ballot x x x."[13] Citing 195, 196, 207 and 261 (z-5, 7 & 16)[14] Salonga v. Cruz Pao, supra, pp. 458-459. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191, June 5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207 SCRA 712, 715, March 31, 1992.[15] 4, Art. III of the Constitution.[16] Supra, p. 856, per Fernando, J. (later CJ)[17] Ibid., p. 857; citing Emerson, toward a General Theory of the First Amendment (1966)[18] Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964)[19] US v. Schwimmer, 279 US 644 (1929)[20] Ibid., p. 858.[21] Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.[22] 102 Phil 152, October 18, 1957, per Bautista-Angelo, J.[23] Ibid., p. 161.[24] Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925)[25] 80 Phil 71 (1948)[26] 101 Phil 386 (1957)[27] 28 SCRA 351, May 26, 1969.[28] 31 SCRA 731, February 26, 1970.[29] 35 SCRA 28, September 11, 1970.[30] Supra.[31] 259 SCRA 529, July 26, 1996.[32] Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919)[33] Gonzales v. Comelec, supra, pp. 860-861.[34] Adiong v. Comelec, supra.[35] Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July 22, 1985.[36] Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283 US 697 (1931); Bantam books, Inc. v. Sullivan, 372 US 58 (1963); and New York Times Co. v. Sullivan, supra.[37] Blo Umpar Adiong v. Comelec, supra. See also National Press Club v. Comelec, supra.[38] Adiong v. Comelec, supra.[39] Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.[40] Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J. (later CJ)[41] Ibid., p. 236.[42] Adiong v. Comelec, supra.[43] Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985)[44] See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988)[45] See 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.[46] 838 F 2d 380 (9th Cir. 1988)[47] Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d 484 (1966); Vanasco v. Schwartz, 401 F Supp. 87, 100 (SDNY 1975), affd mem., 423 Us 1041, 96 S Ct. 763, 46 L Ed. 2d 630 (1976)[48] Exit Polls and the First Amendment, supra, p. 1935.[49] Petitioners Memorandum, p. 15.

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

  ERWIN TULFO, G.R. No. 161032Petitioner,Present:- versus - QUISUMBING, J., Chairperson,CARPIO MORALES,VELASCO, JR.,PEOPLE OF THE PHILIPPINES NACHURA,* andand ATTY. CARLOS T. SO, BRION, JJ.Respondents.x-------------------------------------------x SUSAN CAMBRI, REY SALAO, G.R. No. 161176JOCELYN BARLIZO, andPHILIP PICHAY,Petitioners,  - versus -COURT OF APPEALS, PEOPLEOF THE PHILIPPINES, and Promulgated:CARLOS SO,Respondents. September 16, 2008x-----------------------------------------------------------------------------------------x

 D E C I S I O N

 VELASCO, JR., J.:The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility. There is a fine line between freedom of expression and libel, and it falls on the courts to determine whether or not that line has been crossed.

 The Facts

 On the complaint of Atty. Carlos Ding So of the Bureau of Customs, four (4) separate informations were filed on September 8, 1999 with the Regional Trial Court in (RTC)Pasay City. These were assigned to Branch 112 and docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo, as author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the articles in the column Direct Hit in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.[1] The four informations read as follows:

 Criminal Case No. 99-1598

 That on or about the 11th day of May, 1999 in Pasay City, Metro Manila,

Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 11, 1999, its daily column DIRECT HIT, quoted hereunder, to wit:

 PINAKAMAYAMAN SA CUSTOMS

 Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman na yata na government official sa buong bansa sa pangungurakot lamang diyan sa South Harbor. Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo. Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro nito. Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo. Abangan bukas ang mga raket ni So sa BOC.

 WHEREIN said complainant was indicated as an extortionist, a corrupt

public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[2]

 Criminal Case No. 99-1599

 That on or about the 12th day of May, 1999 in Pasay City, Metro Manila,

Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 12, 1999, in daily column DIRECT HIT, quoted hereunder, to wit:

 SI ATTY. SO NG BOC

 LINTEK din sa pangungurakot itong Ding So ng Bureau of

Customs Intelligence Unit sa South Harbor. 

Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga importer na ayaw ideklara ang totoong laman ng mga container para makaiwas sa pagbayad ng malaking customs duties at taxes. Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito. Siyempre-binibigyan din niya ng salapi yung ibang mga ahensiya para pumikit na lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang taga BOC. Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga kawatan tulad ni So. Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-hold-up gang para kumita ng mas mabilis. Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang pagiging buwayang naka korbata at holdaper. Magnanakaw ka So!! WHEREIN said complainant was indicated as an extortionist, a corrupt

public official, smuggler and having illegally acquired wealth, all as already

stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[3]

 Criminal Case No. 99-1600

That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 19, 1999, in daily column DIRECT HIT, quoted hereunder, to wit:

 x x x x 

Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din ng lakas itong si Daniel Aquino ng Presidential Anti-Smuggling Unit na nakatalaga sa SouthHarbor.Tulad ni So, magnanakaw na tunay itong si Aquino. Panghihingi ng pera sa mga brokers, ang lakad nito.Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng kanilang kargamento.

 WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[4]

 Criminal Case No. 99-1597

That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant, ATTY. CARLOS DING T. SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on June 25, 1999, its daily column DIRECT HIT, quoted hereunder, to wit:

 x x x x 

Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban sa inyong lingkod at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong tarantadong si Atty. So dahil binanatan ko siya at inexpose ang kagaguhan niya sa BOC.

 Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil

hindi kita tatantanan. Buhay ka pa sinusunog na ang iyong kaluluwa sa impyerno.

 WHEREIN said complainant was indicated as an extortionist, a corrupt

public official, smuggler and having illegally acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion.[5]

  

On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were arraigned on December 15, 1999. They all pleaded not guilty to the offenses charged.

 At pre-trial, the following were admitted by petitioners: (1) that during the

four dates of the publication of the questioned articles, the complaining witness was not assigned at South Harbor; (2) that the accused and complaining witness did not know each other during all the time material to the four dates of publication; (3) that Remate is a newspaper/tabloid of general circulation in the Philippines; (4) the existence and genuineness of the Remate newspaper; (5) the column therein and its authorship and the alleged libelous statement as well as the editorial post containing the designated positions of the other accused; and (6) the prosecutions qualified admission that it is the duty of media persons to expose corruption.[6]

 The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty.

James Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The prosecution presented documentary evidence as well.

 Ablan testified that he had read the four columns written by Tulfo, and that

the articles were untrue because he had known Atty. So since 1992 and had worked with him in the Customs Intelligence and Investigation Service Division of the Bureau of Customs. He further testified that upon reading the articles written by Tulfo, he concluded that they referred to Atty. So because the subject articles

identified Atty. Carlos as Atty. Ding So of the Customs Intelligence and Investigation Service Division, Bureau of Customs and there was only one Atty. Carlos Ding So of the Bureau of Customs.[7]

 Fontanilla, Records Officer I of the Bureau of Customs, testified that she

issued a certification in connection with these cases upon the request of Atty. So.[8] This certification stated that as per records available in her office, there was only one employee by the name of Atty. Carlos T. So who was also known as Atty. Ding So in the Intelligence Division of the Customs Intelligence and Investigation Service or in the entire Bureau of Customs.[9]

 Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia

Ni Kristo and as a lawyer, and that having read the articles of Tulfo, he believed that these were untrue, as he knew Atty. Carlos Ding So.[10]

 Atty. So testified that he was the private complainant in these consolidated

cases. He further testified that he is also known as Atty. Ding So, that he had been connected with the Bureau of Customs since October 1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation Service Division at the Manila International Container Port since December 27, 1999. He executed two complaint-affidavits, one dated June 4, 1999 and the other dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases of libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that petitioner Tulfos act of imputing upon him criminality, assailing his honesty and integrity, caused him dishonor, discredit, and contempt among his co-members in the legal profession, co-officers of the Armed Forces of the Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and employees and superior officers in the Bureau of Customs, and among ordinary persons who had read said articles. He said it also caused him and his family sleepless nights, mental anguish, wounded feelings, intrigues, and embarrassment. He further testified that he included in his complaint for libel the officers of Remate such as the publisher, managing editor, city editor, and national editor because under Article 360 of the Revised Penal Code (RPC), they are equally responsible and liable to the same extent as if they were the author of the articles. He also testified that Ding is his nickname and that he is the only person in

the entire Bureau of Customs who goes by the name of Atty. Carlos T. So or Atty. Carlos Ding So.[11]

 In his defense, petitioner Tulfo testified that he did not write the subject

articles with malice, that he neither knew Atty. So nor met him before the publication of the articles. He testified that his criticism of a certain Atty. So of the South Harbor was not directed against the complainant, but against a person by the name of Atty. Ding So at theSouth Harbor. Tulfo claimed that it was the practice of certain people to use other peoples names to advance their corrupt practices. He also claimed that his articles had neither discredited nor dishonored the complainant because as per his source in the Bureau of Customs, Atty. So had been promoted. He further testified that he did not do any research on Atty. So before the subject articles, because as a columnist, he had to rely on his source, and that he had several sources in the Bureau of Customs, particularly in the SouthHarbor.[12]

Petitioner Salao testified that he came to know Atty. Carlos Ding So when the latter filed a case against them. He testified that he is an employee of Carlo Publishing House, Inc.; that he was designated as the national editor of the newspaper Remate since December 1999; that the duties of the position are to edit, evaluate, encode, and supervise layout of the news from the provinces; and that Tulfo was under the supervision of Rey Briones, Vice President for Editorial and Head of the Editorial Division. Salao further testified that he had no participation in the subject articles of Tulfo, nor had he anything to do with the latters column.[13]

 Petitioner Cambri, managing editor of Remate, testified that she classifies

the news articles written by the reporters, and that in the Editorial Division, the officers are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and Salao as national editor. She testified that petitioner Barlizo is her subordinate, whose duties and responsibilities are the typesetting, editing, and layout of the page assigned to her, the Metro page. She further testified that she had no participation in the writing, editing, or publication of the column of Tulfo because the column was not edited. She claimed that none among her co-accused from the Remate newspaper edited the columns of Tulfo, that the publication and editing of the subject articles were the responsibility of Tulfo, and that he was given

blanket authority to write what he wanted to write. She also testified that the page wherein Tulfos column appeared was supervised by Bueno as news editor.[14]

 Petitioner Pichay testified that he had been the president of Carlo Publishing

House, Inc. since December 1998. He testified that the company practice was to have the columnists report directly to the vice-president of editorials, that the columnists were given autonomy on their columns, and that the vice-president for editorials is the one who would decide what articles are to be published and what are not. He further testified that Tulfo was already a regular contributor.[15]

 The Ruling of the RTC

 In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The dispositive portion reads as follows: 

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and penalized by prision correccional in its minimum and medium periods, or a fine ranging from P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the same Code. Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the accused to suffer imprisonment of SIX (6) MONTHS of arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum, for EACH count with accessory penalties provided by law. Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay wrote and published the four (4) defamatory articles with reckless disregard, being, in the mind of the Court, of whether it was false or not, the said articles libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the sum of ONE MILLION PESOS (P1,000,000.00), as moral damages, and an additional amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00), by way of exemplary damages, all with subsidiary imprisonment, in case of insolvency, and to pay the costs. SO ORDERED.[16]

  

The Ruling of the Court of Appeals

 Before the Court of Appeals (CA), Tulfo assigned the following errors:

 1.      THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED

TESTIMONY OF THE APPELLANT THAT HE DID NOT CRITICIZE THE PRIVATE COMPLAINANT WORKING AT THE NAIA. HE CRITICIZED ANOTHER PERSON WORKING AT THE SOUTH HARBOR. HENCE, THE ELEMENT OF IDENTITY IS LACKING.

2.      THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE.

3.      THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS DING SO.[17]

His co-accused assigned the following errors: A

 The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay liable for the defamations contained in the questioned articles despite the fact that the trial court did not have any finding as to their participation in the writing, editing and/or publication of the questioned articles. 

B 

The trial court seriously erred in concluding that libel was committed by all of the accused on the basis of its finding that the elements of libel have been satisfactorily established by evidence on record. 

C 

The trial court seriously erred in considering complainant to be the one referred to by Erwin Tulfo in his articles in question.[18]

   

In a Decision[19] dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed the judgment of the trial court. A motion for reconsideration dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a motion for reconsideration dated July 2, 2003. In a Resolution dated December 11, 2003, both motions were denied for lack of merit.[20]

 

 Petitions for Review on Certiorari under Rule 45

 Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA in CA-G.R. CR No. 25318 which affirmed the decision of the RTC.Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition docketed as G.R. No. 161176, seeking the nullification of the same CA decision. In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from the same set of facts, involve the same parties, assail the same decision of the CA, and seek identical reliefs.[21]

 Assignment of Errors

 Petitioner Tulfo submitted the following assignment of errors:

 I 

Assuming that the Prosecution presented credible and relevant evidence, the Honorable CA erred in not declaring the assailed articles as privileged; the CA erred in concluding that malice in law exists by the courts having incorrectly reasoned out that malice was presumed in the instant case. 

II 

Even assuming arguendo that the articles complained of are not privileged, the lower court, nonetheless, committed gross error as defined by the provisions of Section 6 of Rule 45 by its misappreciation of the evidence presented on matters substantial and material to the guilt or innocence of the petitioner.[22]

  

Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows:

  A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised Penal Code By Holding Cambri, Salao And Barlizo Liable For The Defamatory Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply Because They Were Managing Editor, National Editor And City Editor Respectively Of Remate And By Holding Pichay Also Liable For Libel Merely Because He Was The President Of Carlo Publishing House, Inc. Without Taking

Into Account The Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question. B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly Disregarding The Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question. C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The Person Referred To In The Published Articles Was Private Complainant Atty. Carlos So.[23]

  

Our RulingThe petitions must be dismissed. The assignment of errors of petitioner Tulfo shall be discussed first. In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals.[24] In essence, he argues that the subject articles fall under qualifiedly privileged communication under Borjal and that the presumption of malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the prosecution to prove malice in fact. This case must be distinguished from Borjal on several points, the first being that Borjal stemmed from a civil action for damages based on libel, and was not a criminal case.Second, the ruling in Borjal was that there was no sufficient identification of the complainant, which shall be differentiated from the present case in discussing the second assignment of error of Tulfo. Third, the subject in Borjal was a private citizen, whereas in the present case, the subject is a public official. Finally, it was held in Borjal that the articles written by Art Borjal were fair commentaries on matters of public interest.[25] It shall be discussed and has yet to be determined whether or not the articles fall under the category of fair commentaries. In passing, it must be noted that the defense of Tulfos articles being qualifiedly privileged communication is raised for the first time in the present petition, and this particular issue was never brought before either the RTC or the CA. Thus, neither the RTC nor the CA had a chance to properly consider and evaluate this

defense. Tulfo now draws parallels between his case and that of Art Borjal, and argues that the prosecution should have proved malice in fact, and it was error on the part of the trial and appellate courts to use the presumption of malice in law in Art. 354 of the RPC. This lays an unusual burden on the part of the prosecution, the RTC, and the CA to refute a defense that Tulfo had never raised before them. Whether or not the subject articles are privileged communications must first be established by the defense, which it failed to do at the level of the RTC and the CA. Even so, it shall be dealt with now, considering that an appeal in a criminal proceeding throws the whole case open for review. There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of Customs Intelligence and Investigation Service at the Ninoy Aquino International Airport (NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of Customs, a government agency, are matters of public interest. It is now a matter of establishing whether the articles of Tulfo are protected as qualified privileged communication or are defamatory and written with malice, for which he would be liable.

   

Freedom of the Press v. Responsibility of the Press 

The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of public interest. Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others. The Journalists Code of Ethics adopted by the National Union of Journalists of the Philippines shows that the press recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries duties and responsibilities. Art. I of said code states that journalists recognize the duty to air the other side and the

duty to correct substantive errors promptly. Art. VIII states that journalists shall presume persons accused of crime of being innocent until proven otherwise. In the present case, it cannot be said that Tulfo followed the Journalists Code of Ethics and exercised his journalistic freedom responsibly. In his series of articles, he targeted one Atty. Ding So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying ikaw na yata ang pinakagago at magnanakaw sa miyembro nito.[26] He accused Atty. So of stealing from the government with his alleged corrupt activities.[27] And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].[28]

In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject articles. He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at the Bureau of Customs. In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and even stated that he had been the victim of such a practice. He argued then that it may have been someone else using the name of Atty. So for corrupt practices at the South Harbor, and this person was the target of his articles.This argument weakens his case further, for even with the knowledge that he may be in error, even knowing of the possibility that someone else may have used Atty. Sos name, as Tulfo surmised, he made no effort to verify the information given by his source or even to ascertain the identity of the person he was accusing. The trial court found Tulfos accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles does not affect their privileged character. It may be that the falsity of the articles does not prove malice. Neither did Borjal give journalists carte blanche with regard to their publications. It cannot be said that a false article accusing a public figure would always be covered by the mantle of qualified privileged communication. The portion of Borjal cited by Tulfo must be scrutinized further:

 Even assuming that the contents of the articles are false, mere error,

inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held

 A newspaper especially one national in reach and coverage,

should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.

 To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of actual malice on the part of the person making the libelous statement.[29] (Emphasis supplied.)  

Reading more deeply into the case, the exercise of press freedom must be done consistent with good faith and reasonable care. This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to the instances of qualified privileged communications is reproduced as follows:

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair

comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[30] (Emphasis supplied.)  

The expansion speaks of fair commentaries on matters of public interest. While Borjal places fair commentaries within the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from liability. Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a false allegation of fact or a comment based on a false supposition. As previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify the information before publishing his articles. Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this source for his columns, but did no further research on his story. The records of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfos articles related no specific details or acts committed to prove Atty. So was indeed a corrupt public official. These columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official. Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public officials in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech.[31] Journalists still bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest.As held in In Re: Emil P. Jurado:

 Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman may ecape liability who

publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources.[32]

  

The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed source. It is not demanded of him that he name his source. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof. The rumors and gossips spread by unnamed sources are not truth. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted by facts. Jurado also established that the journalist should exercise some degree of care even when writing about public officials. The case stated:

Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines.[33]

 Tulfo has clearly failed in this regard. His articles cannot even be considered

as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. This particular provision has several elements which must be present in order for the report to be exempt from the presumption of malice. The provision can be dissected as follows:

  In order that the publication of a report of an official proceeding may be

considered privileged, the following conditions must exist: (a)                That it is a fair and true report of a judicial, legislative, or other

official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions;

(b)               That it is made in good faith; and(c)                That it is without any comments or remarks.[34]

The articles clearly are not the fair and true reports contemplated by the provision. They provide no details of the acts committed by the subject, Atty. So. They are plain and simple baseless accusations, backed up by the word of one unnamed source. Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication. Tulfo goes even further to attack the character of the subject, Atty. So, even calling him a disgrace to his religion and the legal profession. As none of the elements of the second paragraph of Art. 354 of the RPC is present in Tulfos articles, it cannot thus be argued that they are qualified privileged communications under the RPC.

