A.    Privacy of Communications and Correspondence (Sec. 3(1), Art.

III)
i.        Rule and exceptions
1.      Ople v. Torres, G.R. No. 127685, July 23, 1998
2.      Jose Jesus M. Desini, Jr., et al., The Secretary of Justice, et
al., G.R. No. 203335, February 11, 2014
ii.      R.A. 4200
1.      Ramirez vs. CA, 248 SCRA 590
2.      Gaanan vs. IAC, 145 SCRA 112
iii.    Exclusionary rule (Sec. 3(2), Art. III)
1.      Zulueta vs. CA, 253 SCRA 699
2.      Waterous Drug Corp. vs. NLRC, October 16, 1997

1. Ople v. Torres, G.R. No. 127685, July 23, 1998

354 Phil. 948

EN BANC

[ G.R. No. 127685, July 23, 1998 ]

BLAS F. OPLE, PETITIONER, VS. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR

VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR
SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER
CENTER AND CHAIRMAN OF THE COMMISSION ON AUDIT, RESPONDENTS.

DECISION

PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two
important constitutional grounds, viz: one, it is a usurpation of the power of Congress to
legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy.
We grant the petition for the rights sought to be vindicated by the petitioner need
stronger barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as
follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic service and social security providers
and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services on social security and reduce, if not totally eradicate,
fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and
social security providing agencies and other government instrumentalities is required to
achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by

virtue of the powers vested in me by law, do hereby direct the following:

SECTION 1. Establishment of a National Computerized Identification Reference System.

A decentralized Identification Reference System among the key basic services and social
security providers is hereby established.

SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee

(IACC) to draw-up the implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with the following as
members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National Statistics Office Managing
Director, National Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as

secretariat to the IACC and as such shall provide administrative and technical support to
the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by

the NSO shall serve as the common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.

SEC. 5. Conduct of Information Dissemination Campaign.  The Office of the Press

Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.
SEC. 7. Submission of Regular Reports.  The NSO, GSIS and SSS shall submit regular
reports to the Office of the President, through the IACC, on the status of
implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22,
1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition
against respondents, then Executive Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-Agency Coordinating Committee,
are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its implementation.

Petitioner contends:

"A.     THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY
THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.

B.      THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C.      THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK

FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION."[2]

Respondents counter-argue:

A.      THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A

JUDICIAL REVIEW;

B.      A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE

POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF
CONGRESS;

C.      THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION

REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;

D.      A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.[3]

We now resolve.
I

As is usual in constitutional litigation, respondents raise the threshold issues relating to

the standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a

distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power.[4] As taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of
public funds and the misuse of GSIS funds to implement A.O. No. 308.[5]

The ripeness for adjudication of the petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails
A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature for
the rules yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social Security System
(SSS) caused the publication of a notice to bid for the manufacture of the National
Identification (ID) card.[6] Respondent Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have completed the guidelines for the
national identification system.[7] All signals from the respondents show their unswerving
will to implement A.O. No. 308 and we need not wait for the formality of the rules to
pass judgment on its constitutionality. In this light, the dissenters insistence that we
tighten the rule on standing is not a commendable stance as its result would be to
throttle an important constitutional principle and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond the power of the President to
issue. He alleges that A.O. No. 308 establishes a system of identification that is all-
encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between
the power of the Legislature to make laws and the power of the Executive to execute
laws will disturb their delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to another will be given
a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative
power is "the authority, under the Constitution, to make laws, and to alter and repeal
them."[8] The Constitution, as the will of the people in their original, sovereign and
unlimited capacity, has vested this power in the Congress of the Philippines.[9] The grant
of legislative power to Congress is broad, general and comprehensive.[10] The legislative
body possesses plenary power for all purposes of civil government.[11] Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere.[12] In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and
extends to matters of general concern or common interest.[13]

While Congress is vested with the power to enact laws, the President executes the
laws.[14] The executive power is vested in the President.[15] It is generally defined as the
power to enforce and administer the laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due observance.[17]

As head of the Executive Department, the President is the Chief Executive. He

represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department.[18] He has control over the executive
department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office, or interfere with
the discretion of its officials.[19] Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace
and public order. Thus, he is granted administrative power over bureaus and offices
under his control to enable him to discharge his duties effectively.[20]

Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs.[21] It enables the President to fix a
uniform standard of administrative efficiency and check the official conduct of his
agents.[22] To this end, he can issue administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."[23]

An administrative order is an ordinance issued by the President which relates to specific

aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out the
legislative policy.[24] We reject the argument that A.O. No. 308 implements the legislative
policy of the Administrative Code of 1987. The Code is a general law and "incorporates
in a unified document the major structural, functional and procedural principles of
governance"[25] and "embodies changes in administrative structures and procedures
designed to serve the people."[26] The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the Distribution of Powers of
the three branches of Government, Book III on the Office of the President, Book IV on
the Executive Branch, Book V on the Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books contain
provisions on the organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the organization and
functions of the Constitutional Commissions and other constitutional bodies, the rules
on the national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers
both the internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the functions performed
by administrative officials on private individuals or parties outside government.[27]

It cannot be simplistically argued that A.O. No. 308 merely implements the

Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of
various contending state policies-- the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important
freedom of thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be covered by
law.

Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it
confers no right, imposes no duty, affords no protection, and creates no office. Under
A.O. No. 308, a citizen cannot transact business with government agencies delivering
basic services to the people without the contemplated identification card. No citizen will
refuse to get this identification card for no one can avoid dealing with government. It is
thus clear as daylight that without the ID, a citizen will have difficulty exercising his
rights and enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be restricted in
its scope and application. Regulations are not supposed to be a substitute for the
general policy-making that Congress enacts in the form of a public law. Although
administrative regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws."[28]

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot
pass constitutional muster as an administrative legislation because facially it violates the
right to privacy. The essence of privacy is the "right to be let alone."[29] In the 1965 case
of Griswold v. Connecticut,[30] the United States Supreme Court gave more substance to
the right of privacy when it ruled that the right has a constitutional foundation. It held
that there is a right of privacy which can be found within the penumbras of the First,
Third, Fourth, Fifth and Ninth Amendments,[31] viz:
"Specific guarantees in the Bill of Rights have penumbras formed by emanations from
these guarantees that help give them life and substance x x x. Various guarantees create
zones of privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers `in any house' in time of peace without the consent of the
owner is another facet of that privacy. The Fourth Amendment explicitly affirms the
`right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: `The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.'"
In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:

"xxx

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an unconstitutional
invasion of the right of privacy of married persons; rightfully it stressed "a relationship
lying within the zone of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The constitutional right to privacy has
come into its own.

So it is likewise in our jurisdiction. 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. Ultimate 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 modern society has
developed. All the forces of a 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.'"
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized
and enshrined in several provisions of our Constitution.[33] It is expressly recognized in
Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

x                                       x                                       x.

Sec. 6. 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.

x                                       x                                       x.

Sec. 8. 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.

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil Code
provides that "[e]very person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons" and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another.[35] It also holds a public
officer or employee or any private individual liable for damages for any violation of the
rights and liberties of another person,[36] and recognizes the privacy of letters and other
private communications.[37] The Revised Penal Code makes a crime the violation of
secrets by an officer,[38] the revelation of trade and industrial secrets,[39] and trespass to
dwelling.[40] Invasion of privacy is an offense in special laws like the Anti-Wiretapping
Law,[41] the Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The
Rules of Court on privileged communication likewise recognize the privacy of certain
information.[44]

Unlike the dissenters, we prescind from the premise that the right to privacy is a
fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state interest and
that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need
to provide our citizens and foreigners with the facility to conveniently transact business
with basic service and social security providers and other government instrumentalities
and (2) the need to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable whether these
interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if
implemented will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference
Number (PRN) as a "common reference number to establish a linkage among concerned
agencies" through the use of "Biometrics Technology" and "computer application
designs."

Biometry or biometrics is "the science of the application of statistical methods to

biological facts; a mathematical analysis of biological data."[45] The term "biometrics" has
now evolved into a broad category of technologies which provide precise confirmation
of an individual's identity through the use of the individual's own physiological and
behavioral characteristics.[46] A physiological characteristic is a relatively stable physical
characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A
behavioral characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke.[47] Most biometric identification systems use a card or
personal identification number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or entering the PIN is
the legitimate owner of the card or PIN.[48]

A most common form of biological encoding is finger-scanning where technology scans

a fingertip and turns the unique pattern therein into an individual number which is
called a biocrypt. The biocrypt is stored in computer data banks[49] and becomes a
means of identifying an individual using a service. This technology requires one's
fingertip to be scanned every time service or access is provided.[50] Another method is
the retinal scan. Retinal scan technology employs optical technology to map the
capillary pattern of the retina of the eye. This technology produces a unique print similar
to a finger print.[51] Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted from the skin
of people.[52] The latest on the list of biometric achievements is the thermogram.
Scientists have found that by taking pictures of a face using infra-red cameras, a unique
heat distribution pattern is seen. The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat signature."[53]

In the last few decades, technology has progressed at a galloping rate. Some science
fictions are now science facts. Today, biometrics is no longer limited to the use of
fingerprint to identify an individual. It is a new science that uses various technologies in
encoding any and all biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological characteristics and
what particular biometrics technology shall be used to identify people who will seek its
coverage. Considering the banquet of options available to the implementors of A.O. No.
308, the fear that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not
state whether encoding of data is limited to biological information alone for
identification purposes. In fact, the Solicitor General claims that the adoption of the
Identification Reference System will contribute to the "generation of population data for
development planning."[54] This is an admission that the PRN will not be used solely for
identification but for the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for a purpose other
than the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be
underplayed as the dissenters do. Pursuant to said administrative order, an individual
must present his PRN everytime he deals with a government agency to avail of basic
services and security. His transactions with the government agency will necessarily be
recorded-- whether it be in the computer or in the documentary file of the agency. The
individual's file may include his transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for medication, hospitalization, etc.
The more frequent the use of the PRN, the better the chance of building a huge and
formidable information base through the electronic linkage of the files.[55] The data may
be gathered for gainful and useful government purposes; but the existence of this vast
reservoir of personal information constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to resist.[56]

We can even grant, arguendo, that the computer data file will be limited to the name,
address and other basic personal information about the individual.[57] Even that
hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again
said order does not tell us in clear and categorical terms how these information
gathered shall be handled. It does not provide who shall control and access the data,
under what circumstances and for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the information.[58] Well to note, the
computer linkage gives other government agencies access to the information. Yet, there
are no controls to guard against leakage of information. When the access code of the
control programs of the particular computer system is broken, an intruder, without fear
of sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system.[59]

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information
which will be gathered about our people will only be processed for unequivocally
specified purposes.[60] The lack of proper safeguards in this regard of A.O. No. 308 may
interfere with the individual's liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous persons to access confidential
information and circumvent the right against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures.[61] The possibilities of abuse and misuse of the PRN,
biometrics and computer technology are accentuated when we consider that the
individual lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded.[62] They threaten the very abuses that the Bill of Rights
seeks to prevent.[63]

The ability of a sophisticated data center to generate a comprehensive cradle-to-grave

dossier on an individual and transmit it over a national network is one of the most
graphic threats of the computer revolution.[64] The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes.[65] It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with
other data on the subject.[66] Once extracted, the information is putty in the hands of
any person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would
dismiss its danger to the right to privacy as speculative and hypothetical. Again, we
cannot countenance such a laidback posture. The Court will not be true to its role as the
ultimate guardian of the people's liberty if it would not immediately smother the sparks
that endanger their rights but would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable
expectation of privacy with regard to the National ID and the use of biometrics
technology as it stands on quicksand. The reasonableness of a person's expectation of
privacy depends on a two-part test: (1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2) whether this expectation is one that society
recognizes as reasonable.[67] The factual circumstances of the case determines the
reasonableness of the expectation.[68] However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or diminish this
expectation.[69] The use of biometrics and computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation of privacy.[70] As technology advances,
the level of reasonably expected privacy decreases.[71] The measure of protection
granted by the reasonable expectation diminishes as relevant technology becomes
more widely accepted.[72] The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in hardware and software
computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a
reasonable expectation of privacy, regardless of technology used, cannot be inferred
from its provisions.

The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules
and regulations merely implement the policy of the law or order. On its face, A.O. No.
308 gives the IACC virtually unfettered discretion to determine the metes and bounds of
the ID System.

Nor do our present laws provide adequate safeguards for a reasonable expectation of
privacy. Commonwealth Act No. 591 penalizes the disclosure by any person of data
furnished by the individual to the NSO with imprisonment and fine.[73] Republic Act No.
1161 prohibits public disclosure of SSS employment records and reports.[74] These laws,
however, apply to records and data with the NSO and the SSS. It is not clear whether
they may be applied to data with the other government agencies forming part of the
National ID System. The need to clarify the penal aspect of A.O. No. 308 is another
reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of
privacy by using the rational relationship test.[75] He stressed that the purposes of
A.O. No. 308 are: (1) to streamline and speed up the implementation of basic
government services, (2) eradicate fraud by avoiding duplication of services, and (3)
generate population data for development planning. He concludes that these purposes
justify the incursions into the right to privacy for the means are rationally related to the
end.[76]

We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the

constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police
power measure. We declared that the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities, his sources of income and expenses,
did not infringe on the individual's right to privacy. The law was enacted to promote
morality in public administration by curtailing and minimizing the opportunities for
official corruption and maintaining a standard of honesty in the public service.[78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute,
not an administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is
clear on what practices were prohibited and penalized, and it was narrowly drawn to
avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we
now hold that when the integrity of a fundamental right is at stake, this court will give
the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not
do for the authorities to invoke the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove that their act is not irrational
for a basic right can be diminished, if not defeated, even when the government does not
act irrationally. They must satisfactorily show the presence of compelling state interests
and that the law, rule, or regulation is narrowly drawn to preclude abuses. This
approach is demanded by the 1987 Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism. In case of doubt, the least we can
do is to lean towards the stance that will not put in danger the rights protected by the
Constitution.

The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen, the
United States Supreme Court was presented with the question of whether the State of
New York could keep a centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's prescription. The New York
State Controlled Substances Act of 1972 required physicians to identify patients
obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized
medical use but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that some people might
decline necessary medication because of their fear that the computerized data may be
readily available and open to public disclosure; and that once disclosed, it may
stigmatize them as drug addicts.[80] The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual interest in avoiding
disclosure of personal matters, and the interest in independence in making certain kinds
of important decisions. The U.S. Supreme Court held that while an individual's interest
in avoiding disclosure of personal matters is an aspect of the right to privacy, the statute
did not pose a grievous threat to establish a constitutional violation. The Court found
that the statute was necessary to aid in the enforcement of laws designed to minimize
the misuse of dangerous drugs. The patient-identification requirement was a product of
an orderly and rational legislative decision made upon recommendation by a specially
appointed commission which held extensive hearings on the matter. Moreover, the
statute was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the gathering,
storage and retrieval of the information. It enumerated who were authorized to access
the data. It also prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients' right to privacy
was justified by a valid exercise of police power. As we discussed above, A.O. No. 308
lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per
se against the use of computers to accumulate, store, process, retrieve and transmit
data to improve our bureaucracy. Computers work wonders to achieve the efficiency
which both government and private industry seek. Many information systems in
different countries make use of the computer to facilitate important social objectives,
such as better law enforcement, faster delivery of public services, more efficient
management of credit and insurance programs, improvement of telecommunications
and streamlining of financial activities.[81] Used wisely, data stored in the computer could
help good administration by making accurate and comprehensive information for those
who have to frame policy and make key decisions.[82] The benefits of the computer has
revolutionized information technology. It developed the internet,[83] introduced the
concept of cyberspace[84] and the information superhighway where the individual,
armed only with his personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all
incursions into individual privacy. The right is not intended to stifle scientific and
technological advancements that enhance public service and the common good. It
merely requires that the law be narrowly focused[85] and a compelling interest justify
such intrusions.[86] Intrusions into the right must be accompanied by proper safeguards
and well-defined standards to prevent unconstitutional invasions. We reiterate that any
law or order that invades individual privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
"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. Ultimate 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 modern
society has developed. All the forces of a 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."[87]

IV

The right to privacy is one of the most threatened rights of man living in a mass society.
The threats emanate from various sources-- governments, journalists, employers, social
scientists, etc.[88] In the case at bar, the threat comes from the executive branch of
government which by issuing A.O. No. 308 pressures the people to surrender their
privacy by giving information about themselves on the pretext that it will facilitate
delivery of basic services. Given the record-keeping power of the computer, only the
indifferent will fail to perceive the danger that A.O. No. 308 gives the government the
power to compile a devastating dossier against unsuspecting citizens. It is timely to take
note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his limitations. In a
way, the threat is that because of its record-keeping, the society will have lost its benign
capacity to forget."[89] Oblivious to this counsel, the dissents still say we should not be
too quick in labelling the right to privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" declared null
and void for being unconstitutional.

SO ORDERED.

Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza  in their
dissents.
Regalado, J., in the result.
Davide, Jr., in the result; joins J. Panganiban in his separate opinion.
Romero, Vitug and Panganiban, JJ., see separate opinion.
Kapunan, and Mendoza, JJ., see dissenting opinion.
Bellosillo, and  Martinez, JJ., concur.
Purisima, J., joins J. Mendoza’s  dissent.

[1]
 Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438,
478 [1928].

[2]
 Petition, p. 9, Rollo, p. 11.

[3]
 Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74.

[4]
 Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992];
Tolentino v. Commission on Elections, 41 SCRA 702 [1971].

[5]
 Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual v. Secretary of Public
Works, 110 Phil. 331 [1960].

[6]
 "Invitation to Bid," Annex "E" to the Petition, Rollo, p. 50.

[7]
 Annex "B" to Petitioner's Reply, Rollo, p. 144.

[8]
 Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 [1927].

[9]
 Section 1, Article VI, 1987 Constitution

[10]
 Fernando, The Philippine Constitution, pp. 175-176 [1974].

[11]
 Id., at 177; citing the concurring opinion of Justice Laurel in Schneckenburger v.
Moran, 63 Phil. 249, 266 [1936].

[12]
 Vera v. Avelino, 77 Phil. 192, 212 [1936].

[13]
 See concurring opinion of Justice Laurel in Schneckenburger v. Moran, supra, at 266-
267.

[14]
 Government of the Philippine Islands v. Springer, 50 Phil. 259, 305 [1927].
[15]
 Section 1, Article VII, 1987 Constitution.

[16]
 Cruz, Philippine Political Law, p. 173 [1996].

[17]
 Tanada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961].

[18]
 Section 17, Article VII of the 1987 Constitution provides:

"Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed."

[19]
 Pelaez v. Auditor General, 15 SCRA 569, 583 [1965].

[20]
 Sinco, Philippine Political Law, pp. 234-235 [1962].

[21]
 Id., at 234.

[22]
 Id., at 235.

[23]
 Section 3, Chapter 2, Title I, Book III, Administrative Code of 1987.

[24]
 Cruz, Philippine Administrative Law, p.18 (1991).

[25]
 Third Whereas Clause, Administrative Code of 1987.

[26]
 Fourth Whereas Clause, Administrative Code of 1987.

[27]
 See Cortes, Philippine Administrative Law, pp. 2-5 [1984].

[28]
 Fisher, Constitutional Conflicts Between Congress and the President, 4th ed., pp. 106-
107.

[29]
 Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren and Brandeis, "The
Right to Privacy," 4 Harvard Law Review 193-220 [1890] - this article greatly influenced the
enactment of privacy statutes in the United States (Cortes, I., The Constitutional
Foundations of Privacy, p. 15 [1970]).

[30]
 381 U.S. 479, 14 L. ed. 2d 510 [1965].

[31]
 AMENDMENT I [1791]

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging 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.

AMENDMENT III [1791]
No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV [1791]

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.

AMENDMENT V [1791]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation.

xxx

AMENDMENT IX [1791]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.

[32]
 22 SCRA 424, 444-445.

[33]
 Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of
Privacy, p. 18 [1970].

[34]
 Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].

[35]
 Article 26 of the Civil Code provides:

"Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind
of his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition."
[36]
 Article 32, Civil Code.

[37]
 Article 723, Civil Code.

[38]
 Article 229, Revised Penal Code.

[39]
 Articles 290-292, Revised Penal Code.

[40]
 Article 280, Revised Penal Code.

[41]
 R.A. 4200.

[42]
 R.A. 1405.

[43]
 R.A. 8293.

[44]
 Section 24, Rule 130 [C], Revised Rules on Evidence.

[45]
 "Biometry," Dorland's Illustrated Medical Dictionary, 24th ed. [1965]. "Biometry" or
"biometrics" is literally, the measurement of living things; but it is generally used to
mean the application of mathematics to biology. The term is now largely obsolete as a
biological science since mathematical or statistical work is an integral part of most
biological disciplines (The Dictionary of Science [1993]).

[46]
"Biometric Identification," http://www.afmc.wpafb.af. mil/=organizations/HQ-
AFMC/LG/LSO/LOA/bio.html; see also "Biometrics Explained- Section-1,"
http://www.ncsa.com/services/consortia/cbdc/sec1.html.

[47]
 Id.

[48]
 Id.

[49]
 Or in microchips of smart cards and magnetic strips of bank cards.

[50]
 "Privacy at Risk, Finger-scanning for Ideology and Profit" [1998],
file:///DI/commentary.html

[51]
 "Biometric Identification," http://www.afmc.wpafb.af.mil/organizations/HQ-
AFMC/LG/LSO/LOA/bio.html

[52]
 "The Libertarian Library: Facing Up to Biometrics," The Mouse Monitor, The
International Journal of Bureau-Rat Control [1998],
http://www.cyberhaven.com/libertarian/biomet.html.

[53]
 Id. The thermogram is so accurate that it can tell identical twins apart and cannot be
fooled by cosmetic surgery or disguises, including facial hair.

[54]
 "An updated national population register will provide a suitable base for all types of
planning and programming of government facilities and services" (Memorandum of the
Solicitor General, p. 20, Rollo, p. 210).

[55]
 Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law
Review, vol. 135: 707, 717 [March 1985].

[56]
 Sloan, I. Law of Privacy Rights in a Technological Society, p. 6 [1986].

[57]
 Respondent GSIS, through counsel, claims that the basic information shall be limited
to the individual's full name, place of birth, date of birth, photograph, signature and
thumbmark (Comment of Respondent GSIS, p. 6, Rollo, p. 101).

[58]
 Otani, K. "Information Security in the Network Age," 70 Philippine Law Journal, 1,
[1995]
9  .

[59]
 Cortes, I., The Constitutional Foundations of Privacy, p. 12 (1970).

[60]
 Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law
Review, vol. 135: 707, 740 [March 1987].

[61]
 Ibid., p. 718.

[62]
 The right to control the collection, maintenance, use, and dissemination of data
about oneself is called "informational privacy" (Hancock, G., "California's Privacy Act:
Controlling Government's Use of Information? 32 Stanford Law Review no. 5, p. 1001
[May 1980]. The right to make personal decisions or conduct personal activities without
intrusion, observation or interference is called "autonomy privacy" (Hill v. NCAA, 865 P.
2d 633, 652-654 [Cal. 1994].

[63]
 Hosch, "The Interest in Limiting the Disclosure of Personal Information: A
Constitutional Analysis," Vanderbilt Law Review vol. 36: 139, 142 [Jan. 1983].