 Breaking down the provision further, looking at the terms fair and true,

Tulfos articles do not meet the standard. Fair is defined as having the qualities of impartiality and honesty.[35] True is defined as conformable to fact; correct; exact; actual; genuine; honest.[36] Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it has been shown that these

allegations were baseless. The articles are not fair and true reports, but merely wild accusations.

 Even assuming arguendo that the subject articles are covered by the shield

of qualified privileged communication, this would still not protect Tulfo. In claiming that his articles were covered by qualified privileged

communication, Tulfo argues that the presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in fact. He then argues that for him to be liable, there should have been evidence that he was motivated by ill will or spite in writing the subject articles.

 The test to be followed is that laid down in New York Times Co. v. Sullivan,

[37] and reiterated in Flor v. People, which should be to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[38]

 The trial court found that Tulfo had in fact written and published the subject

articles with reckless disregard of whether the same were false or not, as proven by the prosecution. There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did not know the subject, Atty. So, personally, there was no malice attendant in his articles. The test laid down is the reckless disregard test, and Tulfo has failed to meet that test.

 The fact that Tulfo published another article lambasting respondent Atty. So

can be considered as further evidence of malice, as held in U.S. vs. Montalvo,[39] wherein publication after the commencement of an action was taken as further evidence of a malicious design to injure the victim. Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of malice.

Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court misappreciated the evidence presented as to the identity

of the complainant: that Tulfo wrote about Atty. Ding So, an official of the Bureau of Customs who worked at the South Harbor, whereas the complainant was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt as to the identity of the real party referred to in the articles.

This argument is patently without merit. The prosecution was able to present the testimonies of two other witnesses

who identified Atty. So from Tulfos articles. There is the certification that there is only one Atty. So in the Bureau of Customs. And most damning to Tulfos case is the last column he wrote on the matter, referring to the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty. So, stating that the libel case was due to the exposs Tulfo had written on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission on the part of Tulfo that Atty. So was in fact the target of his attacks. He cannot now point to a putative Atty. Ding So at South Harbor, or someone else using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence or non-existence of an Atty. So atSouth Harbor, nor investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his articles, when all the evidence points to one Atty. So, the complainant in the present case.

 Having discussed the issue of qualified privileged communication and the

matter of the identity of the person referred to in the subject articles, there remains the petition of the editors and president of Remate, the paper on which the subject articles appeared.

 In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they

had no participation in the editing or writing of the subject articles, and are thus not liable.

 The argument must fail. The language of Art. 360 of the RPC is plain. It lists the persons responsible

for libel:

Art. 360. Persons responsible.Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. 

 The claim that they had no participation does not shield them from

liability. The provision in the RPC does not provide absence of participation as a defense, but rather plainly and specifically states the responsibility of those involved in publishing newspapers and other periodicals. It is not a matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as they were the author.

 Neither the publisher nor the editors can disclaim liability for libelous

articles that appear on their paper by simply saying they had no participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles appeared, when they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the publishing company.

 As Tulfo cannot simply say that he is not liable because he did not fulfill his

responsibility as a journalist, the other petitioners cannot simply say that they are not liable because they did not fulfill their responsibilities as editors and publishers. An editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article. [40] On the theory that it is the duty of the editor or manager to know and control the contents of the paper,[41] it is held that said person cannot evade responsibility by abandoning the duties to employees,[42] so that it is immaterial whether or not the editor or manager knew the contents of the publication. [43] In Fermin v. People of the Philippines,[44] the Court held that the publisher could not escape liability by claiming lack of participation in the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the

persons enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating:

  According to the legal doctrines and jurisprudence of the United States,

the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers.

 x x x x In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St.

Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783):

 The question then recurs as to whether the manager or proprietor of a

newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.

 The manager and proprietor of a newspaper, we think ought to be held

prima facie criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x.

 One who furnishes the means for carrying on the publication of a

newspaper and entrusts its management to servants or employees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x.

 We think, therefore, the mere fact that the libelous article was published in

the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.

 In the case of Commonwealth vs. Morgan (107 Mass., 197), this same

question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published

in the same paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:

 It is the duty of the proprietor of a public paper, which may be used for the

publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published. (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)

 The above doctrine is also the doctrine established by the English

courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper.

 This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr.

Justice Foster. Lofft, an English author, in his work on Libel and Slander, said: An information for libel will lie against the publisher of a papers, although

he did not know of its being put into the paper and stopped the sale as soon as he discovered it.

 In the case of People vs. Clay (86 Ill., 147) the court held that A person who makes a defamatory statement to the agent of a newspaper

for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it.[45]

  

Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.

 Though we find petitioners guilty of the crime charged, the punishment must

still be tempered with justice. Petitioners are to be punished for libel for the first time. They did not apply for probation to avoid service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel, removed the penalty of imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals,[47] the accused was merely fined in lieu of the original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free

press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in case of insolvency, should suffice.[48] Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration.

 The award of damages by the lower court must be modified. Art. 2199 of the

Civil Code provides, Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. There was no showing of any pecuniary loss suffered by the complainant Atty. So. Without proof of actual loss that can be measured, the award of actual damages cannot stand.

 In Del Mundo v. Court of Appeals, it was held, as regards actual and moral

damages: A party is entitled to an adequate compensation for such pecuniary loss

actually suffered by him as he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be presumed, and courts, in making an award must point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne.

 Moral damages, upon the other hand, may be awarded to compensate one

for manifold injuries such as physical suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be awarded, the amount of indemnity being left to the sound discretion of the court, it is imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung from any of the cases expressed in Article 2219 and Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code which underlies, or gives rise to, the case or proceeding on the one hand, and the resulting injury, on the other hand; i.e. the first must be the proximate cause and the latter the direct consequence thereof.[49]

 

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral damages. Justification for the award of moral damages is found in Art. 2219(7) of the Civil Code, which states that moral damages may be recovered in cases of libel, slander, or any other form of defamation. As the cases involved are criminal cases of libel, they fall squarely within the ambit of Art. 2219(7).

 Moral damages can be awarded even in the absence of actual or

compensatory damages. The fact that no actual or compensatory damage was proven before the trial court does not adversely affect the offended partys right to recover moral damages.[50]

 And while on the subject of moral damages, it may not be amiss to state at

this juncture that Tulfos libelous articles are abhorrent not only because of its vilifying and demeaning effect on Atty. So himself, but also because of their impact on members of his family, especially on the children and possibly even the childrens children.

 The Court can perhaps take judicial notice that the sense of kinship runs

deeply in a typical Filipino family, such that the whole family usually suffers or rejoices at the misfortune or good fortune, as the case may be, of any of its member. Accordingly, any attempt to dishonor or besmirch the name and reputation of the head of the family, as here, invariably puts the other members in a state of disrepute, distress, or anxiety. This reality adds an imperative dimension to the award of moral damages to the defamed party.

 The award of exemplary damages, however, cannot be justified. Under Art.

2230 of the Civil Code, In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. No aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary damages can be awarded.

 Conclusion

 

The press wields enormous power. Through its widespread reach and the information it imparts, it can mold and shape thoughts and opinions of the people. It can turn the tide of public opinion for or against someone, it can build up heroes or create villains.

 It is in the interest of society to have a free press, to have liberal discussion

and dissemination of ideas, and to encourage people to engage in healthy debate. It is through this that society can progress and develop.

 Those who would publish under the aegis of freedom of the press must also

acknowledge the corollary duty to publish responsibly. To show that they have exercised their freedom responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There must be further investigation conducted, some shred of proof found to support allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy the reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations. Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of the press and the corresponding duty to exercise that power judiciously cannot be understated.

 But even with the need for a free press, the necessity that it be free does not

mean that it be totally unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power responsibly. It may be a clich that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought.

 A robust and independently free press is doubtless one of the most effective

checks on government power and abuses. Hence, it behooves government functionaries to respect the value of openness and refrain from concealing from media corruption and other anomalous practices occurring within their backyard. On the other hand, public officials also deserve respect and protection against false innuendoes and unfounded accusation of official wrongdoing from an abusive press. As it were, the law and jurisprudence on libel heavily tilt in favor of

press freedom. The common but most unkind perception is that government institutions and their officers and employees are fair game to official and personal attacks and even ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official misconduct often times merit front page or primetime treatment, while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not enough.

Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously false imputation of corruption and dishonesty against a public official, as here, leaves a stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate analysis, public service also unduly suffers.

WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176 are DISMISSED. The CA Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of imprisonment, the penalty to be imposed upon petitioners shall be a fine of six thousand pesos (PhP 6,000) for each count of libel, with subsidiary imprisonment in case of insolvency, while the award of actual damages and exemplary damages is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in Criminal Case Nos. 99-1597 to 99-1600 is modified to read as follows:

 WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN

CAMBRI, REY SALAO, JOCELYN BARLIZO, and PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal Code, and sentences EACH of the accused to pay a fine of SIX THOUSAND PESOS (PhP 6,000) per count of libel with subsidiary imprisonment, in case of insolvency.

 Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao,

Jocelyn Barlizo, and Philip Pichay wrote and published the four (4) defamatory articles with reckless disregard whether it was false or not, the said articles being libelous per se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and severally, the sum of ONE MILLION PESOS (PhP 1,000,000) as moral damages. The claim of actual and exemplary damages is denied for lack of merit.

 Costs against petitioners.

SO ORDERED.

  

PRESBITERO J. VELASCO, JR.Associate JusticeWE CONCUR:

 LEONARDO A. QUISUMBING

Associate JusticeChairperson

   

 CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURAAssociate Justice Associate Justice

    

ARTURO D. BRIONAssociate Justice

  

A T T E S T A T I O N I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.   

LEONARDO A. QUISUMBINGAssociate Justice

Chairperson   

C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had

been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.    REYNATO S. PUNOChief Justice

 Additional member as per August 27, 2008 raffle.[1] Rollo (G.R. No. 161032), p. 39.[2] Id. at 38-39.[3] Id. at 39-40.[4] Id. at 40-41.[5] Id. at 41-42.[6] Id. at 42.[7] Id. at 43.[8] Id. at 44.[9] Rollo (G.R. No. 161176), p. 88.[10] Rollo (G.R. No. 161032), p. 44.[11] Id. at 45-46.[12] Id. at 46-47.[13] Id. at 48-49.[14] Id. at 49-50.[15] Id. at 50-51.[16] Id. at 38-39.[17] Id. at 52.[18] Id. at 53.

[19] Penned by Associate Justice Mercedes Gozo-Dadole and concurred in by Associate Justices Conrado M. Vasquez, Jr. and Rosemari D. Carandang.

[20] Rollo (G.R. No. 161032), p. 68.[21] Rollo (G.R. No. 161176), p. 168.[22] Rollo (G.R. No. 161032), pp. 16-17.[23] Rollo (G.R. No. 161176), p. 20.[24] G.R. No. 126466, January 14, 1999, 301 SCRA 1.[25] Id. at 22.[26] Rollo (G.R. No. 161032), p. 10.[27] Id. at 11.[28] Id. at 12.[29] Supra note 24, at 30-31.[30] Borjal, supra at 23.[31] Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 574.[32] A.M. No. 93-2-037 SC, April 6, 1995, 243 SCRA 299, 332.

[33] Id. at 327.[34] 2 Reyes, Luis B., THE REVISED PENAL CODE 858 (13th ed., 1993).

[35] BLACKS LAW DICTIONARY 595 (6th ed., 1990).[36] Id. at 1508.[37] 376 US 254, 11 L ed. 2nd 686.[38] G.R. No. 139987, March 31, 2005, 454 SCRA 440, 456.[39] 29 Phil. 595 (1915).

[40] Smith v. Utley, 92 Wis 133, 65 NW 744; Faulkner v. Martin, 133 NJL 605, 45 A2d 596; World Pub. Co. v. Minahan, 70 Okla 107, 173 P 815.[41] Faulkner, supra.[42] World Pub. Co., supra.[43] Faulkner, supra; Goudy v. Dayron Newspapers, Inc., 14 Ohio App 2d 207, 43 Ohio Ops 2d 444, 237 NE2d 909.[44] G.R. No. 157643, March 20, 2008.[45] U.S. v. Ocampo, 18 Phil. 1, 50-52 (1910).[46] G.R. No. 142409, March 24, 2006, 485 SCRA 275.[47] G.R. No. 120715, March 29, 1996, 255 SCRA 692.[48] Administrative Circular No. 08-2008. See Fermin v. People, G.R. No. 157643, March 28, 2008.

[49] G.R. No. 1045676, January 20, 1995, 240 SCRA 348, 356-357.[50] Patricio v. Leviste, G.R. No. 51832, April 26, 1989, 172 SCRA 774, 781.

EN BANC

[G.R. No. 124540. November 14, 1997]

MERLINDA JACINTO, ADELINA AGUSTIN, SUSAN AGUSTIN, EVELYN ATIENZA, NIDA BALANE, ANICIA CARLOS, CELEDONIA CARLOS, LIWANAG CASTILLO, JOSEFINA DE GUZMAN, MINERVA GARCIA, MARIA GATDULA, ALICIA GUNDA, AURORA LOPEZ, CARMENCITA MANANSALA, ERLINDA MARTINEZ, LOLITA NAVARRETE, GUADALUPE PANERGO, MARIA PULGA, PAZ SERRA and VIRGINIA ZAMORA, petitioners, vs. HON. COURT OF APPEALS; THE CIVIL SERVICE COMMISSION; and THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondents.

D E C I S I O N

PANGANIBAN, J.:

While we recognize and appreciate the toil and hardship of our public schoolteachers in fulfilling the states responsibility of educating our children, and realize their inadequately addressed plight as compared to other professionals, we have the equal task of promoting the larger public interest which withholds from them and other similarly situated government workers the right to engage in mass actions resulting in work stoppages for any purpose. Although the Constitution vests in them the right to organize, to assemble peaceably and to petition the government for a redress of grievances, there is no like express provision granting them the right to strike. Rather, the constitutional grant of the right to strike is restrained by the proviso that its exercise shall be done in accordance with law.

The Case

Before us is a petition for review under Rule 45 of the Rules of Court seeking to set aside the November 27, 1995 Decision[1] of the Court of Appeals[2] in CA-G.R. SP No. 37596, which found no grave abuse of discretion on the part of the Civil Service Commission (CSC) in issuing its resolutions[3] disposing of the separate appeals and motions for reconsideration of herein petitioners. The dispositive portions of most of the CSC resolutions, with the exception of the name of the appellant concerned, uniformly read:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to find Susan Agustin guilty of Conduct Prejudicial to the Best Interest of the Service. She is meted out the penalty of six (6) months suspension without pay. Agustin is now automatically reinstated in the service without payment of back salaries.[4]

As regards Petitioner Merlinda Jacinto, the decretal portion of the resolution pertaining to her case reads:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to find Merlinda Jacinto guilty of Violation of Reasonable Office Rules and Regulations. She is hereby meted out the penalty of reprimand. She is automatically reinstated in the service without payment of back salaries.[5]

In a Resolution[6] dated March 29, 1996, Respondent Court of Appeals denied the petitioners motion for reconsideration.

The Facts

The following are the antecedents of the case as narrated by the Court of Appeals, which we find substantiated by the records:

Petitioners are public school teachers from various schools in Metropolitan Manila. Between the period September 17 to 21, 1990, they incurred unauthorized absences in connection with the mass actions then staged; and on September 17, 1990, DECS Secretary Isidro Cario immediately issued a return-to-work order worded as follows:

TO: ALL PUBLIC SCHOOL TEACHERS AND OTHER DECS PERSONNEL

SUBJECT: RETURN TO WORK ORDER

Under Civil service law and rules, strikes, unauthorized mass leaves and other forms of mass actions by civil servants which disrupt public services are strictly prohibited.

Those of you who are engaged in the above-mentioned prohibited acts are therefore ordered, in the interest of public service, to return to work within 24 hours from your walkout otherwise dismissal proceedings shall be instituted against you. (Underscoring supplied).

The directive was ignored by petitioners. Consequently, on separate dates, Secretary Cario issued formal charges and preventive suspension orders against them. They were administratively charged with gross misconduct; gross neglect of duty, etc. for joining unauthorized mass actions; ignoring report-to-work directives; unjustified abandonment of teaching posts; non-observance of Civil Service law, rules and regulations; non-compliance with reasonable office rules and regulations; and incurring unauthorized absences without leave, etc. An investigation committee was then created by Sec. Cario to look into the matter. However, during the investigation, petitioners did not file their answers or controvert the charges against them. As a consequence, Sec. Cario, in his decisions found them guilty as charged and imposed the penalty of dismissal, except with respect to petitioners Merlinda Jacinto and Adelina Agustin who were meted only six (6) months suspension.

The decisions were appealed to the Merit Systems Protection Board (MSPB) which dismissed the appeals for lack of merit and then to the Civil Service Commission which set aside the Orders of the MSPB in the contested resolutions. The Civil Service Commission, in separate resolutions, found the petitioners (except Merlinda Jacinto) guilty of Conduct Prejudicial to the Best Interest of the Service; imposed upon them the penalty of six (6) months suspension without pay; and automatically reinstated them to the service without payment of back salaries x x x. In the case of Petitioner Merlinda Jacinto, the CSC found her guilty of Violation of Reasonable Office Rules and Regulations; imposed upon her the penalty of reprimand; and automatically reinstated her in the service without payment of back salaries x x x.

Acting on the motions for reconsideration, the CSC rendered the assailed resolutions denying the motions for lack of merit.[7]

Petitioners initially questioned the CSC resolutions directly before this Court in petitions docketed as G.R. Nos. 118252 to 118271. In accordance with Revised Administrative Circular 1-95, we referred them to the Court of Appeals.

Respondent Court found that the petitioners absented themselves from their classes in furtherance of or in connection with the mass action for the purpose of pressuring the government to grant their demands. Citing the resolution of this Court in MPSTA vs. Laguio[8] that the mass actions staged by the public schoolteachers from

September 17 to September 19, 1990, were to all intents and purposes a strike, it denied the petition, since the right to strike did not extend to civil service employees. In the case of Merlinda Jacinto, Respondent Court found no error on the part of the CSC in finding her guilty of violation of reasonable office rules and regulations. Neither did it find the petitioners entitled to backwages for the period of their preventive suspension, as they were not exonerated of the charges against them.

Hence, this petition.[9]

Issues

Petitioners raise the following grounds for their appeal:

I. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that penalized all the petitioners whose only offense (except Jacinto) was to exercise their constitutional right peaceably to assemble and petition the government for redress of grievances.

II. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that penalized Petitioner Jacinto for an alleged offense which has no basis whatsoever thereby violating her right to security of tenure.

III. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that denied petitioners their right to backwages covering the period when they were illegally not allowed to teach.[10]

Preliminarily, we note that the remedy resorted to by petitioners is a petition for review under Rule 45 of the Rules of Court which, however, allows only questions of law.[11]Jurisprudence has extended this remedy to questions of fact in exceptional cases.[12] Where the issues raised involve lack of jurisdiction or grave abuse of discretion as in this case, the Rules provide for a different remedy -- Rule 65. In the interest of substantial justice, however, we hereby decide to deal with this petition as one filed under Rule 45, as denominated in its prefatory paragraph, and treat the grave abuse of discretion on the part of Respondent Court of Appeals as allegations of reversible errors.

The Courts Ruling

The petition, which fails to convince us, merits only dismissal.

First Issue: Improper Exercise of the Right to Peaceful Assembly and to Petition for a Redress of Grievances

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[13] and 8[14] of the Bill of Rights, Section 2(5) [15] of Article IX, and Section 3[16] of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights.As early as the onset of this century, this Court, in U.S. vs. Apurado,[17] 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 disorderlyand seditious conduct and between an essentially peaceable assembly and a tumultuous uprising.[18]

Primicias vs. Fugoso[19] further sustained the supremacy of the freedoms of speech and of assembly over comfort and convenience in the use of streets or parks. Although the Court opined that the exercise of the rights of free speech and of peaceful assembly to petition the government for redress of grievances 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, regulation was limited to the mayors reasonable discretion in issuing a permit to determine or specify only the streets or public places to be used for the purpose and to provide adequate and proper policing to minimize the risk of disorder. Quoting Justice Brandeis in his concurring opinion in Whitney vs. California, the Court said:[20]

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one x x x.

x x x x x x x x x

x x x The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. x x x

This limitation was strictly applied in Reyes vs. Bagatsing,[21] in which the Court [was] called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. In that case, retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the mayor of Manila to hold a march and a rally starting from Luneta, proceeding through Roxas Boulevard to the gates of the U.S. Embassy, to be attended by local and foreign participants to the International Conference for General Disarmament, World Peace and the Removal of All Foreign Military Bases. The Manila mayor denied them the permit due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for. In reversing the mayor, this Court stated that to justify limitations on freedom of assembly, there must be proof of sufficient weight to satisfy the clear and present danger[22] test. Thereafter, the Court proceeded to summarize the rules on assembly and petition,[23] making the clear-and-present danger rule the standard for refusing or modifying the grant of a permit. But it stressed that the presumption must be to incline the weight of the scales of justice on the side of such rights [of free speech and peaceable assembly], enjoying as they do precedence and primacy.

Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc.,[24] which was promulgated after the proclamation of martial law, further underscored the supremacy of these basic constitutional rights, this time over property rights. Speaking through Mr. Justice Makasiar, the Court explained:

x x x the primacy of human rights -- freedom of expression, of peaceful assembly and of petition for redress of grievances -- over property rights has been sustained. Emphatic reiteration of this basic tenet as a coveted boon -- at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization -- becomes [o]ur duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the

compass of the collective bargaining agreement, is a potent means of inhibiting speech and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition.[25]

Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees (ACAE) vs. Ferrer-Calleja.[26] But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes of the association,[27] the overriding considerations of national security and the preservation of democratic institutions.[28]

As regards the right to strike, the Constitution itself qualifies its exercise with the proviso in accordance with law. This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180[29] which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service, [30] by stating that the Civil Service law and rules governing concerted activities and strikes in the government service shall be observed.[31]

It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to strike. Alliance of Government Workers vs. Minister of Labor and Employment[32]rationalized the proscription thus:

The general rule in the past and up to the present is that the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law. x x x.Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements.[33]

After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) vs. Court of Appeals[34] and explained:

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. But employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, which took effect after the instant dispute arose, [t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government-owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes [thereto].[35]

We now come to the case before us. Petitioners, who are public schoolteachers and thus government employees, do not seek to establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They claim that their gathering was not a strike; therefore, their participation therein did not constitute any offense. MPSTA vs. Laguio[36] and ACT vs. Cario,[37] in which this Court declared that these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers duty to perform, undertaken for essentially economic reasons, should not principally resolve the present case, as the underlying facts are allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. [38] A labor dispute includes any controversy or matter concerning terms and conditions of employment; or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employers and employees. [39] With these premises, we now evaluate the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-holding of classes in several public schools during the corresponding period.Petitioners do not dispute that the grievances for which they sought redress concerned the alleged failure of public authorities -- essentially, their employers -- to fully and justly implement certain laws and measures intended to benefit them materially, such as:

1. Immediate release of P680 million Secondary Education Fund (SEF) fringe benefits of teachers under Section 17 of Republic Act 6758.

2. Clothing allowance at P500 to P1,000 per teachers [sic] under the General Appropriations Act of 1990

3. DMB Circular 904

4. Increase in minimum wage to P5,000 for teachers.[40]

And probably to clothe their action with permissible character, [41] they also raised national issues such as the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan vs. Court of Appeals,[42] however, this Court said that the fact that the conventional term strike was not used by the participants to describe their common course of action was insignificant, since the substance of the situation, and not its appearance, was deemed controlling.[43]

Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time -- recess, after classes, weekends or holidays -- to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one -- not the DECS, the CSC or even this Court -- could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable.

Second Issue: Violation by Petitioner Jacinto of Reasonable Office Rules and Regulations

Petitioner Jacinto, for her part, pleads for exoneration. She asks the Court to reexamine and give due weight to the certification[44] issued by her school principal that she met her class on September 20, 1990 but failed to sign in the attendance logbook. Stated elsewise, Jacinto wants us to scrutinize firsthand a document already ruled upon by the Civil Service Commission and the Court of Appeals to be of doubtful credibility. Time and again, we have held that findings of administrative agencies, which have acquired expertise because their jurisdiction is confined to specific matters, are accorded not only respect but even finality[45] particularly when affirmed by the appellate tribunal. It is not a function of this Court to examine and evaluate the probative value of the evidence proffered in the concerned forum, which formed the basis of the latters impugned decision, resolution or order,[46] absent a clear showing of arbitrariness and want of any rational basis therefor.[47] In the instant case, we find no sufficient reason to reverse the findings of the CSC.

In any event, as observed by the Commission, said certification, dated December 19, 1990, was belatedly submitted by Petitioner Jacinto only with her motion for reconsideration of the CSC resolution promulgated September 21, 1993; thus it was correctly rejected as a newly discovered evidence. Additionally, the Commission explained:

x x x such certification contradicts the allegation that she filed an application for leave. If she was really present on September 20, 1990, there would have been no need for her to file an application for leave.Apparently, this is a vain effort to present documents of doubtful credibility just to have Jacinto exonerated of the charges against her.[48]

The futility of the tactics of Petitioner Jacinto to evade culpability is further exemplified by her contradictory assertions. In a sworn explanation submitted to Secretary Cario, she claimed that she left the school premises on the day in question, because she was emotionally and mentally depressed, and went to see a physician. [49] In her motion for reconsideration before the CSC, she submitted the above certification to the effect that she was not absent. Now, in assailing the Commissions decision to reprimand her for violation of reasonable office rules and regulations in not filing an application for leave of absence, she invokes Sec. 15, Rule XVI of the Civil Service rules, which provides:

Sec. 15. Applications for vacation leave of absence for one full day or more shall be submitted on the prescribed form for action by the proper chief of agency in advance, whenever possible, of the effective date of such leave.

She contends that the filing of an application for vacation leave need not always be in advance of the effective date thereof.[50] Clearly, her present stance is diametric to her illness justification before the DECS. In the latter case, it is Section 16 of said rules that is pertinent:

Sec. 16. All applications for sick leaves of absence for one full day or more shall be on the prescribed form and shall be filed immediately upon the employees return from such leave. Notice of absence, however, should be sent to the immediate supervisor and/or to the office head. x x x

The regulation requires (1) the filing of the application for sick leave on the prescribed form immediately upon the employees return from such leave and (2) a notice of absence to be sent to the immediate supervisor and/or office head. But the Commission found that the records are bereft of any showing that Jacinto asked permission from school authorities to go out of school premises and seek medical attention outside nor did she file an application for sick leave x x x. [51] Hence, its conclusion that petitioner violated reasonable office rules and regulations.

The totality of the evidence on record sustains the findings and conclusions of the Commission, as affirmed by the Court of Appeals. We have no reason to reverse them. The Civil Service rules clearly provide that violation of reasonable office rules and regulations, on first offense, carries the penalty of reprimand.[52]

Third Issue: No Right to Backwages

Petitioners anchor their claim for backwages on the supposed illegality of (1) their preventive suspension upon the filing of the charges against them and (2) the immediate execution of the DECS Secretarys decisions ordering their dismissal.

The charges against petitioners consisted of the following: (1) grave misconduct; (2) gross neglect of duty; (3) gross violation of Civil Service law, rules and regulations and reasonable office regulations; (4) refusal to perform official duty; (5) gross insubordination; (6) conduct prejudicial to the best interest of the service; and (7) absence without approved leave. These were based on their alleged unauthorized participation in the mass actions in September 1990, disregard of report-to-work directives, unjustified abandonment of teaching posts, unauthorized absences without leave, and other similar violations reported to the DECS Secretary by their respective school supervisors.[53]

We find that the charges filed against petitioners warranted their preventive suspension from the service, as provided under Section 51, Chapter 7 (on Discipline) of the Administrative Code, which reads:

Sec. 51. Preventive Suspension. -- The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

The petitioners alleged lapses, initially found substantiated by the DECS, qualify as grave misconduct or neglect in the performance of duty under the above rule. Thus, former Education Secretary Cario had the legal authority to suspend them pending further investigation.

The Secretarys immediate execution of his decisions imposing the penalty of dismissal finds legal basis in Sec. 47 (2) of the Civil Service law[54] which provides:

Sec. 47. Disciplinary Jurisdiction. -- x x x.

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their

decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.

As can be gleaned from the above, the department secretarys decision confirming the removal of an officer or employee under his jurisdiction is executory in character, i.e. such decision may be immediately executed even pending further remedy, such as an appeal,[55] by the dismissed officer or employee. In the case at bar, it was already the final judgments of Secretary Cario which were forthwith carried out. The aforequoted statutory provision rules out the alleged illegality of the actions of the DECS Secretary.

In any event, the rule is settled that backwages may be granted only to those who have been illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the charge against them.[56] Even a pardoned convicted employee is not automatically entitled to backpay. Monsanto vs. Factoran Jr.[57] established the general rule that -- while pardon has been commonly regarded as eliminating the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense -- such exoneration does not operate for all purposes. It does not erase the fact of the commission of the offense and the conviction therefor. It frees the convict from all penalties and legal disabilities and restores to him all his civil rights; but unless expressly grounded on the persons innocence, it does not ipso facto restore him to public office necessarily relinquished or forfeited by reason of the conviction. Pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment; neither is he entitled to backpay.[58]

Thus, in Sabello vs. DECS,[59] although we reinstated the petitioner-pardonee to his previous position in the interest of justice and equity, we did not grant him backwages since he was lawfully separated from the government service upon his conviction for an offense. We reiterated that the right to backwages was afforded only to those who were illegally dismissed but thereafter ordered reinstated, or to those otherwise acquitted of the charge against them.

Again, in City Mayor of Zamboanga vs. Court of Appeals,[60] we said that back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. Hence, in Garcia vs. Chairman, Commission on Audit,[61] we said that if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent as if he had not been found guilty of the offense charged.[62] In that case, Garcia was found administratively liable for dishonesty. He was, however, acquitted by the trial court of the complaint for qualified theft based on the very same acts. The acquittal was founded not on lack of proof beyond reasonable doubt but on the fact that he did not commit the offense imputed to him. This Court said that after having been declared innocent of the criminal complaint, which had the same

basis as the administrative charge, for all legal purposes the petitioner should not be considered to have left his office, so that he was entitled to all the rights and privileges that accrued to him by virtue of the office held, including backwages. He was restored to his office ipso facto upon the issuance of the clemency. The grant of backwages was justified to afford relief to [the] petitioner who [was] innocent from the start and to make reparation for what he [had] suffered as a result of his unjust dismissal from the service.[63]

However, in Balingasan, finding that petitioners therein indeed participated in the unlawful mass actions for which they were similarly meted suspension, the Court opined that they were not completely exonerated of the charges against them. They were denied back salaries because they had given ground for their suspension. This means that being found liable for a lesser offense is not equivalent to exoneration from the original complaint against the concerned public officer or employee. Balingasan referred to the earlier case of Yacia vs. City of Baguio,[64] in which this Court denied the claim of an employee for backwages for the period during which he was not allowed to work because of the execution of the CSC decision dismissing him for dishonesty, even though, on appeal, his penalty was reduced to a fine equivalent to six months pay.

Based on the above premises, petitioners demand for backwages cannot be granted, for they had given cause for their suspension -- their unjustified abandonment of classes to the prejudice of their students. Although they were eventually found guilty only of conduct prejudicial to the best interest of the service, and not grave misconduct or other offense warranting their dismissal from the service, they were not fully innocent of the charges against them.

We find the case of Petitioner Jacinto different, however. The Civil Service Commission found her culpable only of violation of reasonable office rules and regulations, for not having asked permission from school authorities to leave the school premises and seek medical attention and for not filing an application for sick leave for approval by the school authorities. There was no proof that she joined the mass actions which caused prejudice to the school system. In Balingasan, this Court, after finding that Rodolfo Mariano was not involved in the mass actions but was absent because he attended the wake and burial of his grandmother in Ilocos Sur without however the benefit of an approved leave of absence, held that [t]o deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service, i.e. participation in the unlawful mass actions. Therefore, in line with Balingasan, we likewise grant back salaries to Petitioner Jacinto who did not join the illegal activity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is hereby AFFIRMED with the modification that Petitioner Merlinda Jacinto is granted backwages, without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of which, consistent with prevailing jurisprudence,[65] should not exceed five years.

SO ORDERED.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, and Francisco, JJ., concur.

Narvasa, C.J., on official leave.

[1] Rollo, pp. 75-88.

[2] Former Eighth Division, composed of Justices Bernardo Ll. Salas, ponente; Jaime M. Lantin, chairman; and Ma. Alicia Austria-Martinez, member, concurring.

[3] CA Rollo, pp. 54-136.

[4] In CSC Resolution No. 94-2768 dated May 19, 1994; Rollo, pp. 91-92.

[5] In CSC Resolution No. 94-4090 dated September 21, 1993; Rollo, pp. 93-94.

[6] Rollo, p. 90.

[7] Assailed Decision, pp. 4-6; Rollo, pp. 78-80.

[8] 200 SCRA 323, August 6, 1991.

[9] This case was deemed submitted for resolution upon receipt by the Court of Respondents Memorandum, dated March 31, 1997, on April 2, 1997.

[10] Petition, pp. 10-11. (Text in caps in the original.).

[11] Second paragraph of Sec. 2 which states, Only questions of law may be raised in the petition and must be distinctly set forth. x x x.

[12] In Fuentes vs. Court of Appeals, G.R. No. 109849, February 26, 1997, we enumerated such instances as follows:

(1) when the factual findings of the Court of Appeals and the trial court are contradictory;

(2) when the findings are grounded entirely on speculation, surmises, or conjectures;

(3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible;

(4) when there is grave abuse of discretion in the appreciation of facts;

(5) when the appellate court, in making its findings, goes beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee;

(6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;

(7) when the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion;

(8) when the findings of fact are themselves conflicting;

(9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and

(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record.

[13] Sec. 4[, Article III]. 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.

[14] Sec. 8[, Article III]. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

[15] Sec. 2. x x x

(5) The right to self-organization shall not be denied to government employees.

[16] Sec. 3. x x x

[The State] shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. x x x.

[17] 7 Phil. 422, February 7, 1907, per Carson, J., which involved a gathering near the municipal building of about five hundred residents of San Carlos, Occidental Negros, to demand the ouster of certain municipal officials.

[18] Ibid., p. 426.

[19] 80 Phil. 71, January 27, 1948 per Feria, J., where Manila Mayor Fugoso was sought to be compelled to issue a permit for the holding of a rally at the Plaza Miranda intended as a protest against alleged fraud in the elections.

[20] 71 U.S. (Law ed.), 1105-1107.

[21] 125 SCRA 553, November 9, 1983, per Fernando, CJ.

[22] Cabansag vs. Fernandez, 102 Phil. 152, 161, October 18, 1957, per Bautista Angelo, J., explained this rule to mean, as interpreted in a number of cases, x x x that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the substantive evil sought to be prevented. And this evil is primarily the disorderly and unfair administration of justice.

The Court continued, The question in every case, according to Justice Holmes [in Schenck vs. U.S., 249 U.S. 47], is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [C]ongress has a right to prevent. It is a question of proximity and degree.

[23] x x x. 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.

[24] 51 SCRA 189, June 5, 1973, where the petitioner labor union, against the wishes of the management, did not report for work in order to be able to stage a mass demonstration against alleged abuses of local police.

[25] Ibid., p. 205, citing Marsh vs. Alabama, 326 U.S. 501; Tucker vs. Texas, 326 U.S. 517; and Pickering vs. Board of Education, 391 U.S. 563, 574 (1968).

[26] 203 SCRA 596, November 15, 1991, per Gutierrez Jr., J.

[27] Ibid., p. 600. Sec. 8, Art. III, Constitution.

[28] People vs. Ferrer, 48 SCRA 382, December 27, 1972, per Castro J. where the Court, while upholding the validity of the Anti-Subversion Act which outlawed the Communist Party of the Philippines and other subversive organizations, clarified, Whatever interest in freedom of speech and freedom of association is

infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country. It cautioned, though, that the need for prudence and circumspection [cannot be overemphasized] in [the laws] enforcement, operating as it does in the sensitive area of freedom of expression and belief.

[29] Issued by former President Corazon C. Aquino on June 1, 1987.

[30] CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987.

[31] Section 14.

[32] 124 SCRA 1, August 3, 1983, also per Gutierrez Jr., J.

[33] Ibid., p. 13.

[34] 175 SCRA 686, July 28, 1989, per Cortes, J.

[35] Ibid., p. 698.

[36] Supra, per Narvasa, J., now CJ.

[37] Ibid.

[38] Art. 212 (o) of the Labor Code; Lapanday Workers Union vs. National Labor Relations Commission, 248 SCRA 95, September 7, 1995.

[39] Gold City Integrated Port Service, Inc. vs. National Labor Relations Commission, 245 SCRA 627, July 6, 1995.

[40] Petition, p. 14; Rollo, p. 25.