[64]
 Miller, "Personal Privacy in the Computer Age, The Challenge of a New Technology in
an Information-Oriented Society," 67 Michigan Law Review 1091, 1119 [1969]; see also
Cortes, supra, at 13.

[65]
 Cortes, I. The Constitutional Foundation Foundation of Privacy, p.12 [1970].

[66]
 Id.

[67]
 Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]; see the decision and Justice Harlan's
concurring opinion in Katz v. United States, 389 U.S. 347, 353, 361, 19 L. ed. 2d 576, 583,
587-589 [1967]; see also Southard, "Individual Privacy and Governmental Efficiency:
Technology's Effect on the Government's Ability to Gather, Store, and Distribute
Information" (Computer/Law Journal, vol. IX, pp. 359, 367, note 63 [1989]).

[68]
 Kennedy, "Note: Emasculating a State's Constitutional Right to Privacy: The California
Supreme Court's Decision in Hill v. NCAA," Temple Law Review, vol. 68: 1497, 1517 [1995].
[69]
 Id.

[70]
 Southard, supra, at 369.

[71]
 Id; see also Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty
Beyond the Electronic Frontier," Keynote Address at the First Conference on Computers,
Freedom and Privacy, at Jim Warren & Computer Professionals for Social
Responsibility [1991].

[72]
 As one author has observed, previously, one could take steps to ensure an
expectation of privacy in a private place, e.g., locking of doors and closing of curtains.
Because advances in surveillance technology have made these precautions meaningless,
the expectation of the privacy they offer is no longer justifiable and reasonable--
Southard, supra, at 369.

[73]
 Section 4, Commonwealth Act No. 591 [1940].

[74]
 Sections 24 [c] and 28 [e], R.A. 1161, as amended.

[75]
 Citing Morfe v. Mutuc, 22 SCRA 424, 445 [1968].

[76]
 Comment of the Solicitor General, p. 16, Rollo, p. 75.

[77]
 Op. cit., note 76.

[78]
 Id., at 435.

[79]
 429 U.S. 589, 51 L ed. 2d 64 [1977].

[80]
 Some of the patients were children whose parents feared would be stigmatized by
the State's central filing system.

[81]
 Sloan, Law of Privacy Rights in a Technological Society, p. 4 [1986].

[82]
 Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the
Government's Ability to Gather, Store, and Distribute Information," IX Computer/Law
Journal 359, 360 [1989].

[83]
 The Internet is a decentralized network interconnected by the TCP/IP protocol. The
Net was started as a military network ARPANET in 1969 by the US Department of
Defense for the purpose of networking main frame computers to prepare against missile
weapons. It opened to public research organizations and universities in 1983 and has
been interconnected with commercial networks since 1990 (Kazuko Otani, "Information
Security in the Network Age," Philippine Law Journal, vol. 70: 1, 2 [1995]).

[84]
 Cyberspace is a place located in no particular geographical location but available to
anyone, anywhere in the world, with access to the internet (Darrel Menthe, "Jurisdiction
in Cyberspace: A Theory of International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April 23,
1998), .
[85]
 Southard, supra, at 361-362

[86]
 Id; White v. Davis, 533 P. 2d 222 [Cal. 1975]; City of Sta. Barbara v. Adamson, 610 P.
2d 436 [Cal. 1980]. In his concurring opinion in Whalen v. Roe, Justice Brennan stated
that a statute that deprives an individual of his privacy is not unconstitutional only if it
was necessary to promote a compelling state interest (429 U.S. 589, 606-607, 51 L. ed.
2d 64, 77- 78).

[87]
 Morfe v. Mutuc, supra, at 444-445 citing Emerson, "Nine Justices in Search of a
Doctrine," 64 Michigan Law Review 219, 229 [1965].

[88]
 See Shils, "Privacy: Its Constitution and Vicissitudes," Law and Contemporary
Problems, vol. 31, pp. 301-303 [1966].

[89]
 Harry Kalvin, Jr., "The Problems of Privacy in the Year 2000," Daedalus, vol. 96, pp.
876-879 [1967].

DISSENTING OPINION

KAPUNAN, J.:

The pioneering efforts of the executive to adopt a national computerized identification

reference system has met fierce opposition. It has spun dark predictions of sinister
government ploys to tamper with the citizen’s right to privacy and ominous forecasts of
a return to authoritarianism. Lost in the uproar, however, is the simple fact that there is
nothing in the whole breadth and length of Administrative Order No. 308 that suggests
a taint of constitutional infirmity.

A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:

ADMINISTRATIVE ORDER NO. 308

ADOPTION OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security providers
and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security and reduce, if not totally eradicate,
fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and
social security providing agencies and other government instrumentalities is required to
achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby direct the following:

SECTION 1. Establishment of a National Computerized Identification Reference System.

A decentralized Identification Reference System among the key basic services and social
security providers is hereby established.

SEC. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee

(IACC) to draw-up the implementing guidelines and oversee the implementation of the
System is hereby created, chaired by the Executive Secretary, with the following as
members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
Managing Director, National Computer Center

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as

secretariat to the IACC and as such shall provide administrative and technical support to
the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by

the NSO shall serve as the common reference number to establish a linkage among
concerned agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.

Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press

Secretary, in coordination with the National Statistics Office, the GSIS and SSS as lead
agencies and other concerned agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness of the importance and
use of the PRN and the Social Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.

SEC. 7. Submission of Regular Reports.  The NSO, GSIS and SSS shall submit regular
reports to the Office of the President, through the IACC, on the status of
implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:

A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE

SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE

IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A

SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.

The National Computerized Identification Reference System, to which the NSO, GSIS and
SSS are linked as lead members of the IACC is intended to establish uniform standards
for ID cards issued by key government agencies (like the SSS)[1] for the “efficient
identification of persons.”[2] Under the new system, only one reliable and tamper-proof
I.D. need be presented by the cardholder instead of several identification papers such as
passports and driver’s license,[3] to able to transact with government agencies. The
improved ID can be used to facilitate public transactions such as:

1.        Payment of SSS and GSIS benefits

2.        Applications for driver’s license, BIR TIN, passport, marriage license, death
certificate, NBI and police clearances, and business permits
3.        Availment of Medicare Services in hospitals
4.        Availment of welfare services
5.        Application for work/employment
6.       Pre-requisite for voter’s ID.[4]
The card may also be used for private transactions such as:

1.        Opening of bank accounts

2.        Encashment of checks
3.        Applications for loans, credit cards, water, power, telephones, pagers, etc.
4.        Purchase of stocks
5.        Application for work/employment
6.        Insurance claims
7.       Receipt of payments, checks, letters, valuables, etc.[5]

The new identification system would tremendously improve and uplift public service in
our country to the benefit of Filipino citizens and resident aliens. It would promote,
facilitate and speed up legitimate transactions with government offices as well as with
private and business entities. Experience tells us of the constant delays and
inconveniences the public has to suffer in availing of basic public services and social
security benefits because of inefficient and not too reliable means of identification of
the beneficiaries.

Thus, in the “Primer on the Social Security Card and Administrative Order No. 308”
issued by the SSS, a lead agency in the implementation of the said order, the following
salient features are mentioned:

1.       A.O. 308 merely establishes the standards for I.D. cards issued by key government
agencies such as SSS and GSIS.
2.       It does not establish a national I.D. system; neither does it require a national I.D.
card for every person.
3.       The use of the I.D. is voluntary.
4.       The I.D. is not required for delivery of any government service. Everyone has the
right to basic government services as long as he is qualified under existing laws.
5.       The I.D. cannot and will not in any way to be used to prevent one to travel.
6.       There will be no discrimination. Non-holders of the improved I.D. are still entitled
to the same services but will be subjected to the usual rigid identification and
verification beforehand.

I.

The issue that must first be hurdle is: was the issuance of A.O. No. 308 an exercise by
the President of legislative power properly belonging to Congress?

It is not.

The Administrative Code of 1987 has unequivocally vested the President with quasi-
legislative powers in the form of executive orders, administrative orders, proclamations,
memorandum orders and circulars and general or special orders.[6] An administrative
order, like the one under which the new identification system is embodied, has its
peculiar meaning under the 1987 Administrative Code:
SEC. 3. Administrative Orders.--Acts of the President which relate to particular aspects
of governmental operations in pursuance of his duties as administrative hed shall be
promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to

the aforequoted provision precisely because its principal purpose, as expressly stated in
the order, is to provide the people with “the facility to conveniently transact business”
with the various government agencies providing basic services. Being the
“administrative head,” it is unquestionably the responsibility of the President to find
ways and means to improve the government bureaucracy, and make it more
professional, efficient and reliable, specially those government agencies and
instrumentalities which provide basic services and which the citizenry constantly
transact with, like the Government Service Insurance System (GSIS), Social Security
System (SSS) and National Statistics Office (NSO). The national computerized ID system
is one such advancement. To emphasize, the new identification reference system is
created to streamline the bureaucracy, cut the red tape and ultimately achieve
administrative efficiency. The project, therefore, relates to, is an appropriate subject
and falls squarely within the ambit of the Chief Executive’s administrative power under
which, in order to successfully carry out his administrative duties, he has been granted
by law quasi-legislative powers, quoted above.

Understandably, strict adherence to the doctrine of separation of powers spawns

differences of opinion. For we cannot divide the branches of government into water-
tight compartments. Even if such is possible, it is neither desirable nor feasible. Bernard
Schwartz, in his work Administrative Law, A Casebook, thus states:

To be sure, if we think of the separation of powers as carrying out the distinction

between legislation and administration with mathematical precision and as dividing the
branches of government into watertight compartments, we would probably have to
conclude that any exercise of lawmaking authority by an agency is automatically invalid.
Such a rigorous application of the constitutional doctrine is neither desirable not
feasible; the only absolute separation that has ever been possible was that in the
theoretical writings of a Montesquieu, who looked across at foggy England from his
sunny Gascon vineyards and completely misconstrued what he saw.[7]

A mingling of powers among the three branches of government is not a novel concept.
This blending of powers has become unnecessary to properly address the complexities
brought about by a rapidly developing society and which the traditional branches of
government have difficulty coping with.[8]

It has been said that:

The true meaning of the general doctrine of the separation of powers seems to be that
the whole power of one department should not be exercised by the same hands which
possess the whole power of either of the other departments, and that no one
department ought to possess directly or indirectly an overruling influence over the
others. And it has been held that this doctrine should be applied only to the powers
which because of their nature are assigned by the constitution itself to one of the
departments exclusively. Hence, it does not necessarily follow that an entire and
complete separation is either desirable or was ever intended, for such a complete
separation would be impracticable if not impossible; there may be- and frequently are-
areas in which executive, legislative, and judicial powers blend or overlap; and many
officers whose duties cannot be exclusively placed under any of these heads.

The courts have perceived the necessity of avoiding a narrow construction of a state
constitutional provision for the division of the powers of the government into three
distinct departments, for it is impractical to view the provision from the standpoint of a
doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical
abstractions and reverts instead to a more pragmatic, flexible, functional approach,
giving recognition to the fact that there may be a certain degree of blending or
admixture of the three powers of the government. Moreover, the doctrine of separation
of powers has never been strictly or rigidly applied, and indeed could not be, to all the
ramifications of state or national governments; government would prove abortive if it
were attempted to follow the policy of separation to the letter.[9]

In any case, A.O. No. 308 was promulgated by the President pursuant to the quasi-
legislative powers expressly granted to him by law and in accordance with his duty as
administrative head. Hence, the contention that the President usurped the legislative
prerogatives of Congress has no firm basis.

II

Having resolved that the President has the authority and prerogative to issue A.O. No.
308, I submit that it is premature for the Court to determine the constitutionality or
unconstitutionality of the National Computerized Identification Reference System.

Basic in constitutional law is the rule that before the court assumes jurisdiction over and
decide constitutional issues, the following requisites must first be satisfied:

1)            there must be an actual case or controversy involving a conflict of rights

susceptible of judicial determination;
2)           the constitutional question must be raised by a proper party;
3)           the constitutional question must be raised at the earliest opportunity; and
4)            the resolution of the constitutional question must be necessary to the
resolution of the case.[10]
In this case, it is evident that the first element is missing. Judicial intervention calls for
an actual case or controversy which is defined as “an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory.”[11] Justice Isagani
A. Cruz further expounds that “(a) justifiable controversy is thus distinguished from a
difference or dispute of a hypothetical or abstract character or from one that is
academic or moot. The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. It must be a real and substantial
controversy admitting of special relief through a decree that is conclusive in character,
as distinguished from an opinion advising what the law would be upon a hypothetical
state of facts….”[12] A.O. No. 308 does not create any concrete or substantial
controversy. It provides the general framework of the National Computerized
Identification Reference System and lays down the basic standards (efficiency,
convenience and prevention of fraudulent transactions) for its creation. But as
manifestly indicated in the subject order, it is the Inter-Agency Coordinating Committee
(IACC) which is tasked to research, study and formulate the guidelines and parameters
for the use of Biometrics Technology and in computer application designs that will
define and give substance to the new system.[13] This petition is, thus, premature
considering that the IACC is still in the process of doing the leg work and has yet to
codify and formalize the details of the new system.

The majority opines that the petition is ripe for adjudication even without the
promulgation of the necessary guidelines in view of the fact that respondents have
begun implementation of A.O. No. 308. The SSS, in particular, has started advertising in
newspapers the invitation to bid for the production of the I.D. cards.[14]

I beg to disagree. It is not the new system itself that is intended to be implemented in
the invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is
not and cannot be used in the I.D. cards as no guidelines therefor have yet been laid
down by the IACC. Before the assailed system can be set up, it is imperative that the
guidelines be issued first.

III

Without the essential guidelines, the principal contention for invalidating the new
identification reference system -- that it is an impermissible encroachment on the
constitutionally recognized right to privacy -- is plainly groundless. There is nothing in
A.O. No. 308 to serve as sufficient basis for a conclusion that the new system to be
evolved violates the right to privacy. Said order simply provides the system’s general
framework. Without the concomitant guidelines, which would spell out in detail how
this new identification system would work, the perceived violation of the right to privacy
amounts to nothing more than mere surmise or speculation.

What has caused much of the hysteria over the National Computerized Identification
Reference System is the possible utilization of Biometrics Technology which refers to the
use of automated matching of physiological or behavioral characteristics to identify a
person that would violated the citizen’s constitutionally protected right to privacy.

The majority opinion has enumerated various forms and methods of Biometrics
Technology which if adopted in the National Computerized Identification Reference
System would seriously threaten the right to privacy. Among which are biocrypt, retinal
scan, artificial nose and thermogram. The majority also points to certain alleged
deficiencies of A.O. No. 308. Thus:
1)   A.O. No. 308 does not specify the particular Biometrics Technology that shall be
used for the new identification system;
2)   The order does not state whether encoding of data is limited to biological
information alone for identification purposes;
3)   There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and
4)   There are no controls to guard against leakage of information, thus heightening the
potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology and
its alleged, yet unfounded “far-reaching effects.”

There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods
of the Biometrics Technology that may pose danger to the right of privacy will be
adopted.

The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the “WHEREASES” and body of the order, namely, the
need to provide citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government
instrumentalities ; the computerized system is intended to properly and efficiently
identify persons seeking basic services or social security and reduce, if not totally
eradicate fraudulent transactions and misrepresentation; the national identification
reference system is established among the key basic services and social security
providers; and finally, the IACC Secretariat shall coordinate with different Social Security
and Services Agencies to establish the standards in the use of Biometrics Technology.
Consequently, the choice of the particular form and extent of Biometrics Technology
that will be applied and the parameters for its use (as will be defined in the guidelines)
will necessarily and locally be guided, limited and circumscribed by the afore-stated
standards. The fear entertained by the majority on the potential dangers of this new
technology is thus securedly allayed by the specific limitations set by the above-
mentioned standards. More than this, the right to privacy is well-ensconced in and
directly protected by various provisions of the Bill of Rights, the Civil Code, the Revised
Penal Code, and certain special laws, all so painstakingly and resourcefully catalogued in
the majority opinion. Many of these laws provide penalties for their violation in the
form of imprisonment, fines, or damages. These laws will serve as powerful deterrents
not only in the establishment of any administrative rule that will violate the
constitutionally protected right to privacy, but also to would-be transgressors of such
right.

Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe.[15] In that
case, a New York statute was challenged for requiring physicians to identify patients
obtaining prescription drugs of the statute’s “Schedule II” category (a class of drugs
having a potential for abuse and a recognized medical use) so the names and addresses
of the prescription drug patients can be recorded in a centralized computer file
maintained by the New York State Department of Health. Some patients regularly
receiving prescription for “Schedule II” drugs and doctors who prescribed such drugs
brought an action questioning the validity of the statute on the ground that it violated
the plaintiff’s constitutionally protected rights of privacy.

In a unanimous decision, the US Supreme Court sustained the validity of the statute on
the ground that the patient identification requirement is a reasonable exercise of the
State”s broad police powers. The Court also held that there is no support in the record
for an assumption that the security provisions of the statute will be administered
improperly. Finally, the Court opined that the remote possibility that judicial supervision
of the evidentiary use of particular items of stored information will not provide
adequate protection against unwarranted disclosures is not a sufficient reason for
invalidating the patient-identification program.

To be sure, there is always a possibility of an unwarranted disclosure of confidential

matters enomously accumulated in computerized data banks and in government
records relating to taxes, public health, social security benefits, military affairs, and
similar matters. But as previously pointed out, we have a sufficient number of laws
prohibiting and punishing any such unwarranted disclosures. Anent this matter, the
observation in Whalen vs. Roe is instructive:

x x x. We are not unaware of the threat to privacy implicit in the accumulation of vast
amounts of personal information in computerized data banks or other massive
government files. The collection of taxes, the distribution of welfare and social security
benefits, the supervision of public health, the direction of our Armed Forces and the
enforcement of the criminal laws all require the orderly preservation of great quantities
of information, much of which is personal in character and potentially embarrassing or
harmful if disclosed. The right to collect and use such data for public purposes is
typically accompanied by a concomitant statutory or regulatory duty to avoid
unwarranted disclosures. x x x[16]

The majority laments that as technology advances, the level of reasonably expected
privacy decreases. That may be true. However, courts should tread daintily on the field
of social and economic experimentation lest they impede or obstruct the march of
technology to improve public services just on the basis of an unfounded fear that the
experimentation violates one’s constitutionally protected rights. In the sobering words
of Mr. Justice Brandeis:

To stay experimentation in things social and economic is a grave responsibility. Denial of

the right to experiment may be fraught with serious consequences to the Nation. It is
one of the happy incidents of the federal system that a single courageous State may, if
its citizens choose, serve as a laboratory; and try novel social and economic experiments
without risk to the rest of the country. This Court has the power to prevent an
experiment. We may strike down the statute which embodies it on the ground that, in
our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do
this, because the due process clause has been held by the Court applicable to matters of
substantive law as well as to matters of procedure. But in the exercise of this high
power, we must be ever on our guard, lest we erect our prejudices into legal principles.
If we would guide by the light of reason, we must let out minds to be bold.[17]

Again, the concerns of the majority are premature precisely because there are as
yet no guidelines that will direct the Court and serve as solid basis for determining the
constitutionality of the new identification system. The Court cannot and should not
anticipate the constitutional issues and rule on the basis of guesswork. The guidelines
would, among others, determine the particular biometrics method that would be used
and the specific personal data that would be collected, provide the safeguards (if any)
and supply the details on how this new system is supposed to work. The Court should
not jump the gun on the Executive.

III

On the Issue of funding, the majority submits that Section 6 of A.O. No. 308, which
allows the government agencies included in the new system to obtain funding from
their respective budgets, is unconstitutional for being an illegal transfer of
appropriations.

It is not so. The budget for the national identification system cannot be deemed a
transfer of funds since the same is composed of and will be implemented by the
member government agencies. Moreover, these agencies particularly the GSIS and SSS
have been issuing some form of identification or membership card. The improved ID
cards that will be issued under this new system would just take place of the old
identification cards and budget-wise, the funds that were being used to manufacture
the old ID cards, which are usually accounted for under the “Supplies and Materials”
item of the Government Accounting and Auditing Manual, could now be utilized to fund
the new cards. Hence, what is envisioned is not a transfer of appropriations but a
pooling of funds and resources by the various government agencies involved in the
project.

WHEREFORE, I vote to dismiss the petition.

[1]
 SSS, Primer on the Social Security Card & A.O. No. 308, p. 1.

[2]
 Id., at 2.

[3]
 Ibid.

[4]
 Ibid.

[5]
 Id., at 3.
[6]
 Secs. 2 to 7, Chapter 2, Title I, Book III of the Administrative Code of 1987.

[7]
 Schwartz, Bernard, Administrative Law, a Casebook, Fourth Edition 1994, pp. 78-79.

[8]
 Carlo Cruz, Philippine Administrative Law, 1991 ed., pp. 1-3.

[9]
 16 Am. Jur. 2d, Constitutional Law, Sec. 299. Underscoring supplied.

[10]
 Board of Optometry v. Colet, 260 SCRA 88 (1996).

[11]
 Ibid.

[12]
 Isagani A. Cruz, Philippine Political Law, 1991 ed., p. 235.

[13]
 Sec. 2, A.O. No. 308.

[14]
 Annex E, Petition.

[15]
 429 US 589 (1977).

[16]
 Id., at 77.

[17]
 New State Ice Co. v. Liebmann, 285 US 262 (Dissenting Opinion) cited in Whalen v.
Roe, 249 US 589.

SEPARATE OPINION

MENDOZA, J., dissenting:

My vote is to dismiss the petition in this case.

First. I cannot find anything in the text of Administrative Order No. 308 of the President
of the Philippines that would warrant a declaration that it is violative of the right of
privacy. So far as I can see, all the Administrative Order does is

· establish an Identification Reference System involving the following service agencies of

the government:

º Presidential Management Staff

º National Economic Development Authority

º Department of the Interior and Local Government

º Department of Health

º Government Service Insurance System

º Social Security System

º National Statistics Office

º National Computer Center

· create a committee, composed of the heads of the agencies concerned, to draft rules
for the System;

· direct the use of the Population Reference Number (PRN) generated by the National
Census and Statistics Office as the common reference number to link the participating
agencies into an Identification Reference System, and the adoption by the agencies of
standards in the use of biometrics technology and computer designs; and

· provide for the funding of the System from the budgets of the agencies concerned.
Petitioner argues, however, that “the implementation of A.O. No. 308 will mean that
each and every Filipino and resident will have a file with the government containing, at
the very least, his PRN and physiological biometrics such as, but not limited to, his facial
features, hand geometry, retinal or iris pattern, DNA pattern, fingerprints, voice
characteristics, and signature analysis.”

In support of his contention, petitioner quotes the following publication surfed from the
Internet:
The use of biometrics is the means by which an individual may be conclusively
identified. There are two types of biometric identifiers: Physical and behavioral
characteristics. Physiological biometrics include facial features, hand geometry, retinal
and iris patterns, DNA, and fingerprints. Behavioral characteristics include voice
characteristics and signature analysis.[1]
I do not see how from the bare provisions of the Order, the full text of which is set forth
in the majority opinion, petitioner and the majority can conclude that the Identification
Reference System establishes such comprehensive personal information dossiers that
can destroy individual privacy. So far as the Order provides, all that is contemplated is
an identification system based on data which the government agencies involved have
already been requiring individuals making use of their services to give.