[41] In justifying their mass actions, petitioners liken their activity to the pro-bases rally led by former President Corazon C. Aquino on September 10, 1991, participated in, as well, by public school teachers who consequently absented themselves from their classes. No administrative charges were allegedly instituted against any of the participants. (Petition, p. 15).

[42] G.R. No. 124678, July 31, 1997, per Regalado, J.

[43] Ibid., p. 6, citing Board of Education v. New Jersey Education Association, 53 NJ 29, 247 A2d 867 (1968).

[44] Rollo, p. 99.

[45] Cocofed vs. Trajano, 241 SCRA 363, February 15, 1995; Maya Farms Employees Organization vs. NLRC, 239 SCRA 508, December 28, 1994.

[46] Acebedo Optical Co. vs. Court of Appeals, 250 SCRA 409, November 29, 1995.

[47] Magnolia Corp. vs. NLRC, 250 SCRA 332, November 24, 1995; TUCP vs. Laguesma, 236 SCRA 586, September 21, 1994.

[48] CSC Resolution No. 94-5973, dated November 3, 1994; Rollo, pp. 100-101.

[49] CSC Resolution No. 93-4090, dated September 21, 1993; Rollo, pp. 93-94.

[50] Petition, pp. 27-28; Rollo, pp. 38-39.

[51] CSC Resolution No. 93-4090, supra.

[52] Sec. 23, par. 4 (c) of the Rules implementing the Administrative Code and other pertinent civil service laws.

[53] Petition, p. 32; Rollo, p. 43.

[54] Subtitle A, Title I, Book V of E.O. 292, which took effect on November 23, 1989.

[55] Sec. 47 (2), Ibid., providing that [an] appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

[56] Sabello vs. Department of Education, Culture and Sports, 180 SCRA 623, December 26, 1989; City Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785, February 27, 1990; Bangalisan vs. Court of Appeals, supra.

[57] 170 SCRA 190, February 9, 1989.

[58] Ibid., pp. 198, 200-201.

[59] Supra.

[60] Supra.

[61] 226 SCRA 356, September 14, 1993, per Bellosillo, J.

[62] Ibid., p. 362

[63] Ibid., p. 363.

[64] 33 SCRA 419, May 29, 1990.

[65] Balingasan, supra; Garcia, supra, citing Ginzon vs. Municipality of Murcia, 158 SCRA 1, February 8, 1988, and several other cases.

Syllabi\Synopsis

FIRST DIVISION

[G.R. No. 124382. August 16, 1999]

PASTOR DIONISIO V. AUSTRIA, petitioner, vs. HON. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), CEBU CITY, CENTRAL PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTIST, ELDER HECTOR V. GAYARES, PASTORS REUBEN MORALDE, OSCAR L. ALOLOR, WILLIAM U. DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT, ISACHAR GARSULA, ELISEO DOBLE, PROFIRIO BALACY, DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO, MR. EUFRONIO IBESATE, MRS. TESSIE BALACY, MR. ZOSIMO KARA-AN, and MR. ELEUTERIO LOBITANA, respondents.

D E C I S I O N

KAPUNAN, J.:

Subject to the instant petition for certiorari under Rule 65 of the Rules of Court is the Resolution[1] of public respondent National Labor Relations Commission (the NLRC), rendered

on 23 January 1996, in NLRC Case No. V-0120-93, entitled Pastor Dionisio V. Austria vs. Central Philippine Union Mission Corporation of Seventh Day Adventists, et. al., which dismissed the case for illegal dismissal filed by the petitioner against private respondents for lack of jurisdiction.

Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day Adventists (hereinafter referred to as the SDA) is a religious corporation duly organized and existing under Philippine law and is represented in this case by the other private respondents, officers of the SDA. Petitioner, on the other hand, was a Pastor of the SDA until 31 October 1991, when his services were terminated.

The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for twenty eight (28) years from 1963 to 1991.[2] He began his work with the SDA on 15 July 1963 as a literature evangelist, selling literature of the SDA over the island of Negros. From then on, petitioner worked his way up the ladder and got promoted several times. In January, 1968, petitioner became the Assistant Publishing Director in the West Visayan Mission of the SDA. In July, 1972, he was elevated to the position of Pastor in the West Visayan Mission covering the island of Panay, and the provinces of Romblon and Guimaras. Petitioner held the same position up to 1988. Finally, in 1989, petitioner was promoted as District Pastor of the Negros Mission of the SDA and was assigned at Sagay, Balintawak and Toboso, Negros Occidental, with twelve (12) churches under his jurisdiction. In January, 1991, petitioner was transferred to Bacolod City. He held the position of district pastor until his services were terminated on 31 October 1991.

On various occasions from August up to October, 1991, petitioner received several communications[3] from Mr. Eufronio Ibesate, the treasurer of the Negros Mission asking him to admit accountability and responsibility for the church tithes and offerings collected by his wife, Mrs. Thelma Austria, in his district which amounted to P15,078.10, and to remit the same to the Negros Mission.

In his written explanation dated 11 October 1991,[4] petitioner reasoned out that he should not be made accountable for the unremitted collections since it was private respondents Pastor Gideon Buhat and Mr. Eufronio Ibesate who authorized his wife to collect the tithes and offerings since he was very sick to do the collecting at that time.

Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of Pastor Buhat, the president of the Negros Mission. During said call, petitioner tried to persuade Pastor Buhat to convene the Executive Committee for the purpose of settling the dispute between him and the private respondent, Pastor David Rodrigo. The dispute between Pastor Rodrigo and petitioner arose from an incident in which petitioner assisted his friend, Danny Diamada, to collect from Pastor Rodrigo the unpaid balance for the repair of the latters motor vehicle which he failed to pay to Diamada.[5] Due to the assistance of petitioner in collecting Pastor Rodrigos debt, the latter harbored ill-feelings against petitioner. When news reached petitioner that Pastor Rodrigo was about to file a complaint against him with the Negros Mission, he immediately proceeded to the office of Pastor Buhat on the date abovementioned and asked the latter to convene the Executive Committee. Pastor Buhat denied the request of petitioner since some committee members were out of town and there was no quorum. Thereafter, the two exchanged heated arguments. Petitioner then left the office of Pastor Buhat. While on his way out, petitioner overheard Pastor Buhat saying, Pastor daw inisog na ina iya (Pastor you are talking tough).

[6] Irked by such remark, petitioner returned to the office of Pastor Buhat, and tried to overturn the latters table, though unsuccessfully, since it was heavy. Thereafter, petitioner banged the attache case of Pastor Buhat on the table, scattered the books in his office, and threw the phone.[7] Fortunately, private respondents Pastors Yonilo Leopoldo and Claudio Montao were around and they pacified both Pastor Buhat and petitioner.

On 17 October 1991, petitioner received a letter[8] inviting him and his wife to attend the Executive Committee meeting at the Negros Mission Conference Room on 21 October 1991, at nine in the morning. To be discussed in the meeting were the non-remittance of church collection and the events that transpired on 16 October 1991. A fact-finding committee was created to investigate petitioner. For two (2) days, from October 21 and 22, the fact-finding committee conducted an investigation of petitioner. Sensing that the result of the investigation might be one-sided, petitioner immediately wrote Pastor Rueben Moralde, president of the SDA and chairman of the fact-finding committee, requesting that certain members of the fact-finding committee be excluded in the investigation and resolution of the case. [9]Out of the six (6) members requested to inhibit themselves from the investigation and decision-making, only two (2) were actually excluded, namely: Pastor Buhat and Pastor Rodrigo. Subsequently, on 29 October 1991, petitioner received a letter of dismissal[10] citing misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an offense against the person of employers duly authorized representative, as grounds for the termination of his services.

Reacting against the adverse decision of the SDA, petitioner filed a complaint [11] on 14 November 1991, before the Labor Arbiter for illegal dismissal against the SDA and its officers and prayed for reinstatement with backwages and benefits, moral and exemplary damages and other labor law benefits.

On 15 February 1993, Labor Arbiter Cesar D. Sideo rendered a decision in favor of petitioner, the dispositive portion of which reads thus:

WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and its officers, respondents herein, are hereby ordered to immediately reinstate complainant Pastor Dionisio Austria to his former position as Pastor of Brgy. Taculing, Progreso and Banago, Bacolod City, without loss of seniority and other rights and backwages in the amount of ONE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00) without deductions and qualificatioons.

Respondent CPUMCSDA is further ordered to pay complainant the following:

A. 13th month pay - P21,060.00

B. Allowance - P 4,770.83

C. Service Incentive

Leave Pay - P 3,461.85

D. Moral Damages - P50,000.00

E. ExemplaryDamages - P25,000.00

F. Attorneys Fee - P22,012.27

SO ORDERED.[12]

The SDA, through its officers, appealed the decision of the Labor Arbiter to the National Labor Relations Commission, Fourth Division, Cebu City. In a decision, dated 26 August 1994, the NLRC vacated the findings of the Labor Arbiter. The decretal portion of the NLRC decision states:

WHEREFORE, the Decision appealed from is hereby VACATED and a new one ENTERED dismissing this case for want of merit.

SO ORDERED.[13]

Petitioner filed a motion for reconsideration of the above-named decision. On 18 July 1995, the NLRC issued a Resolution reversing its original decision. The dispositive portion of the resolution reads:

WHEREFORE, premises considered, Our decision dated August 26, 1994 is VACATED and the decision of the Labor Arbiter dated February 15, 1993 is REINSTATED.

SO ORDERED.[14]

In view of the reversal of the original decision of the NLRC, the SDA filed a motion for reconsideration of the above resolution. Notable in the motion for reconsideration filed by private respondents is their invocation, for the first time on appeal, that the Labor Arbiter has no jurisdiction over the complaint filed by petitioner due to the constitutional provision on the separation of church and state since the case allegedly involved and ecclesiastical affair to which the State cannot interfere.

The NLRC, without ruling on the merits of the case, reversed itself once again, sustained the argument posed by private respondents and, accordingly, dismissed the complaint of petitioner. The dispositive portion of the NLRC resolution dated 23 January 1996, subject of the present petition, is as follows:

WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is hereby granted. Accordingly, this case is hereby DISMISSED for lack of jurisdiction.

SO ORDERED.[15]

Hence, the recourse to this Court by petitioner.

After the filing of the petition, the Court ordered the Office of the Solicitor General (the OSG) to file its comment on behalf of public respondent NLRC. Interestingly, the OSG filed a manifestation and motion in lieu of comment[16] setting forth its stand that it cannot sustain the resolution of the NLRC. In its manifestation, the OSG submits that the termination of petitioner of his employment may be questioned before the NLRC as the same is secular in nature, not ecclesiastical. After the submission of memoranda of all the parties, the case was submitted for decision.

The issues to be resolved in this petition are:

1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by petitioner against the SDA;

2) Whether or not the termination of the services of petitioner is an ecclesiastical affair, and, as such, involves the separation of church and state; and

3) Whether or not such termination is valid.

The first two issues shall be resolved jointly, since they are related.

Private respondents contend that by virtue of the doctrine of separation of church and state, the Labor Arbiter and the NLRC have no jurisdiction to entertain the complaint filed by petitioner. Since the matter at bar allegedly involves the discipline of a religious minister, it is to be considered a purely ecclesiastical affair to which the State has no right to interfere.

The contention of private respondents deserves scant consideration. The principle of separation of church and state finds no application in this case.

The rationale of the principle of the separation of church and state is summed up in the familiar saying, Strong fences make good neighbors.[17] The idea advocated by this principle is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions.[18] The demarcation line calls on the entities to render therefore unto Ceasar the things that are Ceasars and unto God the things that are Gods. [19] While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters.[20]

The case at bar does not concern an ecclesiastical or purely religious affair as to bar the State from taking cognizance of the same. An ecclesiastical affair is one that concerns doctrine, creed, or form or worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership.[21] Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with which attached religious significance. The case at bar does not even remotely concern any of the abovecited examples. While the matter at

hand relates to the church and its religious minister it does not ipso facto give the case a religious significance. Simply stated, what is involved here is the relationship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship or doctrines of the church. In this case, petitioner was not excommunicated or expelled from the membership of the SDA but was terminated from employment. Indeed, the matter of terminating an employee, which is purely secular in nature, is different from the ecclesiastical act of expelling a member from the religious congregation.

As pointed out by the OSG in its memorandum, the grounds invoked for petitioners dismissal, namely: misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties and commission of an offense against the person of his employers duly authorize representative, are all based on Article 282 of the Labor Code which enumerates the just causes for termination of employment.[22] By this alone, it is palpable that the reason for petitioners dismissal from the service is not religious in nature. Coupled with this is the act of the SDA in furnishing NLRC with a copy of petitioners letter of termination.  As aptly stated by the OSG, this again is an eloquent admission by private respondents that NLRC has jurisdiction over the case. Aside from these, SDA admitted in a certification[23] issued by its officer, Mr. Ibesate, that petitioner has been its employee for twenty-eight (28) years. SDA even registered petitioner with the Social Security System (SSS) as its employee. As a matter of fact, the workers records of petitioner have been submitted by private respondents as part of their exhibits. From all of these it is clear that when the SDA terminated the services of petitioner, it was merely exercising its management prerogative to fire an employee which it believes to be unfit for the job. As such, the State, through the Labor Arbiter and the NLRC, has the right to take cognizance of the case and to determine whether the SDA, as employer, rightfully exercised its management prerogative to dismiss an employee. This is in consonance with the mandate of the Constitution to afford full protection to labor.

Under the Labor Code, the provision which governs the dismissal of employees, is comprehensive enough to include religious corporations, such as the SDA, in its coverage. Article 278 of the Labor Code on post-employment states that the provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. Obviously, the cited article does not make any exception in favor of a religious corporation. This is made more evident by the fact that the Rules Implementing the Labor Code, particularly, Section 1, Rule 1, Book VI on the Termination of Employment and Retirement, categorically includes religious institutions in the coverage of the law, to wit:

Section 1. Coverage. This Rule shall apply to all establishments and undertakings, whether operated for profit or not, including educational, medical, charitable and religious institutions and organizations, in cases of regular employment with the exception of the Government and its political subdivisions including government-owned or controlled corporations.[24]

With this clear mandate, the SDA cannot hide behind the mantle of protection of the doctrine of separation of church and state to avoid its responsibilities as an employer under the Labor Code.

Finally, as correctly pointed out by petitioner, private respondents are estopped from raising the issue of lack of jurisdiction for the first time on appeal. It is already too late in the day for private respondents to question the jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully participated in the trials and hearings of the case from start to finish. The Court has already ruled that the active participation of a party against whom the action was brought, coupled with his failure to object to the jurisdiction of the court or quasi-judicial body where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later on impugning the court or bodys jurisdiction.[25] Thus, the active participation of private respondents in the proceedings before the Labor Arbiter and the NLRC mooted the question on jurisdiction.

The jurisdictional question now settled, we shall now proceed to determine whether the dismissal of petitioner was valid.

At the outset, we note that as a general rule, findings of fact of administrative bodies like the NLRC are binding upon this Court. A review of such findings is justified, however, in instances when the findings of the NLRC differ from those of the labor arbiter, as in this case. [26] When the findings of NLRC do not agree with those of the Labor Arbiter, this Court must of necessity review the records to determine which findings should be preferred as more comformable to the evidentiary facts.[27]

We turn now to the crux of the matter. In termination cases, the settled rule is that the burden of proving that the termination was for a valid or authorized cause rests on the employer.[28] Thus, private respondents must not merely rely on the weaknesses of petitioners evidence but must stand on the merits of their own defense.

The issue being the legality of petitioners dismissal, the same must be measured against the requisites for a valid dismissal, namely: (a) the employee must be afforded due process, i.e., he must be given an opportunity to be heard and to defend himself, and; (b) the dismissal must be for a valid cause as provided in Article 282 of the Labor Code. [29] Without the concurrence of this twin requirements, the termination would, in the eyes of the law, be illegal.[30]

Before the services of an employee can be validly terminated, Article 277 (b) of the Labor Code and Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require the employer to furnish the employee with two (2) written notices, to wit: (a) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; and, (b) a written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

The first notice, which may be considered as the proper charge, serves to apprise the employee of the particular acts or omissions for which his dismissal is sought. [31] The second notice on the other hand seeks to inform the employee of the employers decision to dismiss him.[32] This decision, however, must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge and ample opportunity to be heard and defend himself with the assistance of a representative, if he so desires. [33] This is in consonance with the express provision of the law on the protection to labor and the broader dictates of procedural due process.[34] Non-compliance therewith is fatal because these requirements are conditions sine quo non before dismissal may be validly effected.[35]

Private respondent failed to substantially comply with the above requirements. With regard to the first notice, the letter,[36] dated 17 October 1991, which notified petitioner and his wife to attend the meeting on 21 October 1991, cannot be construed as the written charge required by law. A perusal of the said letter reveals that it never categorically stated the particular acts or omissions on which petitioners impending termination was grounded. In fact, the letter never even mentioned that petitioner would be subject to investigation. The letter merely mentioned that petitioner and his wife were invited to a meeting wherein what would be discussed were the alleged unremitted church tithes and the events that transpired on 16 October 1991. Thus, petitioner was surprised to find out that the alleged meeting turned out to be an investigation. From the tenor of the letter, it cannot be presumed that petitioner was actually on the verge of dismissal. The alleged grounds for the dismissal of petitioner from the service were only revealed to him when the actual letter of dismissal was finally issued. For this reason, it cannot be said that petitioner was given enough opportunity to properly prepare for his defense. While admittedly, private respondents complied with the second requirement, the notice of termination, this does not cure the initial defect of lack of the proper written charge required by law.

In the letter of termination,[37] dated 29 October 1991, private respondents enumerated the following as grounds for the dismissal of petitioner, namely: misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an offense against the person of employers duly authorized representative. Breach of trust and misappropriation of denominational funds refer to the alleged failure of petitioner to remit to the treasurer of the Negros Mission tithes, collections and offerings amounting to P15,078.10 which were collected by his wife, Mrs. Thelma Austria, in the churches under his jurisdiction. On the other hand, serious misconduct and commission of an offense against the person of the employers duly authorized representative pertain to the 16 October 1991 incident wherein petitioner allegedly committed an act of violence in the office of Pastor Gideon Buhat. The final ground invoked by private respondents is gross and habitual neglect of duties allegedly committed by petitioner.