For example, under C.A. No. 591, §2(a) the National Statistics Office collects “by
enumeration, sampling or other methods, statistics and other information concerning
population . . . social and economic institutions, and such other statistics as the
President may direct.” In addition, it is in charge of the administration of the Civil
Register,[2] which means that it keeps records of information concerning the civil status
of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments; (d)
legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations,
and (h) changes of name.[3]

Other statutes giving government agencies the power to require personal information
may be cited. R.A. No. 4136, §23 gives the Land Transportation Office the power to
require applicants for a driver’s license to give information regarding the following: their
full names, date of birth, height, weight, sex, color of eyes, blood type, address, and
right thumbprint;[4] while R.A. No. 8239, §5 gives the Department of Foreign Affairs the
power to require passport applicants to give information concerning their names, place
of birth, date of birth, religious affiliation, marital status, and citizenship.

Justice Romero, tracing the origin of privacy to the attempt of the first man and woman
to cover their nakedness with fig leaves, bemoans the fact that technology and
institutional pressures have threatened our sense of privacy. On the other hand, the
majority would have none of the Identification Reference System “to prevent the
shrinking of the right to privacy, once regarded as ‘the most comprehensive of rights
and the right most valued by civilized men.’”[5] Indeed, techniques such as fingerprinting
or electronic photography in banks have become commonplace. As has been observed,
the teaching hospital has come to be accepted as offering medical services that
compensate for the loss of the isolation of the sickbed; the increased capacity of applied
sciences to utilize more and more kinds of data and the consequent calls for such data
have weakened traditional resistance to disclosure. As the area of relevance, political or
scientific, expands, there is strong psychological pressure to yield some ground of
privacy.[6]

But this is a fact of life to which we must adjust, as long as the intrusion into the domain
of privacy is reasonable. In Morfe v. Mutuc,[7] this Court dealt the coup de grace to
claims of latitudinarian scope for the right of privacy by quoting the pungent remark of
an acute observer of the social scene, Carmen Guerrero-Nakpil:
Privacy? What’s that? There is no precise word for it in Filipino, and as far as I know any
Filipino dialect and there is none because there is no need for it. The concept and
practice of privacy are missing from conventional Filipino life. The Filipino believes that
privacy is an unnecessary imposition, an eccentricity that is barely pardonable or, at
best, an esoteric Western afterthought smacking of legal trickery.[8]
Justice Romero herself says in her separate opinion that the word privacy is not even in
the lexicon of Filipinos.

As to whether the right of privacy is “the most valued right,” we do well to remember
the encomiums paid as well to other constitutional rights. For Professor Zechariah
Chafee, “The writ of habeas corpus is ‘the most important human rights provision in the
fundamental law.’”[9] For Justice Cardozo, on the other hand, freedom of expression “is
the matrix, the indispensable condition, of nearly every other form of freedom.”[10]

The point is that care must be taken in assigning values to constitutional rights for the
purpose of calibrating them on the judicial scale, especially if this means employing
stricter standards of review for regulations alleged to infringe certain rights deemed to
be “most valued by civilized men.”

Indeed, the majority concedes that “the right of privacy does not bar all incursions into
individual privacy. . . [only that such] incursions into the right must be accompanied by
proper safeguards and well-defined standards to prevent unconstitutional
invasions.”[11] In the case of the Identification Reference System, the purpose is to
facilitate the transaction of business with service agencies of the government and to
prevent fraud and misrepresentation. The personal identification of an individual can
facilitate his treatment in any government hospital in case of emergency. On the other
hand, the delivery of material assistance, such as free medicines, can be protected from
fraud or misrepresentation as the absence of a data base makes it possible for
unscrupulous individuals to obtain assistance from more than one government agency.

Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right
of privacy formed by emanations from the several constitutional rights cited by the
majority.[12] The question is whether it violates freedom of thought and of conscience
guaranteed in the following provisions of our Bill of Rights (Art. III):

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.

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 be forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
More specifically, the question is whether the establishment of the Identification
Reference System will not result in the compilation of massive dossiers on individuals
which, beyond their use for identification, can become instruments of thought control.
So far, the text of A.O. No. 308 affords no basis for believing that the data gathered can
be used for such sinister purpose. As already stated, nothing that is not already being
required by the concerned agencies of those making use of their services is required by
the Order in question. The Order simply organizes service agencies of the government
into a System for the purpose of facilitating the identification of persons seeking basic
services and social security. Thus, the whereas clauses of A.O. No. 308 state:

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security providers
and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security and reduce, if not totally eradicate,
fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and
social security providing agencies and other government instrumentalities is required to
achieve such a system;
The application of biometric technology and the standardization of computer designs
can provide service agencies with precise identification of individuals, but what is wrong
with that?

Indeed, A.O. No. 308 is no more than a directive to government agencies which the
President of the Philippines has issued in his capacity as administrative head.[13] It is not
a statute. It confers no right; it imposes no duty; it affords no protection; it
creates no office.[14] It is, as its name indicates, a mere administrative order, the precise
nature of which is given in the following excerpt from the decision in the early case of
Olsen & Co. v. Herstein:[15]

[It] is nothing more or less than a command from a superior to an inferior. It

creates no relation except between the official who issues it and the official who
receives it. Such orders, whether executive or departmental, have for their object simply
the efficient and economical administration of the affairs of the department to which or
in which they are issued in accordance with the law governing the subject-matter. They
are administrative in their nature and do not pass beyond the limits of the department
to which they are directed or in which they are published, and, therefore,
create no rights in third persons. They are based on, and are the product of, a
relationship in which power is their source and obedience their object. Disobedience to
or deviation from such an order can be punished only by the power which issued it; and,
if that power fails to administer the corrective, then the disobedience goes unpunished.
In that relationship no third person or official may intervene, not even the courts. Such
orders may be very temporary, they being subject to instant revocation or modification
by the power which published them. Their very nature, as determined by the
relationship which produced them, demonstrates clearly the impossibility of any other
person enforcing them except the one who created them. An attempt on the part of the
courts to enforce such orders would result not only in confusion but, substantially, in
departmental anarchy also.[16]
Third. There is no basis for believing that, beyond the identification of individuals, the
System will be used for illegal purposes. Nor are sanctions lacking for the unauthorized
use or disclosure of information gathered by the various agencies constituting the
System. For example, as the Solicitor General points out, C.A. No. 591, §4 penalizes the
unauthorized use or disclosure of data furnished the NSO with a fine of not more than
P600.00 or imprisonment for not more than six months or both.

At all events, at this stage, it is premature to pass on the claim that the Identification
Reference System can be used for the purpose of compiling massive dossiers on
individuals that can be used to curtail basic civil and political rights since, if at all, this
can only be provided in the implementing rules and regulations which have yet to be
promulgated. We have already stated that A.O. No. 308 is not a statute. Even in the case
of statutes, however, where implementing rules are necessary to put them into effect, it
has been held that an attack on their constitutionality would be premature.[17] As Edgar
in King Lear puts it, “Ripeness is all.”[18] For, to borrow some more Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos’d.[19]
That, more than any doctrine of constitutional law I can think of, succinctly expresses
the rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.

Of special relevance to this case is Laird v. Tatum.[20] There, a class suit was brought
seeking declaratory and injunctive relief on the claim that a U.S. Army intelligence
surveillance of civilian political activity having “a potential for civil disorder” exercised “a
present inhibiting effect on [respondents’] full expression and utilization of their First
Amendment rights.” In holding the case nonjusticiable, the U.S. Supreme Court, in an
opinion by Chief Justice Burger, said:[21]

In recent years this Court has found in a number of cases that constitutional violations
may arise from the deterrent, or “chilling,” effect of governmental regulations that fall
short of a direct prohibition against the exercise of First Amendment rights. [Citation of
cases omitted] In none of these cases, however, did the chilling effect arise merely from
the individual’s knowledge that a governmental agency was engaged in certain activities
or from the individual’s concomitant fear that, armed with the fruits of those activities,
the agency might in the future take some other and additional action detrimental to
that individual. Rather, in each of these cases, the challenged exercise of governmental
power was regulatory, proscriptive, or compulsory in nature, and the complainant was
either presently or prospectively subject to the regulations, proscriptions, or
compulsions that he was challenging. . . .

[T]hese decisions have in no way eroded the “established principle that to entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he was sustained or is immediately in danger of
sustaining a direct injury as the result of that action. . . .”

The respondents do not meet this test; [the] alleged “chilling” effect may perhaps be
seen as arising from respondents’ perception of the system as inappropriate to the
Army’s role under our form of government, or as arising from respondents’ beliefs that
it is inherently dangerous for the military to be concerned with activities in the civilian
sector, or as arising from respondents’ less generalized yet speculative
apprehensiveness that the Army may at some future date misuse the information in
some way that would cause direct harm to respondents. Allegations of a subjective
“chill” are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm; “the federal courts established pursuant to Article III of
the Constitution do not render advisory opinions.” United Public Workers v. Mitchell,
330 US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947).

Fourth. Given the fact that no right of privacy is involved in this case and that any
objection to the Identification Reference System on the ground that it violates freedom
of thought is premature, speculative, or conjectural pending the issuance of the
implementing rules, it is clear that petitioner Blas F. Ople has no cause of action and,
therefore, no standing to bring this action. Indeed, although he assails A.O. No. 308 on
the ground that it violates the right of privacy, he claims no personal injury suffered as a
result of the Order in question. Instead, he says he is bringing this action as taxpayer,
Senator, and member of the Government Service Insurance System.

Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No.

308 does not involve the exercise of the taxing or spending power of the government.

Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an
interest sufficient to enable him to litigate a constitutional question. Petitioner claims
that in providing that the funds necessary for implementing the System shall be taken
from the budgets of the concerned agencies, A.O. No. 308 violates Art. VI, §25(5) which
provides:

No law shall be passed authorizing any transfer of appropriations; however, the

President, the President of the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may,
by law, be authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations.

But, as the Solicitor General states:

Petitioner’s argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support from the
national government; and two, that the GAA is the only law whereby public funds are
appropriated. Both assumptions are wrong.

The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the contributions of
their members are sufficient to finance their expenses. One would be hard pressed to
find in the GAA an appropriation of funds to the SSS and the GSIS.

Furthermore, their respective charters authorize the SSS and the GSIS to disburse their
funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146 [1977], as
amended, Sec. 29) without the need for a separate appropriation from the Congress.

Nor as Senator can petitioner claim standing since no power of Congress is alleged to

have been impaired by the Administrative Order in question.[22] As already stated, in
issuing A.O. No. 308, the President did not exercise the legislative power vested by the
Constitution in Congress. He acted on the basis of his own powers as administrative
head of the government, as distinguished from his capacity as the Executive. Dean Sinco
elucidates the crucial distinction thus:

The Constitution of the Philippines makes the President not only the executive but also
the administrative head of the government. . . . Executive power refers to the legal and
political function of the President involving the exercise of discretion. Administrative
power, on the other hand, concerns itself with the work of applying policies and
enforcing orders as determined by proper governmental organs. These two functions
are often confused by the public; but they are distinct from each other. The President as
the executive authority has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. As administrative head, his duty is to
see that every government office is managed and maintained properly by the persons in
charge of it in accordance with pertinent laws and regulations.

. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the executive of
the government, enabling him to comply more effectively with his constitutional duty to
enforce the laws. It enables him to fix a uniform standard of administrative efficiency
and to check the official conduct of his agents. The decisions of all the officers within his
department are subject to his power of revision, either on his own motion or on the
appeal of some individual who might deem himself aggrieved by the action of an
administrative official. In case of serious dereliction of duty, he may suspend or remove
the officials concerned.[23]

For the foregoing reasons, the petition should be DISMISSED.

[1]
 “Congress Poised To Mandate Government Registration and Tracking of All
Americans,” Privacy International. February 1996; IDCARD.HTM at  (emphasis by
petitioner).

[2]
 C.A. No. 591, §1(f).

[3]
 Act No. 3753, §1.

[4]
 R.A. No. 4136, §23.

[5]
 Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 438, 478 (1928).

[6]
 Paul A. Freund, Privacy: One Concept or Many, in Privacy 188 (R. Pennock and J.
Chapman, eds., 1971).

[7]
 22 SCRA 424 (1968).

[8]
 Id., at 445, n. 66.

[9]
 Zechariah Chafee, The Most Important Human Right in the Constitution, 32 Boston
Univ. Law Rev. 143 (1947), quoted in Gumabon v. Director of Prisons, 37 SCRA 420, 423
(1971) (per Fernando, J.).

[10]
 Palko v. Connecticut, 302 U.S. 319, 327, 82 L.Ed. 288, 293 (1937).

[11]
 Majority Opinion, pp. 30-31.

[12]
 The majority cites Art. III, §§1, 2, 6, 8, and 17 of the Constitution.

[13]
 Administrative Code of 1987, Bk III, Tit I, Ch. I, §3 provides:

SEC. 3. Administrative Orders. - Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders.

[14]
 See Norton v. Shelby County, 118 U.S. 425, 442, 30 L.Ed. 178, 186 (1886).

[15]
 32 Phil. 520 (1915) (emphasis added).

[16]
 Id., at 532.

[17]
 Garcia v. Executive Secretary, 204 SCRA 516 (1991).

[18]
 King Lear, Act V, Sc. ii, line 9.

[19]
 Hamlet, Act I, Sc. iii, lines 41-42.

[20]
 408 U.S. 1, 33 L.Ed.2d 154 (1972).

[21]
 Id., 408 U.S. at 13-14, 33 L.Ed.2d at 163-164.
[22]
 Philconsa v. Enriquez, 235 SCRA 506 (1994); Gonzales v. Macaraig, 191 SCRA 452
(1990); Raines v. Byrd, No. 96-1671, June 26, 1997 (Legislators whose votes have been
sufficient to defeat (or enact) a specific legislative act have standing to sue if that
legislative action goes into effect (or does not go into effect), on the ground that their
votes have been completely nullified.”)

[23]
 Vicente G. Sinco, Philippine Political Law 234-235 (11th ed., 1962) (emphasis added).

SEPARATE OPINION

PANGANIBAN, J.:

I concur only in the result and only on the ground that an executive issuance is not
legally sufficient to establish an all-encompassing computerized system of identification
in the country. The subject matter contained in AO 308 is beyond the powers of the
President to regulate without a legislative enactment.

I reserve judgment on the issue of whether a national ID system is an infringement of

the constitutional right to privacy or of the freedom of thought until after Congress
passes, if ever, a law to this effect. Only then, and upon the filing of a proper petition,
may the provisions of the statute be scrutinized by the judiciary to determine their
constitutional foundation. Until such time, the issue is premature; and any decision
thereon, speculative and academic.[1]

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and
Mendoza on the constitutional right to privacy and freedom of thought may still become
useful guides to our lawmakers, when and if Congress should deliberate on a bill
establishing a national identification system.

Let it be noted that this Court, as shown by the voting of the justices, has not definitively
ruled on these points. The voting is decisive only on the need for the appropriate
legislation, and it is only on this ground that the petition is granted by this Court.

[1]
 Basic is the doctrine that constitutional issues should not be used to decide a
controversy, if there are other available grounds, as in this case. (See Justice Isagani
Cruz, Constitutional Law, 1995 ed., pp. 29-31.)

SEPARATE OPINION

ROMERO, J.:

What marks off a man from a beast?

Aside from the distinguishing physical characteristics, man is a rational being, one who is
endowed with intellect which allows him to apply reasoned judgment to problems at
hand; he has the innate spiritual faculty which can tell, not only what is right but, as
well, what is moral and ethical. Because of his sensibilities, emotions and feelings, he
likewise possesses a sense of shame. In varying degrees as dictated by diverse cultures,
he erects a wall between himself and the outside world wherein he can retreat in
solitude, protecting himself from prying eyes and ears and their extensions, whether
from individuals, or much later, from authoritarian intrusions.

Piercing through the mists of time, we find the original Man and Woman defying the
injunction of God by eating of the forbidden fruit in the Garden. And when their eyes
were "opened," forthwith "they sewed fig leaves together, and made themselves
aprons."[1] Down the corridors of time, we find man fashioning "fig leaves" of sorts or
setting up figurative walls, the better to insulate themselves from the rest of humanity.

Such vague stirrings of the desire "to be left alone," considered "anti-social" by some,
led to the development of the concept of the "privacy," unheard of among beasts.
Different branches of science, have made their own studies of this craving of the human
spirit - psychological, anthropological, sociological and philosophical, with the legal
finally giving its imprimatur by elevating it to the status of right, specifically a private
right.

Initially recognized as a aspect of tort law, it created giant waves in legal circles with the
publication in the Harvard Law Review[2] of the trail-blazing article, "The Right to
Privacy," by Samuel d. Warren and Louis D. Brandeis.

Whether viewed as a personal or a property right, it found its way in Philippine

Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be
said to provide a fertile field for the burgeoning of said right. In fact, or lexicographers
have yet to coin a word for it in the Filipino language. Customs and practices, being what
they have always been, Filipinos think it perfectly natural and in good taste to inquire
into each other's intimate affairs.

One has only to sit through a televised talk show to be convinced that what passes for
wholesome entertainment is actually an invasion into one's private life, leaving the
interviewee embarrassed and outraged by turns.

With the overarching influence of common law and the recent advent of the
Information Age with its high-tech devices, the right to privacy has expanded to
embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct
transplant from that of the United States, contains in essence facets of the right to
privacy which constitute limitations on the far-reaching powers of government.

So terrifying are the possibilities of a law such as Administrative Order No. 308 in making
inroads into the private lives of the citizens, a virtual Big Brother looking over our
shoulders, that it must, without delay, be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.

I, therefore, VOTE for the nullification of A.O. No. 308.

[1]
 3 Genesis 7.

[2]
 4 Harvard Law Review, 193-220 (1890).

SEPARATE OPINION

VITUG, J.:

One can appreciate the concern expressed by my esteemed colleague, Mr. Justice
Reynato S. Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the
issuance of Administrative Order No. 308 by the President of the Philippines and the
dangers its implementation could bring. I find it hard, nevertheless, to peremptorily
assume at this time that the administrative order will be misused and to thereby ignore
the possible benefits that can be derived from, or the merits of, a nationwide
computerized identification reference system. The great strides and swifts advances in
technology render it inescapable that one day we will, at all events, have to face up with
the reality of seeing extremely sophisticated methods of personal identification and any
attempt to stop the inevitable may either be short-lived or even futile. The imperatives, I
believes, would instead be to now install specific safeguards and control measures that
may be calculated best to ward-off probable ill effects of any such device. Here, it may
be apropos to recall the pronouncement of this Court in People vs. Nazario[1] that -

"As a rule, statute or [an] act may be said to be vague when it lacks comprehensible
standards that men 'of common intelligence must necessarily guess at its meaning and
differ as to its application.' It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of Government muscle."[2]
Administrative Order No. 308 appears to be so extensively drawn that could, indeed,
allow unbridled options to become available to its implementors beyond the reasonable
comfort of the citizens and of residents alike.

Prescinding from the foregoing, and most importantly to this instance, the subject
covered by the questioned administrative order can have far-reaching consequences
that can tell on all individuals, their liberty and privacy, that, to my mind, should make it
indispensable and appropriate to have the matter specifically addressed by the Congress
of the Philippines, the policy-making body of our government, to which the task should
initially belong and to which the authority to formulate and promulgate that policy is
constitutionally lodged.

WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an
undue and impermissible exercise of legislative power by the Executive.

[1]
 165 SCRA 186.

[2]
 At p. 195. 
 Source: Supreme Court E-Library | Date created: October 01, 2014
This page was dynamically generated by the E-Library Content Management System

Supreme Court E-Library

2. Jose Jesus M. Desini, Jr., et al., The Secretary of Justice, et al., G.R. No.
203335, February 11, 2014

727 Phil. 28
 EN BANC

[ G.R. No. 203335, February 18, 2014 ]

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
AND ERNESTO SONIDO, JR., PETITIONERS, VS. THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE AND THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

[G.R. No. 203299]

LOUIS “BAROK” C. BIRAOGO, PETITIONER, VS. NATIONAL BUREAU OF INVESTIGATION

AND PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203306]ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN

MOVEMENT, INC., JERRY S. YAP, BERTENI “TOTO” CAUSING, HERNANI Q. CUARE,
PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN
CASTRO, ET AL., PETITIONERS, VS. OFFICE OF THE PRESIDENT, REPRESENTED BY
PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE PHILIPPINES, AND HOUSE
OF REPRESENTATIVES, RESPONDENTS.

[G.R. No. 203359]

SENATOR TEOFISTO DL GUINGONA III, PETITIONER, VS. EXECUTIVE SECRETARY, THE

SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

[G.R. No. 203378]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H.

HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, PETITIONERS, VS.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE
NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, RESPONDENTS.

[G.R. No. 203391]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL.,
PETITIONERS, VS. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY
AND ALTER-EGO OF PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER
CAPACITY AS SECRETARY OF JUSTICE, RESPONDENTS.

[G.R. No. 203407]

 BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,
NATIONAL ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS
OF THE PHILIPPINES, ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO,
CRISTINA E. PALABAY, SECRETARY GENERAL OF KARAPATAN, FERDINAND R. GAITE,
CHAIRPERSON OF COURAGE, JOEL B. MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS
PARTY-LIST, LANA R. LINABAN, SECRETARY GENERAL GABRIELA WOMEN’S PARTY,
ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA MATIBAG, PETITIONERS, VS.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, SECRETARY OF THE DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE,
EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, NONNATUS CAESAR R. ROJAS, DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, D/GEN. NICANOR A. BARTOLOME, CHIEF OF THE PHILIPPINE
NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. No. 203440]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF
THE ATENEO HUMAN RIGHTS CENTER), PETITIONERS, VS. HONORABLE PAQUITO
OCHOA IN HIS CAPACITY AS EXECUTIVE SECRETARY, HONORABLE LEILA DE LIMA IN
HER CAPACITY AS SECRETARY OF JUSTICE, HONORABLE MANUEL ROXAS IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE DEPARTMENT OF
GOVERNMENT), RESPONDENTS.

[G.R. No. 203453]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-
TO-RA10175/, PETITIONERS, VS. THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND
ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING
UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO. 10175, RESPONDENTS.

[G.R. No. 203454]

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, PETITIONERS, VS. THE HON.
 SECRETARY OF JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

[G.R. No. 203469]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; AND PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; PETITIONERS, VS. HIS
EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY HON. JUAN
PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES,
REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES; HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS
EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF
JUSTICE; HON. LOUIS NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS EXECUTIVE
DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; HON.
NONNATUS CAESAR R. ROJAS, IN HIS CAPACITY AS DIRECTOR, NATIONAL BUREAU OF
INVESTIGATION; AND P/DGEN. NICANOR A. BARTOLOME, IN HIS CAPACITY AS CHIEF,
PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203501]

PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. HIS EXCELLENCY BENIGNO S.

AQUINO III, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; HON. PAQUITO N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE
SECRETARY; HON. LEILA M. DE LIMA, IN HER OFFICIAL CAPACITY AS SECRETARY OF
JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE
DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS
CAESAR R. ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL BUREAU
OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A. BARTOLOME, IN HIS
OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203509]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, PETITIONER, VS. THE

EXECUTIVE SECRETARY PAQUITO OCHOA, JR., RESPONDENT.

[G.R. No. 203515]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D.

ANTIPORDA IN HIS CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY,
PETITIONER, VS. OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT
OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES
 WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, RESPONDENTS.

[G.R. No. 203518]

PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO
LAKAS NG MASA, REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO,
MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG,
ANA ALEXANDRA C. CASTRO, PETITIONERS, VS. THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, RESPONDENTS.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings
from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks,
stock exchanges, trade houses, credit card companies, public utilities, hospitals, and
schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous

and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to
the need of the current generation for greater information and facility of
communication. But all is not well with the system since it could not filter out a number
of persons of ill will who would want to use cyberspace technology for mischiefs and
crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him
that people can read.