We cannot sustain the validity of dismissal based on the ground of breach of trust.  Private respondents allege that they have lost their confidence in petitioner for his failure, despite demands, to remit the tithes and offerings amounting to P15,078.10, which were collected in his district. A careful study of the voluminous records of the case reveals that there is simply no basis for the alleged loss of confidence and breach of trust. Settled is the rule that under Article 282 (c) of the Labor Code, the breach of trust must be willful. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.[38] It must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. [39] It should be genuine and not simulated.[40] This ground has never been intended to afford an occasion for abuse, because of its subjective nature. The records show that there were only six (6) instances when petitioner personally collected and received from the church treasurers the tithes, collections, and donations for the church.[41] The stenographic notes on the testimony of Naomi Geniebla, the Negros Mission Church Auditor and a witness for private respondents, show that Pastor Austria was able to remit all his collections to the treasurer of the Negros Mission.[42]

Though private respondents were able to establish that petitioner collected and received tithes and donations several times, they were not able to establish that petitioner failed to remit the same to the Negros Mission, and that he pocketed the amount and used it for his personal purpose. In fact, as admitted by their own witness, Naomi Geniebla, petitioner remitted the amounts which he collected to the Negros Mission for which corresponding receipts were issued to him. Thus, the allegations of private respondents that petitioner breached their trust have no leg to stand on.

In a vain attempt to support their claim of breach of trust, private respondents try to pin on petitioner the alleged non-remittance of the tithes collected by his wife. This argument deserves little consideration. First of all, as proven by convincing and substantial evidence consisting of the testimonies of the witnesses for private respondents who are church treasurers, it was Mrs. Thelma Austria who actually collected the tithes and donations from them, and, who failed to remit the same to the treasurer of the Negros Mission. The testimony of these church treasurers were corroborated and confirmed by Ms. Geniebla and Mr. Ibesate, officers of the SDA. Hence, in the absence of conspiracy and collusion, which private respondents failed to demonstrate, between petitioner and his wife, petitioner cannot be made accountable for the alleged infraction committed by his wife. After all, they still have separate and distinct personalities. For this reason, the Labor Arbiter found it difficult to see the basis for the alleged loss of confidence and breach of trust. The Court does not find any cogent reason, therefore, to digress from the findings of the Labor Arbiter which is fully supported by the evidence on record.

With respect to the grounds of serious misconduct and commission of an offense against the person of the employers duly authorized representative, we find the same unmeritorious and, as such, do not warrant petitioners dismissal from the service.

Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. [43] For misconduct to be considered serious it must be of such grave and aggravated character and not merely trivial or unimportant.[44] Based on this standard, we believe that the act of petitioner in banging the attache case on the table, throwing the telephone and scattering the books in the office of Pastor Buhat, although improper, cannot be considered as grave enough to be considered as serious misconduct. After all, as correctly observed by the Labor Arbiter, though petitioner committed damage to property, he did not physically assault Pastor Buhat or any other pastor present during the incident of 16 October 1991. In fact, the alleged offense committed upon the person of the employers representatives was never really established or proven by private respondents.Hence, there is no basis for the allegation that petitioners act constituted serious misconduct or that the same was an offense against the person of the employers duly authorized representative. As such, the cited actuation of petitioner does not justify the ultimate penalty of dismissal from employment. While the Constitution does not condone wrongdoing by the employee, it nevertheless urges a moderation of the sanctions that may be applied to him in light of the many disadvantages that weigh heavily on him like an albatross on his neck.[45] Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not be visited with a consequence so severe such as dismissal from employment.[46] For the foregoing reasons, we believe that the minor infraction committed by petitioner does not merit the ultimate penalty of dismissal.

The final ground alleged by private respondents in terminating petitioner, gross and habitual neglect of duties, does not requires an exhaustive discussion. Suffice it to say that all private respondents had were allegations but not proof. Aside from merely citing the said ground, private respondents failed to prove culpability on the part of petitioner. In fact, the evidence on record shows otherwise. Petitioners rise from the ranks disclose that he was actually a hard-worker. Private respondents evidence,[47] which consisted of petitioners Workers Reports, revealed how petitioner travelled to different churches to attend to the faithful under his care. Indeed, he labored hard for the SDA, but, in return, he was rewarded with a dismissal from the service for a non-existent cause.

In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was terminated from service without just or lawful cause. Having been illegally dismissed, petitioner is entitled to reinstatement to his former position without loss of seniority right [48] and the payment of full backwages without any deduction corresponding to the period from his illegal dismissal up to actual reinstatement.[49]

WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of public respondent National Labor Relations Commission, rendered on 23 January 1996, is NULLIFIED and SET ASIDE. The Decision of the Labor Arbiter, dated 15 February 1993, is reinstated and hereby AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

[1] Penned by Presiding Commissioner Irenea E. Ceniza and concurred in by Commissioner Amorito V. Caete. Commissioner Bernabe S. Batuhan dissented. Records, Vol. 1, p. 901.

[2] Exhibit B for petitioner, Id., at 467.

[3] Exhibits 5, 6, 7, 8, and 9 for private respondents, Id., at 355 359.

[4] Exhibit M for petitioner, Id., at 252.

[5] Decision of the labor arbiter, Id., at 489, 531.

[6] Id., at 532.

[7] Ibid.

[8] Exhibit H for petitioner, Id., at 247.

[9] Exhibit C for petitioner, Id., at 239.

[10] Exhibit E for petitioner, Id., at 241.

[11] Records, Vol. 1, p. 1.[12] Decision of the Labor Arbiter, Id., at 489, 536.

[13] Decision of the NLRC, Id., at 611, 618.

[14] Resolution of the NLRC, Id., at 789, 796.

[15] Id., at 901, 903.

[16] Rollo, p. 188.

[17] ISAGANI A. CRUZ, PHILIPPINE POLITICAL LAW (1998), p. 68.

[18] Ibid.

[19] Id.

[20] Id.

[21] BLACKS LAW DICTIONARY, Fifth Edition (1979), p. 460.

[22] Rollo, p. 233.

[23] Exhibit B for petitioner, Records, Vol. 1, p. 238.

[24] Emphasis supplied.

[25] Maneja vs. NLRC and Manila Midtown Hotel, G.R. No. 124013, June 5, 1998, citing Marquez vs. Secretary of Labor, 171 SCRA 337 (1989).

[26] Lim, et al. vs. NLRC, et al., G.R. No. 124630, February 19, 1999.

[27] Arboleda vs. NLRC and Manila Electric Company, G.R. No. 119509, February 11, 1999, citing Tanala vs. NLRC, 252 SCRA 314 (1996).

[28] Id., citing Gesulgon vs. NLRC, 219 SCRA 561 (1993).

[29] Id., citing Pizza Hut/Progressive Devt. Corp. vs. NLRC, 252 SCRA 531 (1996).

[30] Salaw vs. NLRC, 202 SCRA 7, 12 (1991) citing San Miguel Corporation vs. NLRC, 173 SCRA 314 (1989).

[31] Tiu v. NLRC, 215 SCRA 540, 551 (1992).

[32] Ibid.

[33] Id.

[34] Id., at 552.

[35] Id., citing Metro Port Service, Inc. v. NLRC, 171 SCRA 190 (1989).

[36] Exhibit H for petitioner, Records, Vol. 1, p. 247.

[37] Exhibit E for petitioner, Id., at 241.

[38] Atlas Consolidated Mining & Devt. Corp. vs. NLRC and Isabelo O. Villacencio, G.R. No. 122033, May 21, 1998.

[39] Ibid.

[40] Id.

[41] Exhibits 47, 49, 50, 51, 52, and 53 for private respondents, Records, Vol. 1, pp. 398, 400 403.

[42] TSN, June 22, 1992, pp. 198-199; August 18, 1992, pp. 189-191, 198-201.

[43] Alma Cosep, et al. vs. NLRC and Premiere Development Bank, G.R. No. 124966, June 16, 1998.

[44] Ibid.

[45] Gandara Mill Supply and Milagros Sy vs. NLRC and Silvestre Germano, G.R. No. 126703, December 29, 1998 citing Diosdado de Vera vs. NLRC, 191 SCRA 633 (1990).

[46] PLDT vs. NLRC and Enrique Gabriel, G.R. No. 106947, February 11, 1999, citing Madlos vs. NLRC, 254 SCRA 248 (1996).

[47] Exhibits 44 46 for private respondents, Records, Vol. 1, pp. 395 397.

[48] Salaw vs. NLRC, supra note 30 citing Santos vs. NLRC, 154 SCRA 166 (1987).

[49] Joaquin Servidad vs. NLRC, 265 SCRA 61, 71 (1996).

THIRD DIVISION

[G.R. No. 144801. March 10, 2005]

DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY CANTA, CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO DIZON, SALVADOR GELSANO and BENITO LAUGO, petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN BORDAS, respondents.

D E C I S I O N

CORONA, J.:

This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of Surigao City, Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.

The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the records that the family of Fr. Floranos wife belonged to a political party opposed to petitioner Tarucs, thus the animosity between the two factions with Fr. Florano being identified with his wifes political camp. Bishop de la Cruz, however, found this too flimsy a reason for transferring Fr. Florano to another parish.

Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade him from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised petitioners to air their complaints before the higher authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws and canons of the PIC.

Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant.

On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine Independent Church for reasons of:

(1) disobedience to duly constituted authority in the Church;

(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia Filipina Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the Plaza on June 19, 1996; and

(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general membership.[1]

Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his letter to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down voluntarily to avert the hostility and enmity among the members of the PIC parish in Socorro but stated that:

I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish.[2]

In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by Bishop Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for transferring Fr. Florano to another parish. He issued a circular denying petitioners persistent clamor for the transfer/re-assignment of Fr. Florano. Petitioners were informed of such denial but they continued to celebrate mass and hold other religious activities through Fr. Ambong who had been restrained from performing any priestly functions in the PIC parish of Socorro, Surigao del Norte.

Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop to have petitioners expelled and excommunicated from the PIC. They contended that their expulsion was illegal because it was done without trial thus violating their right to due process of law.

Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction but it was denied. Their motion for reconsideration was likewise denied so they elevated the case to the Court of Appeals.

The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of the case without prejudice to its being refiled before the proper forum. It held:

We find it unnecessary to deal on the validity of the excommunication/expulsion of the private respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers to be outside the province of the civil courts.

Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of civil or property rights. Those rights may be the subject of litigation in a civil court, and the courts have jurisdiction to determine controverted claims to the title, use, or possession of church property. (Ibid., p.466)

Obviously, there was no violation of a civil right in the present case.

Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or protection of a civil or property rights in order for the court a quo to acquire jurisdiction in the instant case.[3]

Petitioners appealed from the above decision but their petition was denied. Their motion for reconsideration was likewise denied, hence, this appeal.

The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case involving the expulsion/excommunication of members of a religious institution.

We rule that the courts do not.

Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:

Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. Give to Ceasar what is Ceasars and to God what is Gods. We have, however, observed as early as 1928 that:

upon the examination of the decisions it will be readily apparent that cases involving questions relative to ecclesiastical rights have always received the profoundest attention from the courts, not only because of their inherent interest, but because of the far reaching effects of the decisions in human society. [However,] courts have learned the lesson of conservatism in dealing with such matters, it having been found that, in a form of government where the complete separation of civil and ecclesiastical authority is insisted upon, the civil courts must not allow themselves to intrude unduly in matters of an ecclesiastical nature.[4] (italics ours)

We agree with the Court of Appeals that the expulsion/excommunication of members of a religious institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church regulations. In the words of Justice Samuel F. Miller[5]:

all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the Church government and they are bound to submit to it.

In the leading case of Fonacier v. Court of Appeals,[6] we enunciated the doctrine that in disputes involving religious institutions or organizations, there is one area which the Court should not touch: doctrinal and disciplinary differences.[7] Thus,

The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts. (emphasis ours)

We would, however, like to comment on petitioners claim that they were not heard before they were expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times not to commit acts inimical to the best interests of PIC. They were also warned of the consequences of their actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the chaos and dissension they caused.

WHEREFORE, the petition is herby DENIED for lack of merit.

Costs against petitioners.

SO ORDERED.

Panganiban, (Chairman), and Sandoval-Gutierrez, JJ., concur.Carpio-Morales, J., on leave.Garcia, J., no part.

[1] Rollo, p. 73.

[2] Rollo, p. 129.

[3] Penned by Associate Justice Bennie A. Adefuin-de la Cruz and concurred in by Associate Justices Cancio C. Garcia (now Associate Justice of the Supreme Court) and Renato C. Dacudao, Rollo, p. 82.

[4] Gonzales v. R. Archbishop, 51 Phil. 420, 434 (1928).

[5] In Watson v. Jones, 13 Wall. 679, 723; 20 Law ed., 666, quoted in Gonzales v. R. Archbishop, supra.

[6] 96 Phil. 417 (1955).

[7] Bernas, J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p. 322.

EN BANC 

RE: REQUEST OF MUSLIM A.M. No. 02-2-10-SCEMPLOYEES IN THE

DIFFERENT COURTS IN Present:ILIGAN CITY (RE: OFFICEHOURS) DAVIDE, JR., C.J.,PUNO,PANGANIBAN,

QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,AUSTRIA-MARTINEZ,

CORONA,CARPIO MORALES,CALLEJO, SR.,

AZCUNA,TINGA,CHICO-NAZARIO, andGARCIA, JJ. Promulgated: 

December 14, 2005 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x  

R E S O L U T I O N  CALLEJO, SR., J.:

 

In their Letter dated November 19, 2001 addressed to Executive Judge

Valerio M. Salazar, Regional Trial Court of Iligan City, several Muslim employees

in the different courts in the said city request that they be allowed to enjoy the

following privileges:

 

1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee breaks during the month of Ramadan;

 

2. 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.

 

Judge Salazar forwarded the said letter-request to the Office of the Court 

Administrator   (OCA).   Judge   Salazar   expressed   his   conformity   with   the   first 

request, i.e., allowing them to hold office from 7:30 a.m. to 3:30 p.m. without any 

break during the month of Ramadan.  However,  he expressed some misgivings 

about the second request, i.e., excusing them from work from 10:00 a.m. to 2:00 

p.m. every Friday during the entire calendar year.

 

In   support  of   their   requests,   the  Muslim employees   invoke  Presidential 

Decree (P.D.) No. 291[1] as amended by P.D. No. 322[2] enacted by then President 

Ferdinand  E.  Marcos.   The  avowed  purpose  of   P.D.  No.   291  was   to   reinforce 

national   unity   by   recognizing  Muslim  holidays   and  making   them  part   of   our 

national holidays. Section 2 thereof, as amended by P.D. No. 322, provides that 

the following are recognized Muslim holidays:

 

a. Eid-ul-Fitr (Hariraya Puasa) - which falls on the 1st day of the lunar month of Shawwal commemorating the end of the fasting season;

b. Eid-ul-Adha (Hariraya Haj) - which falls on the 10th day of the 12th Lunar month of Zul Hajj;

c.  Mauledan  Nabi   -   Birthday   of   Prophet  Mohammad   (P.B.U.H),  which   falls   on   the 12th day of the 3rd Lunar month of Rabbiol-Awwal;

d. Lailatul Isra Wal Miraj - (Ascension) which falls on the 27th day of the 8th Lunar month of Rajjab;

e. Muharram (Ashura) - which falls on the 10th Lunar month of Muharram; and

f.   Amon   Jaded   (New   Year)   -   which   falls   on   the   1st day   of   the   1st Lunar  month   of Muharram.

 

 

Muslims employees in the government are excused from reporting to office 

during these holidays in order that they may be able to properly observe them.

 

Section 3 of the same law, as amended by P.D. No. 322, further provides 

that:

 

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.

 

(b) Regulations for the implementation of this section shall be issued together with the implementing directives on Muslim holidays.

 

Pursuant thereto, the Civil Service Commission (CSC) promulgated Resolution No. 

81-1277 dated November 13, 1981 which states in part:

 

2. During Ramadan the Fasting month (30 days) of the Muslims, the Civil Service official time of 8 oclock to 12 oclock and 1 oclock to 5 oclock is hereby modified to 7:30 A.M. to 3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime;

 

3. During Friday, the Muslim pray day, Muslims are excused from work from 10 oclock in the morning to 2 oclock in the afternoon.

 

Moreover, in its Resolution No. 00-0227 dated January 26, 2000, the CSC 

clarified that the term Friday in the above resolution is not limited to the Fridays 

during the month of Ramadan, but refers to all Fridays of the 

calendar year. However, in order not to run afoul of Section 5,[3] Rule XVII of 

the   Omnibus   Rules   Implementing   Book   V   of   Executive   Order   (E.O.)   No. 

292[4] which  enjoins   civil   servants   to   render  public   service  not   less   than  eight 

hours a day or  forty (40) hours a week,  the CSC prescribes the adoption of  a 

flexible working schedule to accommodate the Muslims Friday Prayer Day subject 

to certain conditions, e.g., the flexible working hours shall not start earlier than 

7:00 a.m. and end not later than 7:00 p.m.[5]

In the Resolution dated October 1, 2002, the Court required the Court

Administrator to study the matter. In compliance therewith, Court Administrator

Presbitero J. Velasco, Jr. recommends that the Muslim employees in the Judiciary

be allowed to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without break

during the month ofRamadan. Further, that they be excused from work from 10:00

a.m. to 2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day.

However, to compensate for the lost hours, they should be required to observe

flexible working schedule which should start from 7:00 a.m. to 10:00 a.m. and

from 2:00 p.m. to 7:00 p.m. every Friday. In that way, the working hours mandated

by the civil service rules is complied with. 

The recommendation of the Court Administrator with respect to the matter 

of allowing the Muslim employees in the Judiciary to hold flexible office hours 

from 7:30 a.m. to 3:30 p.m. without break during the month of Ramadan is well 

taken. The same has statutory basis in Section 3 (a) of P.D. No. 291, as amended 

by P.D. No. 322, which categorically states that [d]uring the fasting season in 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 ...

 

The Court, however, is constrained to deny for lack of statutory basis the 

request of the Muslim employees to be excused from work from 10:00 a.m. to 

2:00 p.m. every Friday to allow them to attend the Muslim Prayer Day.  As 

correctly observed by Atty. Edna Dio, Chief, Office of the Court Attorney, in her 

Report   dated  May   13,   2005,   the   CSC   exceeded   its   authority   insofar   as   it 

declared in Resolution No. 81-1277 and Resolution No. 00-0227 that Muslim 

employees are excused from work from 10:00 a.m. to 2:00 p.m. 

every Friday subject to certain conditions. CSC Resolution No. 81-1277 was 

purportedly issued pursuant to Sections 2 and 5 of P.D. No. 291, as amended by 

P.D. No 322, but neither of the two decrees mention Friday, the Muslim Prayer 

Day as one of the recognized holidays. 

The  Court   is   not  unmindful   that   the   subject   requests  are   grounded  on 

Section 5, Article III of the Constitution:

 

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.