And because linking with the internet opens up a user to communications from others,
the ill-motivated can use the cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or defrauding him through false
representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this
reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to
the computer systems and networks of indispensable or highly useful institutions as well
as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has
the duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5,
2013 the Court extended the original 120-day temporary restraining order (TRO) that it
earlier issued on October 9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime

law that regard certain acts as crimes and impose penalties for their commission as well
as provisions that would enable the government to track down and penalize violators.
These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and
362 of the RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of

cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without
right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and should
thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,[1]  useful  in  determining  the constitutionality of laws that tend to target a
class of things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such
interest.[2] Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection.[3]

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable act – accessing the computer
system of another without right. It is a universally condemned conduct.[4]

Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate the
target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to verify its
bookkeeping records.[5]

Besides, a client’s engagement of an ethical hacker requires an agreement between

them as to the extent of the search, the methods to be used, and the systems to be
tested. This is referred to as the “get out of jail free card.”[6] Since the ethical hacker
does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of

cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or

deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally

subject to state regulation, may not be achieved by means that unnecessarily sweep its
subject broadly, thereby invading the area of protected freedoms.[7] But Section 4(a)(3)
does not encroach on these freedoms at all. It simply punishes what essentially is a form
of vandalism,[8] the act of willfully destroying without right the things that belong to
others, in this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect [9] or the fear of possible prosecution that hangs on the heads of citizens
who are minded to step beyond the boundaries of what is proper. But to prevent the
State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.[10] Here, the
chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes
the evil that it seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving
that under no set of circumstances will Section 4(a)(3) be valid.[11] Petitioner has failed to
discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of

cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to
profit, mislead, destroy the reputation, and deprive others from registering the same, if
such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause[12] in that, not being narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named “Julio Gandolfo,” the law would punish for cyber-
squatting both the person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it happens to be his real
name. Petitioners claim that, considering the substantial distinction between the two,
the law should recognize the difference.

But there is no real difference whether he uses “Julio Gandolfo” which happens to be his
real name or use it as a pseudo-name for it is the evil purpose for which he uses the
name that the law condemns. The law is reasonable in penalizing him for acquiring the
domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge
to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of

cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
and to privacy and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures.[13] But the Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,[14] it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the “Zones of
Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon”[15] the relevance of these zones to the right
to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a “constitutional right” and “the right most valued
by civilized men,” but also from our adherence to the Universal Declaration of Human
Rights which mandates that, “no one shall be subjected to arbitrary interference with
his privacy” and “everyone has the right to the protection of the law against such
interference or attacks.”

Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches[16] and seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and correspondence.[17]

In assessing the challenge that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.[18]

The usual identifying information regarding a person includes his name, his citizenship,
his residence address, his contact number, his place and date of birth, the name of his
spouse if any, his occupation, and similar data.[19] The law punishes those who acquire or
use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the right to due process of
law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not
hold water since the specific conducts proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a person
in the news to secure information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft
of identity information must be intended for an illegitimate purpose. Moreover,
acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through
the overt acts of the offender, and it may be presumed from the furtive taking of useful
property pertaining to another, unless special circumstances reveal a different intent on
the part of the perpetrator.[20] As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the
Constitution.[21] They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when done “for favor” in
cyberspace. In common usage, the term “favor” includes “gracious kindness,” “a special
privilege or right granted or conceded,” or “a token of love (as a ribbon) usually worn
conspicuously.”[22] This meaning given to the term “favor” embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These deliberations
show a lack of intent to penalize a “private showing x x x between and among two
private persons x x x although that may be a form of obscenity to some.”[23] The
understanding of those who drew up the cybercrime law is that the element of
“engaging in a business” is necessary to constitute the illegal cybersex.[24] The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor
and consideration. This includes interactive prostitution and pornography, i.e., by
webcam.[25]

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—

is not novel. Article 201 of the RPC punishes “obscene publications and exhibitions and
indecent shows.” The Anti-Trafficking in Persons Act of 2003 penalizes those who
“maintain or hire a person to engage in prostitution or pornography.”[26] The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.[27]

The case of Nogales v. People[28] shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography.[29] The Court weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating
the bounds of obscenity.[30] The Court will not declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the penalty to be imposed shall be (1)
one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of
2009[31] (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents
the government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition of child pornography
already embraces the use of “electronic, mechanical, digital, optical, magnetic or any
other means.” Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is rational basis for such higher penalty.
[32]
 The potential for uncontrolled proliferation of a particular piece of child pornography
when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to
“produce, direct, manufacture or create any form of child pornography”[33] clearly
relates to the prosecution of persons who aid and abet the core offenses that ACPA
seeks to punish.[34] Petitioners are wary that a person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is not criminally liable for producing child
pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality of
Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial

electronic communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa)   The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb)   The commercial electronic communication does not purposely disguise the source
of the electronic message; and

(cc)   The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

The above penalizes the transmission of unsolicited commercial communications, also

known as “spam.” The term “spam” surfaced in early internet chat rooms and
interactive fantasy games. One who repeats the same sentence or comment was said to
be making a “spam.” The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying “Spam, Spam, Spam, and Spam” when reading options from a
menu.[35]
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and
network capacities of internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out
spams enters the recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of
computers, have already been receiving such unsolicited ads by mail. These have never
been outlawed as nuisance since people might have interest in such ads. What matters
is that the recipient has the option of not opening or reading these mail ads. That is true
with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.[36] The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as
well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of

a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be

malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of

writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished
by prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to
form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code[37] and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of “presumed malice”
even when the latest jurisprudence already replaces it with the higher standard of
“actual malice” as a basis for conviction.[38] Petitioners argue that inferring “presumed
malice” from the accused’s defamatory statement by virtue of Article 354 of the penal
code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken
down as unconstitutional for otherwise good jurisprudence requiring “actual malice”
could easily be overturned as the Court has done in Fermin v. People[39] even where the
offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed;
and (d) existence of malice.[40]
There is “actual malice” or malice in fact[41] when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it
was false or not.[42] The reckless disregard standard used here requires a high degree of
awareness of probable falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.[43]

The prosecution bears the burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of absence of actual
malice, even when the statement turns out to be false, is available where the offended
party is a public official or a public figure, as in the cases of Vasquez (a barangay official)
and Borjal (the Executive Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of
“malice” to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full
discussion of public affairs.[44]

Parenthetically, the Court cannot accept the proposition that its ruling
in Fermin disregarded the higher standard of actual malice or malice in fact when it
found Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily, not
only was there malice in law, the article being malicious in itself, but there was also
malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities, when it
modified the penalty of imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove
the presence of malice. The law explicitly presumes its existence (malice in law) from
the defamatory character of the assailed statement.[45] For his defense, the accused
must show that he has a justifiable reason for the defamatory statement even if it was
in fact true.[46]

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act
violate the country’s obligations under the International Covenant of Civil and Political
Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,[47] the United
Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect
that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes
truth as a defense but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is
true, and, moreover, that it was published with good motives and for justifiable ends,
the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall
not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression.[48] Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.[49]

The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes “similar means” for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel were enacted. The culture
associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.

[50]
 In a sense, they are a world apart in terms of quickness of the reader’s reaction to
defamatory statements posted in cyberspace, facilitated by one-click reply options
offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to
defamatory statement posted on the internet constitute aiding and abetting libel, acts
that Section 5 of the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of the
offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of
“netizens,” the multitude that avail themselves of the services of the internet. He points
out that existing laws and jurisprudence sufficiently delineate the meaning of “aiding or
abetting” a crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement agencies in
enforcing the law.[51] The legislature is not required to define every single word
contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws.
When a person aids or abets another in destroying a forest,[52] smuggling merchandise
into the country,[53] or interfering in the peaceful picketing of laborers,[54] his action is
essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and
human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight
is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users.[55] Based on a
recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social
networking.[56] Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.[57]

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch.[58] Users register at
this site, create a personal profile or an open book of who they are, add other users as
friends, and exchange messages, including automatic notifications when they update
their profile.[59] A user can post a statement, a photo, or a video on Facebook, which can
be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons of
preferences on the program’s screen such as “Like,” “Comment,” or “Share.” “Like”
signifies that the reader likes the posting while “Comment” enables him to post online
his feelings or views about the same, such as “This is great!” When a Facebook user
“Shares” a posting, the original “posting” will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service
that enables its users to send and read short text-based messages of up to 140
characters. These are known as “Tweets.” Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text, pictures, links, short
videos, or other media—on the internet. Instead of friends, a Twitter user has
“Followers,” those who subscribe to this particular user’s posts, enabling them to read
the same, and “Following,” those whom this particular user is subscribed to, enabling
him to read their posts. Like Facebook, a Twitter user can make his tweets available only
to his Followers, or to the general public. If a post is available to the public, any Twitter
user can “Retweet” a given posting. Retweeting is just reposting or republishing another
person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer
used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.[60] Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married
public official has an illicit affair with a movie star. Linda, one of Maria’s friends who
sees this post, comments online, “Yes, this is so true! They are so immoral.” Maria’s
original post is then multiplied by her friends and the latter’s friends, and down the line
to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and
Linda, comes across this blog, finds it interesting and so shares the link to this
apparently defamatory blog on her Twitter account. Nena’s “Followers” then “Retweet”
the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original
tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A lot of them even press the
Share button, resulting in the further spread of the original posting into tens, hundreds,
thousands, and greater postings.

The question is: are online postings such as “Liking” an openly defamatory statement,
“Commenting” on it, or “Sharing” it with others, to be regarded as “aiding or abetting?”
In libel in the physical world, if Nestor places on the office bulletin board a small poster
that says, “Armand is a thief!,” he could certainly be charged with libel. If Roger, seeing
the poster, writes on it, “I like this!,” that could not be libel since he did not author the
poster. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that
be libel? No, for he merely expresses agreement with the statement on the poster. He
still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the “Like,”
“Comment,” and “Share” reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding “Friends” or “Followers” in the criminal charge to be filed in
court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a
round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,[61] a case involving the constitutionality of the Communications Decency
Act of 1996. The law prohibited (1) the knowing transmission, by means of a
telecommunications device, of “obscene or indecent” communications to any recipient
under 18 years of age; and (2) the knowing use of an interactive computer service to
send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or
describe, in terms “patently offensive” as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed
and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a
matter of special concern for two reasons. First, the CDA is a content-based regulation
of speech. The vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than
those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great

threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s
burden on protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad news.
Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected
freedoms.[62]

If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement.[63] The terms “aiding or abetting” constitute
broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.[64] Hence, Section 5 of the cybercrime
law that punishes “aiding or abetting” libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections,[65] “we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech.”

In an “as applied” challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground – absence of due process, lack of fair notice,
lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the statute based solely on the violation of
the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.[66]

But this rule admits of exceptions. A petitioner may for instance mount a “facial”
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The rationale for this exception is to counter
the “chilling effect” on protected speech that comes from statutes violating free speech.
A person who does not know whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.[67]

As already stated, the cyberspace is an incomparable, pervasive medium of

communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given “fair notice” or warning as to what is
criminal conduct and what is lawful conduct. When a case is filed, how will the court
ascertain whether or not one netizen’s comment aided and abetted a cybercrime while
another comment did not?

Of course, if the “Comment” does not merely react to the original posting but creates an
altogether new defamatory story against Armand like “He beats his wife and children,”
then that should be considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of defamatory publications.
Make no mistake, libel destroys reputations that society values. Allowed to cascade in
the internet, it will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.