 

 

This provision contains two aspects: (1) the non-establishment clause; and 

(2) the free exercise clause. The subject requests are based on the latter and in 

interpreting this clause (the free exercise clause) embodied in the Constitution, 

the Court has consistently adhered to the doctrine that:

 

The right to religious profession and worship has a two-fold aspect, viz.,   freedom to believe and freedom to act on ones 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.[6]

 

 

Justice Isagani A. Cruz explained these two 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 Ones 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.[7]

 

The  Court   recognizes   that   the  observance  of Ramadan and   the  Friday  Muslim 

Prayer   Day   is   integral   to   the   Islamic   faith.   However,   while   the   observance 

of Ramadan and allowing the Muslim employees in the Judiciary to hold flexible 

office hours from 7:30 a.m. to 3:30 p.m. without any break during the month 

of Ramadan finds support in Section 3 (a) of P.D. No. 291, as amended by P.D. No. 

322, there is no such basis to excuse them from work from 10:00 a.m. to 2:00 

p.m. every Friday, the Muslim Prayer Day, during the entire calendar year.

 

On the other hand, the need of the State to prescribe government office hours as 

well  as to enforce them uniformly to all  civil  servants,  Christians and Muslims 

alike,  cannot be disregarded.  Underlying Section 5,[8] Rule XVII  of  the Omnibus 

Rules Implementing Book V of E.O. No. 292 is the interest of the general public to 

be assured of continuous government service during office hours every Monday 

through   Friday.   The   said   rule   enjoins   all   civil   servants,   of  whatever   religious 

denomination, to render public service of no less than eight hours a day or forty 

(40) hours a week.

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.

 

In fine, the remedy of the Muslim employees, with respect to their request 

to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during the 

entire calendar year, is legislative, which is to ask Congress to enact a legislation 

expressly   exempting   them   from   compliance  with   the   prescribed   government 

working hours.

ACCORDINGLY, the Court resolved to:

 

1. GRANT the request to allow the Muslim employees in the Judiciary to 

hold office hours from 7:30 a.m. to 3:30 p.m. without break during the month 

of Ramadanpursuant   to   Section   3   (a)   of   Presidential   Decree   No.   291,   as 

amended by Presidential Decree No. 322; and

2.     DENY for lack of legal basis the request that the Muslim employees 

in  the Judiciary  be excused from work from 10:00 a.m. to 2:00 p.m. every 

Friday, the Muslim Prayer Day, during the entire calendar year.

SO ORDERED.

 

 

ROMEO J. CALLEJO, SR.

Associate Justice

 

 

 

WE CONCUR:

 

 

 

HILARIO G. DAVIDE, JR.

Chief Justice

 

 

 

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice

 

 

 

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

 

 

 

 

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

 

 

 

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

 

 

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

 

 

 

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

 

 

 

CANCIO C. GARCIAAssociate Justice

[1] Recognizing Muslim Holidays and Providing for the Implementation, September 12, 1973.[2] Amending Section 2 of Presidential Decree No. 291 and Inserting a New Section on the Regulation of Office Hours in the Month of Ramadan thereby Changing the Numbers of All Subsequent Sections, October 28, 1973.[3] The provision reads:

Sec. 5. Officers and employees of all departments and agencies except those covered by special laws shall render not less than eight hours of work a day for five days a week or a total of forty hours a week, exclusive of time for lunch. As a general rule, such hours shall be from eight oclock in the morning to twelve oclock noon and from one oclock to five oclock in the afternoon on all days except Saturdays, Sundays and Holidays.

[4] Administrative Code of 1987.[5] Civil Service Commission Resolution No. 00-0227, supra. These conditions are:

1) Heads of departments, offices and agencies shall have the authority to approve office working hours, provided that in such working hours, officials and employees shall render not less than eight hours a day for five days a week for a total of forty hours;

2) The flexible working hours shall not start earlier than 7:00 oclock in the morning and end later that 7:00 oclock in the evening; hence, the public is still assured of the core working hours of eight oclock in the morning to five oclock in the afternoon;

3) The public must be assured of a continuous service during the period of 12:00 noon to 1:00 oclock in the afternoon;

4) The Flexible Working Hours adopted by the official or employee shall thereafter be his regular working hours which cannot be occasionally or periodically changed at his convenience;

5)  In the exigency of the service,  working days may also be altered to  include Saturdays and Sundays, provided  that  employees  who work  on such  days  may choose  compensatory  days-off during   the weekdays, provided that the Saturday and Sunday are regular workdays and not cases of overtime;

Such working day may be applicable to offices with frontline services such as Consular offices abroad, Bureau of Internal Revenue, Bureau of Customs, Social Security System, Government Service Insurance System, and other offices that issue licenses, permits, clearances, or which process documents needed to have access to other services.

6) A report of flexible working hours adopted by the department, office or agency shall be submitted to the Civil Service Commission within thirty (30) days of its implementation;

7) Habitual absenteeism and tardiness shall hereafter be considered as grave offenses.

[6] ISAGANI A. CRUZ, CONSTITUTIONAL LAW 174 (1995), citing Cantwell v. Connecticut, 310 U.S. 296 (1940). Also cited in Iglesia Ni Cristo v. Court of Appeals, 259 SCRA 529 (1996); Ebralinag v. Division Superintendent of Schools of Cebu, supra.[7] Id. at 174-175.[8] Supra.

SECOND DIVISION

[G.R. No. 138962. October 4, 2002]

PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners, vs. HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City, People of the Philippines and I.C. Construction, Inc., respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul the following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999, rendered by the Court of Appeals in CA-G.R. SP No. 46845; [1] (2) Decision dated September 10, 1997 and the Order dated January 28, 1998 issued by the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases Nos. Q-97-70428 and Q-97-70429;[2] and (3) Decision dated December 16, 1996 of the Metropolitan Trial Court of Quezon City (Branch 38) in Criminal Cases Nos. 38-0130 and 38-0131.[3]

The facts are as follows:

Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential Decree No. 772 or the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz, appealed to the RTC of Quezon City (Branch 96). Their conviction was affirmed in toto by the RTC in its decision dated September 10, 1997. Pending resolution of their motion for reconsideration, however, Republic Act No. 8368, An Act Repealing Presidential Decree No. 772, entitled Penalizing Squatting and Other Similar Acts was enacted.

In its Order, dated January 28, 1998, the RTC ruled that only petitioners criminal convictions were extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners illegally constructed house and improvements, shall remain executory against them.[4]

On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due course to the petition per its Decision, dated April 30, 1999. [5] Petitioners motion for reconsideration was likewise denied by the CA in its Resolution dated June 9, 1999.[6]

Hence, the present recourse taken by petitioners, raising the following issues:

1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express repeal of said decree absolves the petitioners of any criminal or civil liability;

2. That public respondent erred in holding that the civil aspect of the judgment rendered x x x shall be executory against the accused; and

3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of Quezon City (Branch 96), dated June 9, 1999, grossly erred in ignoring applicable laws and jurisprudence.[7]

Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of both the criminal and civil aspects of the crime. Private respondent, however, insists that public respondents were correct in ruling that only the criminal liability was absolved and the civil liability remains inasmuch as it was not extinguished in accordance with Article 113 of the Revised Penal Code, which reads:

ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as provided in the next preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason.

In its Motion to Deny Due Course, private respondent also argues that the petition should now be denied as its title to the land subject of this case has already been adjudged in its favor. [8]

In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees with petitioners that both the criminal and civil liability were rendered extinct with the repeal of P.D. 772, and recommended that the assailed issuances be reversed and set aside.

We find the petition to be meritorious.

Republic Act No. 8368, otherwise known as the Anti-Squatting Law Repeal Act of 1997, provides:

SECTION 1. Title. -- This Act shall be known as the Anti-Squatting Law Repeal Act of 1997.

SEC. 2. Repeal. -- Presidential Decree No. 772, entitled Penalizing Squatting and Other Similar Acts is hereby repealed.

SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.

SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify, eliminate or diminish in any way Section 27 of Republic Act No. 7279 or any of its provisions relative to sanctions against professional squatters and squatting syndicates.

SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2) newspapers of national circulation.

Approved, October 27, 1997.[9]

The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and absolute. As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal under R.A. 8368, and the previous offense is obliterated. [10]

In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its authority to punish a person charged with violation of the old law prior to its repeal. This is because an unqualified repeal of a penal law constitutes a legislative act of rendering legal what had been previously declared as illegal, such that the offense no longer exists and it is as if the person who committed it never did so. [11] Specially so, as in the present case where it is unconditionally stated in Section 3 of R.A. No. 8368 that: (A)ll pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.[12] Obviously, it was the clear intent of the law to decriminalize or do away with the crime of squatting. Hence, there being no criminal liability, there is likewise no civil liability because the latter is rooted in the former. Where an act or omission is not a crime, no person can be held liable for such act or omission. There being no delict, logically, civil liability ex delicto is out of the question. [13]

In fact, in People v. Leachon, Jr. [14]  we implicitly recognized the unconditional repeal of P.D. 772 by R.A. 8368 when we ordered the dismissal of the petition filed in said case, without any qualification whatsoever, because of the enactment of R.A. 8368, viz.:

But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now prosper because on October 27, 1997, Republic Act No. 8368, entitled An Act Repealing Presidential Decree No. 772 Entitled Penalizing Squatting and Other Similar Acts was enacted. Section 3 of the said Act provides that all pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act.[15]

This is not to say, however, that people now have the unbridled license to illegally occupy lands they do not own. R.A. No. 8368[16] was unanimously approved by the members of the Senate of the Philippines present on its third reading. [17] The legislature considered it a major piece of legislation on the countrys anti-poverty program [18] as it sought to confront the perennial problem of poverty at its root, abolish an otherwise inutile and oppressive law, and pave the way for a genuine urban housing and land reform program. Senate records reveal that it is the manifest intent of the authors of R.A. 8368 to decriminalize squatting but does not encourage or protect acts of squatting on somebody elses land.[19] The law is not intended to compromise the property rights of legitimate landowners.[20] Recourse may be had in cases of violation of their property rights, such as those provided for in Republic Act No. 7279 or the Urban Development and Housing Act, penalizing professional squatters and squatting syndicates as defined therein, who commit nefarious and illegal activities [21]; the Revised Penal Code providing

for criminal prosecution in cases of Trespass to Property, [22] Occupation of Real Property or Usurpation of Real Rights in Property, [23] and similar violations, and, cases for Forcible Entry and Unlawful Detainer under the Rules of Court, [24] as well as civil liability for Damages under the Civil Code.

Considering that prosecution for criminal as well as civil liability under P.D. 772 has been rendered nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal Cases Nos. Q-97-70428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130 and 38-0131 in the MTC filed against petitioners should be dismissed.

WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30, 1999 of the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new judgment is hereby entered modifying the Decision dated September 10, 1997 of the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases No. Q-97-70428 and Q-97-70429 and the Decision dated December 16, 1996 issued by the Metropolitan Trial Court of Quezon City (Branch 38), to the effect that the dismissal of the aforementioned criminal cases likewise include the dismissal of the civil aspects thereof, without prejudice to the filing of civil and/or criminal actions under the prevailing laws.

No costs.

SO ORDERED.

Bellosillo, Acting C.J., (Chairman), Quisumbing, and Callejo, Sr., JJ., concur.Mendoza, J., on official leave.

[1] Entitled, Prescilla Tuates and Andres de la Paz, Petitioners vs. Hon. Lucas P. Bersamin, as Presiding Judge, Regional Trial Court, Branch 96, Quezon City, People of the Philippines and I.C. Cruz Construction, Inc.,Respondents.

 

[2] Entitled, People of the Philippines, Plaintiff, versus, Prescilla Tuates, Accused; and People of the Philippines, Plaintiff, versus, Andres de la Paz, Accused.

 

[3] Ibid.

 

[4] Rollo, p. 23, Annex A.

 

[5] Id., p. 25, Annex B.

 

[6] Id., p. 34, Annex D.

 

[7] Id., p. 15.

 

[8] Id., p. 71.

 

[9] Vital Legal Documents (Second Series), Book 7, p. 197.

 

[10] People   v.   Pimentel , 288 SCRA 542, 555-556 [1998].

 

[11] Benedicto   v.   Court of Appeals, G.R. No. 125359 , September 4, 2001.

 

[12] Section 3.

 

[13] Manantan   v.   Court of Appeals , 350 SCRA 387, 397 [2001].

 

[14] 296 SCRA 163 [1998].

 

[15] Id., p. 170.

 

[16] Entitled An Act to Decriminalize Squatting and Other Similar Acts, Thereby Repealing Presidential Decree No. 772, Entitled Penalizing Squatting and Other Similar Acts.

 

[17] Records of the Senate, Third Regular Session [October 1 to November 26, 1997]; Vol. II, Nos. 18-38, p. 20.

 

[18] Ibid.

 

[19] Records of the Senate, Third Regular Session [July 28 to September 30, 1997]; Vol. 1, Nos. 1-18, p. 1005.

 

[20] Id., p. 469; 470.

 

[21] R.A. 7279, Section 27.

 

[22] Revised Penal Code, Article 281.

 

[23] Id., Article 312.

 

[24] 1997 Rules of Civil Procedure, as amended, Rule 70.

THIRD DIVISION

[G.R. No. 141529. June 6, 2001]

FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

GONZAGA-REYES, J.:

The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court of Pasig City[1] and was sentenced to four years and two months of prision correccional, as minimum, to eight years of prision mayor as maximum, in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years.[2]He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17, 1999.

After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused-Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant. [3] Petitioner filed a Reply, contending that the proposed bail of P5,500,000.00 was violative of his right against excessive bail.

The assailed resolution of the Court of Appeals[4], issued on October 6, 1999, upheld the recommendation of the Solicitor General; thus, its dispositive portion reads:

WHEREFORE, premises considered, the Motion to Fix Bail For Provisional Liberty of Accused-Appellant Pending Appeal is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the

amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz.:

(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court;

(2) The Commission of Immigration and Deportation (CID) is hereby directed to issue a hold departure order against accused-appellant; and

(3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for safekeeping until the court orders its return;

(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellants bail bond, the dismissal of appeal and his immediate arrest and confinement in jail.

SO ORDERED.[5]

A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition.

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of discretion in fixing the bail for the provisional liberty of petitioner pending appeal in the amount of P5.5 million.

The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional liberty of the petitioner on his civil liability.

The respondent Court of Appeals unduly restricted petitioners constitutional liberty of abode and travel in imposing the other conditions for the grant of bail.

Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during the trial of the case.[6]

On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00

not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been established that petitioner was in possession of a valid passport and visa and had in fact left the country several times during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his business transactions and had several abodes in different parts of the country.

As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals requires is notice in case of change of address; it does not in any way impair petitioners right to change abode for as long as the court is apprised of his change of residence during the pendency of the appeal.

Petitioners case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states:

SEC. 5. Bail, when discretionary. --- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.[7]

There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for humanitarian reasons, and despite a perceived high risk of flight, as by petitioners admission he went out of the country several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00.

The prohibition against requiring excessive bail is enshrined in the Constitution. [8] The obvious rationale, as declared in the leading case of De la Camara vs. Enage,[9] is that imposing bail in an excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abao,[10] this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions.

xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a paupers will. xxx[11]

At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements. [12] In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him.

Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioners right to bail.

The purpose for bail is to guarantee the appearance of the accused at the trial, [13] or whenever so required by the court[14] The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose. [15] To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00) is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court.

At the same time, we cannot yield to petitioners submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, merits attention, being in a sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws.[16] Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice.[17] This notwithstanding, the Court is not precluded from imposing in petitioners case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances.

It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal in non-capital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.[18] In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court.[19] In an earlier case, the Court adopted Senator Vicente J. Franciscos disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus:

The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction. xxx [20]

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --- the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable.

Petitioner also contests the condition imposed by the Court of Appeals that he secure a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court, claiming that the same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order.[21] In fact, the petition submits that the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary.[22]

The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision.[23] The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioners bail pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

[1] Branch 167, presided by Judge Alfredo C. Flores.

[2] RTC Decision; Rollo, 33-34.

[3] Comment of Solicitor General to Motion to Fix Bail; Rollo, 59.

[4] Fourteenth Division, composed of Associate Justice Ramon A. Barcelona (Chairman and ponente), Associate Justice Demetrio G. Demetria, and Associate Justice Mercedes Gozo-Dadole.

[5] CA Resolution dated October 6, 1999; Rollo, 18-19.

[6] Petition; Rollo, 8.

[7] See also Section 5, Rule 114 of the Revised Rules of Criminal Procedure, effective December 1, 2000.

[8] At Section 13, Article III (Bill of Rights), the 1987 Constitution declares: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Emphasis supplied)

[9] 41 SCRA 1 (1971).

[10] 21 SCRA 312 (1967). See also Chu vs. Dolalas, 260 SCRA 309 (1996).

[11] Dela Camara vs. Enage, supra, at 9, 10.

[12] Almeda vs. Villaluz, 66 SCRA 38 (1975).

[13] Almeda vs. Villaluz, supra.

[14] Sec. 2, Rule 114, Revised Rules of Criminal Procedure.

[15] Villaseor vs. Abao, 21 SCRA 312 (1967).

[16] People vs. Resterio-Andrade, 175 SCRA 782 (1989).

[17] Chu vs. Dolalas, supra.

[18] Maguddatu vs. Court of Appeals, 326 SCRA 362 (2000); Obosa vs. Court of Appeals, 266 SCRA 281 (1997), citing People vs. Caderao and Associated Insurance & Surety Co., Inc., 117 Phil. 650 (1963).

[19] Obosa vs. Court of Appeals, supra.

[20] Id., citing FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES --- CRIMINAL PROCEDURE (1963), at 322.

[21] See Defensor-Santiago vs. Vasquez, 217 SCRA 633 (1993), where the Court held that the ex parte issuance of a hold-departure order was a valid exercise of the presiding courts inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused. See also Silverio vs. Court of Appeals,

195 SCRA 760 (1991), where the Court upheld the hold-departure order as a valid restriction on the accuseds right to travel, as to keep him within the reach of the courts.

[22] Petition; Rollo, 11

[23] Manotoc vs. Court of Appeals, 142 SCRA 149 (1986).

G.R. No. L-53622 April 25, 1980

JOVITO R. SALONGA, petitioner, vs.CAPTAIN ROLANDO HERMOSO, TRAVEL PROCESSING CENTER, and GENERAL FABIAN VER, respondents.

 

FERNANDO, C.J.:

This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus proceeding to compel the issuance to him of a certificate of eligibility to travel. In the first case, Salonga v. Madella, 1 the case became moot and academic as the Office of the Solicitor General, in its answer to the petition, stated that the travel eligibility certificate was not denied and, as a matter of fact, had been granted. Nonetheless, a brief separate opinion was filed, concurring in the resolution, and worded thus: "Clearly this petition had assumed a moot and academic character. Its dismissal is thus indicated. May I just add these few words as my response to the plea of petitioner in his Manifestation and Reply dated October 28, 1978. This is how I would view the matter not only where petitioner is concerned but in all other similar cases. Respondent Travel Processing Center should discharge its injunction conformably to the mandate of the Universal Declaration of Human Rights on the right to travel. One of the highlights of the keynote address of President Marcos in the Manila World Law Conference in celebration of the World Peace Through Law Day on August 21, 1977 was the lifting of 'the ban on international travel.' There should be fidelity to such a pronouncement. It is the experience of the undersigned in his lectures abroad the last few years, in the United States as well as in Malaysia, Singapore and Australia, that respect accorded constitutional rights under the present emergency regime had elicited the commendation of members of the bench, the bar, and the academe in foreign lands. It is likewise worthy of notice that in his keynote address to the International Law Association, President Marcos made reference to martial law being instituted in accordance with law and that the Constitution had been applied in appropriate cases. As an agency of the executive branch, therefore, the Travel Processing Center should ever be on its guard, lest the impression be created that such declarations amount, to paraphrase Justice Jackson, to no more than munificent bequests in a pauper's will. Petitioner, to my mind, is justified, the more so in the light of the Answer of Acting Solicitor General Vicente Mendoza, to an affirmative response to his prayer in his Manifestation and Reply 'that under the circumstances mentioned in the Petition, Petitioner is entitled to travel abroad, and that it is in recognition of this right that Respondents have issued his Certificate of Eligibility to Travel, as mentioned in the Answer. 2

The present petition is likewise impressed with a moot and academic aspect. In the motion to dismiss of the Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility to travel had been granted petitioner. A xeroxed copy was enclosed. A resolution for dismissal is, therefore, in order.

From the docket of this Court, it appears that other petitions of this character had been filed in the past, namely, Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing Center, 4 and Gonzales v. Special Committee on Travel. 5 In the aforesaid cases, as in this and the earlier Salonga petition, there was no occasion to pass on the merits of the controversy as the certificates of

eligibility to travel were granted. The necessity for any ruling was thus obviated. Nonetheless, in view of the likelihood that in the future this Court may be faced again with a situation like the present which takes up its time and energy needlessly, it is desirable that respondent Travel Processing Center should exercise the utmost care to avoid the impression that certain citizens desirous of exercising their constitutional right to travel could be subjected to inconvenience or annoyance. In the address of President and Prime Minister Ferdinand E. Marcos before the American Newspaper Publishers Association last Tuesday April 22, 1980, emphasized anew the respect accorded constitutional rights The freedom to travel is certainly one of the most cherished. He cited with approval the ringing affirmation of Willoughby, who, as he noted was "partial to the claims of liberty." 6 Burdick 7 and Willis, 8 both of whom were equally convinced that there be no erosion to human rights even in times of martial law, likewise received from President Marcos the accolade of his approval. It would appear, therefore, that in case of doubt of the Officer-in-Charge of the Travel Processing Center, the view of General Fabian Ver should immediately be sought. It goes without saying that the petition for such certificate of eligibility to travel be filed at the earliest opportunity to facilitate the granting thereof and preclude any disclaimer as to the person desiring to travel being in any way responsible for any delay.

WHEREFORE, the petition is dismissed for being moot and academic.

Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

Antonio, J., is on leave.

 

G.R. No. 177271             May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR. AMEURFINO E. CINCO, Chairman, AND URBAN POOR FOR LEGAL REFORMS (UP-LR), represented by MRS. MYRNA P. PORCARE, Secretary-General, Petitioners, vs.COMMISSION ON ELECTIONS, BIYAHENG PINOY, KAPATIRAN NG MGA NAKAKULONG NA WALANG SALA (KAKUSA), BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), AHON PINOY, AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES, INC. (AGAP), PUWERSA NG BAYANING ATLETA (PBA), ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA MAMAMAYAN, INC. (AGHAM), BABAE PARA SA KAUNLARAN (BABAE KA), AKSYON SAMBAYANAN (AKSA), ALAY SA BAYAN NG MALAYANG PROPESYUNAL AT REPORMANG KALAKAL (ABAY-PARAK), AGBIAG TIMPUYOG ILOCANO, INC. (AGBIAG!), ABANTE ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO (AT), AANGAT ANG KABUHAYAN (ANAK), BAGO NATIONAL CULTURAL SOCIETY OF THE PHILIPPINES (BAGO), ANGAT ANTAS-KABUHAYAN PILIPINO MOVEMENT (AANGAT KA PILIPINO), ARTS BUSINESS AND SCIENCE PROFESSIONAL (ABS), ASSOSASYON NG MGA MALILIIT NA NEGOSYANTENG GUMAGANAP INC. (AMANG), SULONG BARANGAY MOVEMENT, KASOSYO PRODUCERS CONSUMER EXCHANGE ASSOCIATION, INC. (KASOSYO), UNITED MOVEMENT AGAINST DRUGS (UNI-MAD), PARENTS ENABLING PARENTS (PEP), ALLIANCE OF NEO-CONSERVATIVES (ANC), FILIPINOS FOR PEACE, JUSTICE AND PROGRESS MOVEMENT (FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1-UNITED TRANSPORT KOALISYON (1-UNTAK), ALLIANCE FOR BARANGAY CONCERNS (ABC), BIYAYANG BUKID, INC., ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), AKBAY PINOY OFW-NATIONAL INC., (APOI), ALLIANCE TRANSPORT SECTOR (ATS), KALAHI SECTORAL PARTY (ADVOCATES FOR OVERSEAS FILIPINO) AND ASSOCIATION OF ADMINISTRATORS, PROFESSIONALS AND SENIORS (AAPS),Respondents.

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

G.R. No. 177314             May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN FOUNDATION,Petitioners, vs.THE COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

GARCIA, J.:

Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set aside certain issuances of the Commission on Elections (Comelec) respecting party-list groups which have manifested their intention to participate in the party-list elections on May 14, 2007.

In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) and the Urban Poor for Legal Reforms (UP-LR, for short) assail the various Comelec resolutions accrediting private respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list elections on May 14, 2007 without simultaneously determining whether or not their respective nominees possess the requisite qualifications defined in Republic Act (R.A.) No. 7941, or the "Party-List System Act" and belong to the marginalized and underrepresented sector each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated April 3, 2007 effectively denying their request for the release or disclosure of the names of the nominees of the fourteen (14) accredited participating party-list groups mentioned in petitioner Rosales’ previous letter-request.

While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the various party-list groups named in the petitions,1 the petitioners in G.R. No. 177271 have the following additional prayers: 1) that the 33 private respondents named therein be "declare[d] as unqualified to participate in the party-list elections as sectoral organizations, parties or coalition for failure to comply with the guidelines prescribed by the [Court] in [Ang Bagong Bayani v. Comelec2]" and, 2) correspondingly, that the Comelec be enjoined from allowing respondent groups from participating in the May 2007 elections.

In separate resolutions both dated April 24, 2007, the Court en banc required the public and private respondents to file their respective comments on the petitions within a non-extendible period of five (5) days from notice. Apart from respondent Comelec, seven (7) private respondents3 in G.R. No. 177271 and one party-list group4mentioned in G.R. No. 177314 submitted their separate comments. In the main, the separate comments of the private respondents focused on the untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to nullify their accreditation as party-list groups and thus disqualify them and their respective nominees from participating in the May 14, 2007 party-list elections.

The facts:

On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing of manifestation of intent to participate and submission of names of nominees under the party-list system of representation in connection with the May 14, 2007 elections. Pursuant

thereto, a number of organized groups filed the necessary manifestations. Among these – and ostensibly subsequently accredited by the Comelec to participate in the 2007 elections - are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3)AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an overlapping, list.

Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder seeking to disqualify the nominees of certain party-list organizations. Both petitioners appear not to have the names of the nominees sought to be disqualified since they still asked for a copy of the list of nominees. Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to be resolved.

Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list groups do not, as they should, actually represent the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed a letter5 dated March 29, 2007 to Director Alioden Dalaig of the Comelec’s Law Department requesting a list of that groups’ nominees. Another letter6 of the same tenor dated March 31, 2007 followed, this time petitioner Rosales impressing upon Atty. Dalaig the particular urgency of the subject request.

Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales’ requests. The April 13, 2007 issue of the Manila Bulletin, however, carried the front-page banner headline "COMELEC WON’T BARE PARTY-LIST NOMINEES",7 with the following sub-heading: "Abalos says party-list polls not personality oriented."

On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as counsels of petitioner Rosales, forwarded a letter8 to the Comelec formally requesting action and definitive decision on Rosales’ earlier plea for information regarding the names of several party-list nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to the banner headline adverted to earlier, with a request for the Comelec, "collectively or individually, to issue a formal clarification, either confirming or denying … the banner headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en banc Resolution 07-07249 under date April 3, 2007 virtually declaring the nominees’ names confidential and in net effect denying petitioner Rosales’ basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:

RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection with the May 14, 2007 Elections only after 3:00 p.m. on election day.

Let the Law Department implement this resolution and reply to all letters addressed to the Commission inquiring on the party-list nominees. (Emphasis added.)

According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on April 21, 2007. She would later state the observation that the last part of the "Order empowering the Law Department to ‘implement this resolution and reply to all letters … inquiring on the party-list nominees’ is apparently a fool-proof bureaucratic way to distort and mangle the truth and give the impression that the antedated Resolution of April 3, 2007 … is the final answer to the two formal requests … of Petitioners".10

The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA 7941 and UP-LR appear not to be aware, when they filed their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution 07-0724.

To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded by the Comelec to the respondent party-list groups named in their petition on the ground that these groups and their respective nominees do not appear to be qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -

xxx committed grave abuse of discretion … when it granted the assailed accreditations even withoutsimultaneously determining whether the nominees of herein private respondents are qualified or not, or whether or not the nominees are likewise belonging to the marginalized and underrepresented sector they claim to represent in Congress, in accordance with No. 7 of the eight-point guidelines prescribed by the Honorable Supreme in the Ang Bagong Bayani11 case which states that, "not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees." In the case of private respondents, public respondent Comelec granted accreditations without the required simultaneous determination of the qualification of the nominees as part of the accreditation process of the party-list organization itself. (Words in bracket added; italization in the original)12

The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation on the grounds thus advanced in their petition. For, such course of action would entail going over and evaluating the qualities of the sectoral groups or parties in question, particularly whether or not they indeed represent marginalized/underrepresented groups. The exercise would require the Court to make a factual determination, a matter which is outside the office of judicial review by way of special civil action for certiorari. In certiorari proceedings, the Court is not called upon to decide factual issues and the case must be decided on the undisputed facts on record.13 The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of discretion and does not include a review of the tribunal’s evaluation of the evidence.14

Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which petitioners BA-RA 7941 and UP-LR themselves seek to disqualify the nominees of the respondent party-list groups named in their petition.

Petitioners BA-RA 7941’s and UP-LR’s posture that the Comelec committed grave abuse of discretion when it granted the assailed accreditations without simultaneously determining the qualifications of their nominees is without basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list nominee be determined simultaneously with the accreditation of an organization. And as aptly pointed out by private respondent Babae Para sa Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 requires a petition for registration of a party-list organization to be filed with the Comelec "not later than ninety (90) days before the election" whereas the succeeding Section 8 requires the submission "not later than forty-five (45) days before the election" of the list of names whence party-list representatives shall be chosen.

Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures the main issues tendered by the petitioners in these consolidated cases and they may be summarized as follows:

1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list groups, has violated the right to information and free access to documents as guaranteed by the Constitution; and

2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said nominees.

While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject party-list groups on Section 7 of R.A. 7941. This provision, while commanding the publication and the posting in polling places of a certified list of party-list system participating groups, nonetheless tells the Comelec not to show or include the names of the party-list nominees in said certified list. Thus:

SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified list. (Emphasis added.)

And doubtless part of Comelec’s reason for keeping the names of the party list nominees away from the public is deducible from the following excerpts of the news report appearing in the adverted April 13, 2007 issue of theManila Bulletin:

The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of nominees of sectoral parties, organizations, or coalitions accredited to participate in the party-list election which will be held simultaneously with the May 14 mid-term polls.

COMELEC Chairman Benjamin S. Abalos, Sr. … said he and [the other five COMELEC] Commissioners --- believe that the party list elections must not be personality oriented.

Abalos said under [R.A.] 7941 …, the people are to vote for sectoral parties, organizations, or coalitions, not for their nominees.

He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx (Words in brackets and emphasis added)

Insofar as the disclosure issue is concerned, the petitions are impressed with merit.

Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information enshrined in the self-executory15 Section 7, Article III of the Constitution, viz:

Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Complementing and going hand in hand with the right to information is another constitutional provision enunciating the policy of full disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every right of the people recognized as fundamental lies a corresponding duty on the part of those who govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime.16 Without a government’s acceptance of the limitations upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry.

By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information and may seek its enforcement by mandamus.17 And since every citizen by the simple fact of his citizenship possesses the right to be informed, objections on ground of locus standi are ordinarily unavailing.18

Like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. As articulated in Legaspi, supra, the people’s right to know is limited to "matters of public concern" and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving "public interest" and is subject to reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting national security.19

The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow from Legaspi, a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the public.

If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a health department of a city are civil service eligibles, surely the identity of candidates for a lofty elective public office should be a matter of highest public concern and interest.

As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies.

The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on the certified list" is certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the prohibition imposed on the Comelec under said Section 7 is limited in scope and duration, meaning, that it extends only to the certified list which the same provision requires to be posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the "Certified List" the names of the party-list nominees. The Comelec obviously misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941.

The Comelec’s reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be taken, however, to justify its assailed non-disclosure stance which comes, as it were, with a weighty presumption of invalidity, impinging, as it does, on a fundamental right to information.20 While the vote cast in a party-list elections is a vote for a party, such vote, in the end,

would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives.

The Court is very much aware of newspaper reports detailing the purported reasons behind the Comelec’s disinclination to release the names of party-list nominees. It is to be stressed, however, that the Court is in the business of dispensing justice on the basis of hard facts and applicable statutory and decisional laws. And lest it be overlooked, the Court always assumes, at the first instance, the presumptive validity and regularity of official acts of government officials and offices.

It has been repeatedly said in various contexts that the people have the right to elect their representatives on the basis of an informed judgment. Hence the need for voters to be informed about matters that have a bearing on their choice. The ideal cannot be achieved in a system of blind voting, as veritably advocated in the assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner v. Romulo,21 has consistently made it clear that it frowns upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in an election.22 So it must be here for still other reasons articulated earlier.

In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the nominees of the party-list groups named in the herein petitions.

WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the accreditation of the respondents named therein. However, insofar as it seeks to compel the Comelec to disclose or publish the names of the nominees of party-list groups, sectors or organizations accredited to participate in the May 14, 2007 elections, the same petition and the petition in G.R. No. 177314 are GRANTED. Accordingly, the Comelec is hereby ORDERED to immediately disclose and release the names of the nominees of the party-list groups, sectors or organizations accredited to participate in the May 14, 2007 party-list elections. The Comelec is further DIRECTED to submit to the Court its compliance herewith within five (5) days from notice hereof.

This Decision is declared immediately executory upon its receipt by the Comelec.

No pronouncement as to cost.

SO ORDERED.

FIRST DIVISION

[G.R. No. 130716. December 9, 1998]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as chairman of the PCGG), respondents. GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.

D E C I S I O N

PANGANIBAN, J:

Petitioner asks this Court to define the nature and the extent of the peoples constitutional right to information on matters of public concern. Does this right include access to the terms of government negotiations prior to their consummation or conclusion? May the government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the General Agreement and Supplemental Agreement, both dated December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and binding?

The Case

These are the main questions raised in this original action seeking (1) to prohibit and [e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos x x x relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad -- including the so-called Marcos gold hoard; and (2) to [c]ompel respondent[s] to make public all negotiations and agreement, be they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs.[1]

The Facts

Petitioner Francisco I. Chavez, as taxpayer, citizen and former government official who initiated the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the countrys economy, alleges that what impelled him to bring this action were several news reports [2] bannered in a number of broadsheets sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or share these assets.

Petitioner, invoking his constitutional right to information[3] and the correlative duty of the state to disclose publicly all its transactions involving the national interest, [4] demands that respondents make public any and all negotiations and agreements pertaining to PCGGs task of recovering the Marcoses ill-gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of paramount public interest, since it has a debilitating effect on the countrys economy that would be greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to know the transactions or deals being contrived and effected by the government.

Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs. They claim, though, that petitioners action is premature, because there is no

showing that he has asked the PCGG to disclose the negotiations and the Agreements.  And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum[5] to then PCGG Chairman Magtanggol Gunigundo, categorically stated:

This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all with the Marcoses, and would have disapproved them had they been submitted to me.

The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said Agreements, which I reserve for myself as President of the Republic of the Philippines.

The assailed principal Agreement[6] reads:

GENERAL AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between -

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman referred to as the FIRST PARTY,

-- and --

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez

Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like installation of power plants in selected rural areas and initiation of other community projects for the empowerment of the people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in order to bind the nations wounds and start the process of rebuilding this nation as it goes on to the twenty-first century;

WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one another, whether past, present, or future, matured or inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as follows:

1. The parties will collate all assets presumed to be owned by, or held by other parties for the benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered by the settlement. The subject assets shall be classified by the nature thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets which could not appropriately fall under any of the preceding classification. The list shall be based on the full disclosure of the PRIVATE PARTY to insure its accuracy.

2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net of, and exempt from, any form of taxes due the Republic of the Philippines. However, considering the unavailability of all pertinent and relevant documents and information as to balances and ownership, the actual specification of

assets to be retained by the PRIVATE PARTY shall be covered by supplemental agreements which shall form part of this Agreement.

3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees, nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in favor of the FIRST PARTY.For this purpose, the parties shall cooperate in taking the appropriate action, judicial and/or extrajudicial, to recover the same for the FIRST PARTY.

4. All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding against said PARTY for use by the FIRST PARTY in withdrawing any account and/or recovering any asset. The PRIVATE PARTY withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of the $356 million, its accrued interests, and/or any other account; over which the PRIVATE PARTY waives any right, interest or participation in favor of the FIRST PARTY.However, any withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in the presence of any authorized representative of the PRIVATE PARTY.

5. The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers, or any other party acting in similar capacity in behalf of the PRIVATE PARTY are hereby informed through this General Agreement to insure that it is fully implemented and this shall serve as absolute authority from both parties for full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to withdraw said account and/or assets and any other assets which the FIRST PARTY on its own or through the help of the PRIVATE PARTY/their trustees, etc., may discover.

6. Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is being held by another for the benefit of the PRIVATE PARTY and which is not included in the list per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives any right thereto.

7. This Agreement shall be binding on, and inure to the benefit of, the parties and their respective legal representatives, successors and assigns and shall supersede any other prior agreement.

8. The PARTIES shall submit this and any other implementing Agreements to the President of the Philippines for approval. In the same manner, the PRIVATE PARTY shall provide the FIRST PARTY assistance by way of testimony or deposition on any information it may have that could shed light on the cases being pursued by the FIRST PARTY against other parties. The FIRST PARTY shall desist from instituting new suits already subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all other cases pending in the Sandiganbayan and in other courts.

9. In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the PARTIES shall be restored automatically to the status quo ante the signing of this Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ONGOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

By:

[Sgd.]IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.[7]

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.Counsel & Attorney-in-Fact

Petitioner also denounces this supplement to the above Agreement: [8]

SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and between --

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY,

-- and --

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

The parties in this case entered into a General Agreement dated Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local assets located in the Philippines against parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the recovery and/or withdrawal of all assets including lawyers fees, agents fees, nominees service fees, bank charges, traveling expenses and all other expenses related thereto shall be for the account of the PRIVATE PARTY.

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ONGOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOS-ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.[9]

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.Counsel & Attorney-in-Fact

Acting on a motion of petitioner, the Court issued a Temporary Restraining Order [10] dated March 23, 1998, enjoining respondents, their agents and/or representatives from entering into, or perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth.

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues:

(a) Procedural:

(1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and

(2) Whether or not this Court is the proper court before which this action may be filed.

(b) Substantive:

(1) Whether or not this Court could require the PCGG to disclose to the public the details of any agreement, perfected or not, with the Marcoses; and

(2) Whether or not there exist any legal restraints against a compromise agreement between the Marcoses and the PCGG relative to the Marcoses ill-gotten wealth.[11]

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are among the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997. As such, they claim to have personal and direct interest in the

subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and required the respondents to comment thereon. The September 25, 1998 Comment[12] of the solicitor general on said motion merely reiterated his aforecited arguments against the main petition.[13]

The Courts Ruling

The petition is imbued with merit.

First Procedural Issue: Petitioners Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition. He submits that since ill-gotten wealth belongs to the Filipino people and [is], in truth and in fact, part of the public treasury, any compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such assets.

Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of paramount public interest; and if they immeasurably affect the social, economic, and moral well-being of the people.

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, [14] such as in this case. He invokes several decisions[15] of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement.  Respondents further insist that the instant petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the instant petition. Access to public documents and records is a public right, and the real parties in interest are the people themselves.[16]

In Taada v. Tuvera,[17] the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action.[18] In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the

1973 Constitution,[19] in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners legal standing, the Court declared that the right they sought to be enforced is a public right recognized by no less than the fundamental law of the land.

Legaspi v. Civil Service Commission,[20] while reiterating Taada, further declared that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general public which possesses the right.[21]

Further, in Albano v. Reyes,[22] we said that while expenditure of public funds may not have been involved under the questioned contract for the development, the management and the operation of the Manila International Container Terminal, public interest [was] definitely involved considering the important role [of the subject contract] x x x in the economic development of the country and the magnitude of the financial consideration involved. We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioners standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers -- a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioners legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed.

In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses ill-gotten properties may adversely affect the satisfaction of their claims.

Second Procedural Issue:The Courts Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is neither a justiciable controversy nor a violation of petitioners rights by the PCGG. He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is premature. Furthermore, respondents themselves have opposed the Marcos heirs motion, filed in the graft court, for the approval of the subject Agreements. Such opposition belies petitioners claim that the government, through respondents, has concluded a settlement with the Marcoses as regards their alleged ill-gotten assets.

In Taada and Legaspi, we upheld therein petitioners resort to a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public duty mandated by no less than the fundamental law.[23] Further, Section 5, Article VIII of the Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warrantoand habeas corpus.

Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending resolution. There may seem to be some merit in such argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms contained in said Agreements.  However, petitioner is here seeking the public disclosure of all negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs.

In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot.Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin constitutional provisions on public transactions. This broad and prospective relief sought by the instant petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:Public Disclosure of Terms of Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution:

Sec. 7 [Article III]. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Respondents opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those still being considered. As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to fulfill their express undertaking therein. Thus, the Agreements have not become effective. Respondents add that they are not aware of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets.

The information and the transactions referred to in the subject provisions of the Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. However, the following are some of the recognized restrictions: (1) national security matters and intelligence information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.

Limitations to the Right: (1) National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.[24] But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information,[25] provided that they are examined in strict confidence and given scrupulous protection.

Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.[26]

(2) Trade Secrets and Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code[27] and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act[28]) are also exempted from compulsory disclosure.[29]

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, [30] which courts may not inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities.

(4) Other Confidential Information

The Ethical Standards Act[31] further prohibits public officials and employees from using or divulging confidential or classified information officially known to them by reason of their office and not made available to the public.[32]

Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.[33]

Scope: Matters of Public Concern and Transactions Involving Public Interest

In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the information sought must be matters of public concern, access to which may be limited by law. Similarly, the state policy of full public disclosure extends only to transactions involving public interest and may also be subject to reasonable conditions prescribed by law. As to the meanings of the terms public interest and public concern, the Court, in Legaspi v. Civil Service Commission,[35] elucidated:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

Considered a public concern in the above-mentioned case was the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Taada. Likewise did the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa) qualify the information sought in Valmonte as matters of public interest and concern. In Aquino-Sarmiento v. Morato,[36] the Court also held that official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever appropriate x x x, except when otherwise provided by law or when required by the public interest. In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees.[37]

In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs.This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants.[38] Undeniably, the essence of democracy lies in the free flow of thought;[39] but thoughts and ideas must be well-informed so

that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.[40]

The Nature of the Marcoses Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by President Corazon C. Aquino was specifically mandated to [r]ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or accounts.[41] Thus, President Aquinos very first executive orders (which partook of the nature of legislative enactments) dealt with the recovery of these alleged ill-gotten properties.

Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by former President Marcos, his immediate family, relatives and close associates both here and abroad.

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government.

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the overriding considerations of national interest and national survival, required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses alleged ill-gotten wealth is a matter of public concern and imbued with public interest.[42] We may also add that ill-gotten wealth, by its very nature, assumes a public character. Based on the aforementioned Executive Orders, ill-gotten wealth refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines. Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents disclosure of any agreement that may be arrived at concerning the Marcoses purported ill-gotten wealth.

Access to Information on Negotiating Terms

But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was sought and clearly addressed by the constitutional commissioners during their deliberations, which we quote hereunder:[43]

MR. SUAREZ. And when we say transactions which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

MR. OPLE. The transactions used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction?

MR. OPLE. Yes, subject to reasonable safeguards on the national interest.

Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications[44] during the stage when common assertions are still in the process of being formulated or are in the exploratory stage. There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier -- such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information.

Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided the agreement does not violate any law.

Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitime.[45] And like any other contract, the terms and conditions of a compromise must not be contrary to law, morals, good customs, public policy or public order.[46] A compromise is binding and has the force of law between the parties, [47] unless the consent of a party is vitiated -- such as by mistake, fraud, violence, intimidation or undue influence -- or when there is forgery, or if the terms of the settlement are so palpably unconscionable. In the latter instances, the agreement may be invalidated by the courts.[48]

Effect of Compromise on Civil Actions

One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation.[49] In fact, the law urges courts to persuade the parties in a civil case to agree to a fair settlement.[50] As an incentive, a court may mitigate damages to be paid by a losing party who shows a sincere desire to compromise.[51]

In Republic & Campos Jr. v. Sandiganbayan,[52] which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y. Campos and family, the Court held that in the absence of an express prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14, particularly the just and expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld in Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC[53] and Republic v. Benedicto,[54] which ruled in favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.

Immunity from Criminal Prosecution

However, any compromise relating to the civil liability arising from an offense does not automatically terminate the criminal proceeding against or extinguish the criminal liability of the malefactor.[55] While a compromise in civil suits is expressly authorized by law, there is no similar general sanction as regards criminal liability. The authority must be specifically conferred. In the present case, the power to grant criminal immunity was conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, which provides:

SECTION 5. The Presidential Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or

testifies in any investigation conducted by such Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latters guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or by the Commission.

The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the person to whom criminal immunity is granted provides information or testifies in an investigation conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such information or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From the wording of the law, it can be easily deduced that the person referred to is a witness in the proceeding, not the principal respondent, defendant or accused.

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was [i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the properties and assets [--] disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [--] to the Government of the Republic of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the Philippine Government. [56] Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts and omissions prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against them before the competent courts.

Validity of the PCGG-Marcos Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case.

While the General Agreement states that the Marcoses shall provide the [government] assistance by way of testimony or deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other parties,[57] the clause does not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro formacompliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may have unlawfully acquired public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Constitution.The power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies.[58] Section 28 (4), Article VI of the Constitution, specifically provides: No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights.Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate the constitutional rule that taxation shall be uniform and equitable.[59]

Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes. Such authority may be exercised only when (1) there is reasonable doubt asto the validity of the claim against the taxpayer, and (2) the taxpayers financial position demonstrates a clear inability to pay.[60] Definitely, neither requisite is present in the case of the Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part of which they will be allowed to retain.  Nor can the PCGG grant of tax exemption fall within the power of the commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the collection of the tax due.[61] In this instance, the cancellation of tax liability is done even before the determination of the amount due. In any event, criminal violations of the Tax Code, for which legal actions have been filed in court or in which fraud is involved, cannot be compromised.[62]

Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan and other courts.[63] This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecutor; [64] but the court decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint.[65] The prosecutions motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court to make its own evaluation of the merits of the case, because granting such motion is equivalent to effecting a disposition of the case itself.[66]

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims, whether past, present, or future, matured or inchoate, against the Marcoses.[67] Again, this all-encompassing stipulation is

contrary to law. Under the Civil Code, an action for future fraud may not be waived.[68] The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the government thereby relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all. This is a palpable violation of the due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for public officials to amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government and which shall be retained by the Marcoses. While the Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to the said deposits. No similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of the Anti-Graft and Corrupt Practices Act,[69] invite their indictment for corruption under the said law.

Finally, the absence of then President Ramos approval of the principal Agreement, an express condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed above, even if such approval were obtained, the Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND VOIDfor being contrary to law and the Constitution. Respondent PCGG, its officers and all government functionaries and officials who are or may be directly or indirectly involved in the recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms of any proposed compromise settlement, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions embodied in this Decision. No pronouncement as to costs.

SO ORDERED.

Davide Jr. C.J. (Chairman), Melo, and Quisumbing JJ., concur.Vitug, J., please see separate opinion.

[1] Petition, p. 3; rollo, p. 4.

[2] Annexed to the Petition were the following news articles:

1. Estrella Torres, $2-B FM Hoard Found, Today, September 25, 1997, p.1.2. Govt Working Out Secret Deal on Marcos Gold, The Manila Times, September 25, 1997, p.1.3. Estrella Torres, FVR Man Has FM Money, Today, September 27, 1997, p.1.4. Donna Cueto and Cathy Caares, Swiss, RP Execs Plotted Gold Sale, Philippine Daily Inquirer, September 28, 1997.

5. Jocelyn Montemayor, Coded Swiss Accounts Traced to Palace Boys? The Manila Times, September 29, 1997.

[3] 7, Art. III, 1987 Constitution.

[4] 28, Art. II, ibid.

[5] The solicitor generals Manifestation, dated August 11, 1998.

[6] Rollo, pp. 213-216.

[7] It appears that Ferdinand R. Marcos Jr. did not sign the General Agreement.

[8] Rollo, pp. 217-218.

[9] It appears that Ferdinand R. Marcos Jr. did not sign the Supplemental Agreement either.

[10] Rollo, pp. 159-160.

[11] Resolution dated March 16, 1998, pp. 1-2; ibid., pp. 147-148.

[12] Rollo, pp. 396-403.

[13] This case was deemed submitted for resolution on September 28, 1998, when the Court received the solicitor generals Comment on the Motion and Petition for Intervention.

[14] Citing Legaspi v. Civil Service Commission, 150 SCRA 530, 536, May 29, 1987.

[15] Such as Avelino v. Cuenco, 83 Phil 17 (1949); Basco v. PAGCOR, 197 SCRA 52, May 14, 1991; Kapatiran ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371, June 30, 1988.

[16] Joaquin G. Bernas, SJ, The Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 334.

[17] 136 SCRA 27, 36-37, April 24, 1985, per Escolin, J.

[18] Quoting from Severino v. Governor General, 16 Phil 366, 378 (1910).

[19] Section 6. The right of the people to information on matters of public concern shall be recognized, access to official records, and to documents and papers pertaining to official acts, transactions, or decisions shall be afforded the citizens subject to such limitation as may be provided by law.

[20] Supra, per Cortes, J.

[21] Also in Gonzales v. Chavez, 205 SCRA 816, 847, February 4, 1992. Cf. Oposa v. Factoran, 224 SCRA 792, July 30, 1993.

[22] 175 SCRA 264, 273, July 11, 1989, per Paras, J.

[23] See also Valmonte v. Belmonte Jr., 170 SCRA 256, February 13, 1989.

[24] IV RECORD OF THE CONSTITUTIONAL COMMISSION 921-922, 931 (1986) [hereafter, RECORD]; Almonte v. Vasquez, 244 SCRA 286, 295, 297, May 23, 1995.

[25] Almonte, ibid.

[26] V RECORD 25.

[27] RA No. 8293, approved on June 6, 1997.

[28] RA No. 1405, as amended.

[29] V RECORD 25. See also Vol. I, p. 709.

[30] 66 Am Jur 27, Records and Recording Laws.

[31] RA No. 6713, enacted on February 20, 1989.

[32] 7 (c), ibid.

[33] Legaspi, supra.

[34] Supra, p. 266.

[35] Supra, p. 541. Also quoted in Valmonte v. Belmonte Jr., supra.

[36] 203 SCRA 515, 522-23, November 13, 1991.

[37] 5(b) & 8, RA No. 6713.

[38] 66 Am Jur 19, Records and Recording Laws, citing MacEwan v. Holm, 266 Or 27, 359 P2d 413, 85 ALR2d 1086.

[39] See Legaspi, supra, p. 540.

[40] 16A Am Jur 2d 315-317, 497.

[41] 1 (d), Art. II of Proclamation No. 3 (known as the Provisional or Freedom Constitution), promulgated on March 25, 1986.

[42] Republic v. Provident International Resources Corp., 269 SCRA 316, 325, March 7, 1997; Republic v. Palanca, 182 SCRA 911, 918, February 28, 1990; Republic v. Lobregat et al., 376 SCRA 388, January 23, 1995.

[43] V RECORD 25 (1986).

[44] 66 Am Jur 2d 39.

[45] Art. 2035, Civil Code; Republic v. Sandiganbayan, Benedict, et al., 226 SCRA 314, 327, September 10, 1993.

[46] Art. 2028 in rel. to Art. 1306, Civil Code; Republic v. Benedicto, ibid., citing First Philippine Holdings Corp. v. Sandiganbayan, 202 SCRA 212, September 30, 1991; Heirs of Gabriel Capili v. Court of Appeals, 234 SCRA 110, 115, July 14, 1994.

[47] Sanchez v. Court of Appeals, GR No. 108947, September 29, 1997.

[48] Art. 2038 in rel. to Art. 1330, Civil Code; Domingo v. Court of Appeals, 255 SCRA 189, 199-200, March 20, 1996; Unicane Workers Union, CLUP v. NLRC, 261 SCRA 573, September 9, 1996; Del Rosario v. Madayag, 247 SCRA 767, 770, August 28, 1995.

[49] Domingo v. Court of Appeals, supra; Del Rosario v. Madayag, supra; Osmea v. Commission on Audit, 238 SCRA 463, 471, November 29, 1994.

[50] Art. 2029, Civil Code.

[51] Art. 2031, ibid.

[52] 173 SCRA 72, 84, May 4, 1989.

[53] 207 SCRA 659, 667, March 31, 1992.

[54] Supra, pp. 319 & 324.

[55] Art. 2034, Civil Code.

[56] Republic & Campos Jr. v. Sandiganbayan, supra, p. 83.

[57] General Agreement, par. 8.

[58] Mactan Cebu International Airport Authority v. Marcos, 261 SCRA 667, September 11, 1996.

[59] 28 (1), Art. VI, Constitution. Commissioner of Internal Revenue v. Court of Appeals, 261 SCRA 236, August 29, 1996; Tolentino v. Secretary of Finance, 249 SCRA 628, October 30, 1995; Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371, 383, June 30, 1988, citing City of Baguio v. De Leon, 134 Phil. 912, 919-920 (1968).

[60] 204 (1), National Internal Revenue Code, as amended by 3, RA 7646.

[61] 204 (2), NIRC.

[62] Par. 2, ibid.

[63] General Agreement, par. 8.

[64] People v. Nazareno, 260 SCRA 256, August 1, 1996; People v. Porras, 255 SCRA 514, March 29, 1996.

[65] Ledesma v. Court of Appeals, GR No. 113216, September 5, 1997, pp. 21-22.

[66] Ibid., p. 23, citing Crespo v. Mogul, 151 SCRA 462, June 30, 1987; Marcelo v. Court of Appeals, 235 SCRA 39, August 4, 1994; Martinez v. Court of Appeals, 237 SCRA 575, October 13, 1994; and Roberts Jr. v. Court of Appeals, 254 SCRA 307, March 5, 1996.

[67] Last Whereas clause of the General Agreement.

[68] Art. 1171.

[69] Specifically 3 (g) of RA 3019.

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners, vs.FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

 

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent be directed:

 

(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or

(b) to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano BelmonteGSIS General ManagerArroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us.

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the present regime.

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.

Very truly yours,

(Sgd.) RICARDO C. VALMONTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte108 E. Benin StreetCaloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications, President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of the opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret very much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRODeputy General Counsel[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right to information, is one which can be passed upon by the regular courts more competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of administrative remedies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided:

The right of the people to information on 'matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the

people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be were empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not exempted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]

In the Tañada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citezens. InLegaspi, it was the "legitimate concern of citezensof ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through mandamus proceedings,viz., that the information sought must not be among those excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of the government, and of the people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc[130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic

distinctions between absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modem society has developed. All the forces of technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the people's right of access to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that

the government, whether carrying out its sovereign attributes or running some business, discharges the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled corporations and transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from the records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" — referring to the transactions of the State — and when we say the "State" which I suppose would include all of the various agencies, departments, ministries and instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?

MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.

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

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs.EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS,Respondents.

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

G.R. No. 169881             April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs.THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.

D E C I S I O N

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 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.

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.

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."

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."

x x x

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 mayprobably 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."

x x x

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. 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 placewhere 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

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

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.

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.

x x x

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.

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:

x x x

(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.

x x x

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.

x x x

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:

x x x

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 toheightened 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