In regard to the crime that targets child pornography, when “Google procures, stores,
and indexes child pornography and facilitates the completion of transactions involving
the dissemination of child pornography,” does this make Google and its users aiders and
abettors in the commission of child pornography crimes?[68] Byars highlights a feature in
the American law on child pornography that the Cybercrimes law lacks—the exemption
of a provider or notably a plain user of interactive computer service from civil liability
for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher

or speaker of any information provided by another information content provider and
cannot be held civilly liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.[69]

When a person replies to a Tweet containing child pornography, he effectively

republishes it whether wittingly or unwittingly. Does this make him a willing accomplice
to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In this
way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.[70] As the source
of this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises

apprehension on the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.[71] In the absence of
legislation tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason
not objectionable. A hacker may for instance have done all that is necessary to illegally
access another party’s computer system but the security employed by the system’s
lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor
is alerted.[72] If Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password could not file a
complaint against him for attempted hacking. But this is not right. The hacker should not
be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.[73] While this may be true with respect to cybercrimes that tend to sneak past
the area of free expression, any attempt to commit the other acts specified in Section
4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors
aiding and abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction
between crimes committed through the use of information and communications
technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims
or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine
that a single set of acts may be prosecuted and penalized simultaneously under two
laws, a special law and the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is
not an essential element of the other.[74] With the exception of the crimes of online libel
and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in fact one and the same offense. Indeed,
the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer
system as another means of publication.[75] Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.[76]

The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPA’s scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s definition of child pornography in fact already covers the
use of “electronic, mechanical, digital, optical, magnetic or any other means.” Thus,
charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in
Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a
maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished
with imprisonment of prision mayor or a fine of not more than Five hundred thousand
pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of
this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or
the “Anti-Child Pornography Act of 2009:” Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3)
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be
punished with imprisonment one (1) degree lower than that of the prescribed penalty
for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but
not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime.[77] Judges and
magistrates can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department. The courts should not
encroach on this prerogative of the lawmaking body.[78]

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due
cause, shall be authorized to collect or record by technical or electronic means traffic
data in real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide opportunities
for official abuse. They claim that data showing where digital messages come from,
what kind they are, and where they are destined need not be incriminating to their
senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the
messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since
a law may require the disclosure of matters normally considered private but then only
upon showing that such requirement has a rational relation to the purpose of the law,
[79]
 that there is a compelling State interest behind the law, and that the provision itself
is narrowly drawn.[80] In assessing regulations affecting privacy rights, courts should
balance the legitimate concerns of the State against constitutional guarantees.[81]

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public good.
[82]
 To do this, it is within the realm of reason that the government should be able to
monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a
part, aims to provide law enforcement authorities with the power they need for
spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting
is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention
on Cybercrimes requires signatory countries to adopt legislative measures to empower
state authorities to collect or record “traffic data, in real time, associated with specified
communications.”[83] And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,[84] transmitting viruses,[85] lasciviously
exhibiting sexual organs or sexual activity for favor or consideration;[86] and producing
child pornography[87] could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from unregistered mobile
internet connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those
who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do
not provide ample safeguards against crossing legal boundaries and invading the
people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in
Morfe v. Mutuc[88] that certain constitutional guarantees work together to create zones
of privacy wherein governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left alone has been
regarded as the beginning of all freedoms.[89]
But that right is not unqualified. In Whalen v. Roe,[90] the United States Supreme Court
classified privacy into two categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those
who oppose government collection or recording of traffic data in real-time seek to
protect.

Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.[91] In
determining whether or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where one claiming the right
must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.[92]

Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners’ challenge to Section 12 applies
to all information and communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices to communicate with
one another. Consequently, the expectation of privacy is to be measured from the
general public’s point of view. Without reasonable expectation of privacy, the right to it
would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication
through a service provider, must of necessity disclose to the latter, a third person, the
traffic data needed for connecting him to the recipient ICT user. For example, an ICT
user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a

way that may be likened to parcels of letters or things that are sent through the posts.
When data is sent from any one source, the content is broken up into packets and
around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is
in the packet (SMS, voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits together with other
packets.[93] The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The packets
travel from one computer system to another where their contents are pieced back
together. Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service
provider’s communication’s system will put his voice message into packets and send
them to the other person’s cellphone where they are refitted together and heard. The
latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when
he puts his call through. He also reveals the cellphone number to the person he calls.
The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,[94] cited by the Solicitor General, the United States Supreme Court
reasoned that telephone users in the ‘70s must realize that they necessarily convey
phone numbers to the telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials should remain private,
such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange
data with one another over cyberspace except through some service providers to whom
they must submit certain traffic data that are needed for a successful cyberspace
communication. The conveyance of this data takes them out of the private sphere,
making the expectation to privacy in regard to them an expectation that society is not
prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random
bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal
patterns of activities which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such
information is likely beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the procedure that Section 12
of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, “with due cause,” to collect or

record by technical or electronic means traffic data in real-time. Petitioners point out
that the phrase “due cause” has no precedent in law or jurisprudence and that whether
there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every
word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction.
But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it
intends for the phrase “due cause.” The Solicitor General suggests that “due cause”
should mean “just reason or motive” and “adherence to a lawful procedure.” But the
Court cannot draw this meaning since Section 12 does not even bother to relate the
collection of data to the probable commission of a particular crime. It just says, “with
due cause,” thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used.
Will the law enforcement agencies use the traffic data to identify the perpetrator of a
cyber attack? Or will it be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection should not disclose identities or
content data, such restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from certain bad elements in
these agencies.

Section 12, of course, limits the collection of traffic data to those “associated with
specified communications.” But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities
to engage in “fishing expedition,” choosing whatever specified communication they
want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic
data “in real time” because it is not possible to get a court warrant that would authorize
the search of what is akin to a “moving vehicle.” But warrantless search is associated
with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the
search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be
better served by providing for more robust safeguards. His bare assurance that law
enforcement authorities will not abuse the provisions of Section 12 is of course not
enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.
[95]

Petitioners also ask that the Court strike down Section 12 for being violative of the void-
for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have
been consistently held by this Court to apply only to free speech cases. But Section 12
on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.

This Court is mindful that advances in technology allow the government and kindred
institutions to monitor individuals and place them under surveillance in ways that have
previously been impractical or even impossible. “All the forces of a technological age x x
x operate to narrow the area of privacy and facilitate intrusions 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.”[96] The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber
information relating to communication services provided by a service provider shall be
preserved for a minimum period of six (6) months from the date of the transaction.
Content data shall be similarly preserved for six (6) months from the date of receipt of
the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by a
service provider is used as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the
order and its compliance.

Petitioners in G.R. 203391[97] claim that Section 13 constitutes an undue deprivation of

the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to
their authors or recipients and are to be considered private communications. But it is
not clear that a service provider has an obligation to indefinitely keep a copy of the
same as they pass its system for the benefit of users. By virtue of Section 13, however,
the law now requires service providers to keep traffic data and subscriber information
relating to communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from receipt of the
order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if
he was so minded. The service provider has never assumed responsibility for their loss
or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers
preserve on orders of law enforcement authorities are not made inaccessible to users by
reason of the issuance of such orders. The process of preserving data will not unduly
hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a

court warrant, shall issue an order requiring any person or service provider to disclose
or submit subscriber’s information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena.

Petitioners’ objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.[98]

Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to carry
out their executive functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise have
the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in
this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium;
and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to protect
and preserve the computer data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but in
no case for a period longer than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established

search and seizure procedures. On its face, however, Section 15 merely enumerates the
duties of law enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been seized by virtue of a
court warrant. The exercise of these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does not appear to supersede existing
search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in

Sections 13 and 15, service providers and law enforcement authorities, as the case may
be, shall immediately and completely destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor
General justifies this as necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous

preservation or examination violates the user’s right against deprivation of property
without due process of law. But, as already stated, it is unclear that the user has a
demandable right to require the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted them preserved, he should have
saved them in his computer when he generated the data or received it. He could also
request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer

data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is

prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the
right against unreasonable searches and seizures. The Solicitor General concedes that
this provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.

Computer data[99] may refer to entire programs or lines of code, including malware, as

well as files that contain texts, images, audio, or video recordings. Without having to go
into a lengthy discussion of property rights in the digital space, it is indisputable that
computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures,
whether while stored in their personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s
papers and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable. Further, it states that no search warrant shall issue
except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot substitute for
judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within constitutional bounds, declare
certain kinds of expression as illegal. But for an executive officer to seize content alleged
to be unprotected without any judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.[100]

Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
Restraints on free speech are generally evaluated on one of or a combination of three
tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule.[101] Section 19, however, merely requires that the data to be
blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable searches
and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof

specifically the orders from law enforcement authorities shall be punished as a violation
of Presidential Decree No. 1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a legislative finding of guilt, without regard
to situations where non-compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree

(P.D.) 1829,[102] Section 20 necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to constitute an offense in and
of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging
from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or
willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by committing any of the following acts:  
x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done “knowingly
or willfully.” There must still be a judicial determination of guilt, during which, as the
Solicitor General assumes, defense and justifications for non-compliance may be raised.
Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created,

within thirty (30) days from the effectivity of this Act, an inter-agency body to be known
as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real
time commission of cybercrime offenses through a computer emergency response team
(CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a
national cybersecurity plan without any sufficient standards or parameters for it to
follow.

In order to determine whether there is undue delegation of legislative power, the Court
has adopted two tests: the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from
running riot.[103]

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. Also, contrary to the position of the
petitioners, the law gave sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches,

actions, training, best practices, assurance and technologies that can be used to protect
cyber environment and organization and user’s assets.[104] This definition serves as the
parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the
law to “prevent and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international cooperation.”[105] This policy is
clearly adopted in the interest of law and order, which has been considered as sufficient
standard.[106] Hence, Sections 24 and 26(a) are likewise valid.

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;
   
b. Section 12 that authorizes the collection or recording of traffic data in real-time;
and
   
c. Section 19 of the same Act that authorizes the Department of Justice to restrict
or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers

to preserve traffic data and subscriber information as well as specified content
data for six months;
 j. Section 14 that authorizes the disclosure of computer data under a court-issued
warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;
   
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
   
o. Section 26(a) that defines the CICC’s Powers and Functions; and
   
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect

to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to
others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of

cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal
Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2)
on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections
4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and
4(c)(4) on online Libel.

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of

Section 7 that authorizes prosecution of the offender under both the Revised Penal
Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic
Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the
proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription,
and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes, JJ.,
concur.
Sereno, C.J., Carpio, and Leonen, JJ., see concurring and dissenting opinion.
Velasco, J., no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., join Justice Brion in all his positions.
Perlas-Bernabe, J., no part.

[1]
 The US Supreme Court first suggested the standard by implication in footnote 4 of
United States v. Carolene Products (304 U.S. 144, 152 n.4 (1938). See Fatal in Theory
and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. Winkler,
A. UCLA School of Law, Public Law & Legal Theory Research Paper Series, Research
Paper No. 06-14, http://ssrn.com/abstract=897360 (last accessed April 10, 2013).

[2]
 Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA
254, 278.

[3]
 White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576
SCRA 416, 437.

[4]
 All 50 states of the United States have passed individual state laws criminalizing
hacking or unauthorized access, http://www.ncsl.org/issues-
research/telecom/computer-hacking-and-unauthorized-access-laws.aspx (last accessed
May 16, 2013). The United States Congress has also passed the Computer Fraud and
Abuse Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest
Convention on Cybercrime considers hacking as an offense against the confidentiality,
integrity and availability of computer data and systems and 29 countries have already
ratified or acceded, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?
NT=185&CM=&DF=&CL=ENG (last accessed May 16, 2013).

[5]
 Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10, 2013).

[6]
 Id. at 774.

[7]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos.
178552, 178554, 178581, 178890, 179157 & 179461, October 5, 2010, 632 SCRA 146,
185.
[8]
 The intentional destruction of property is popularly referred to as vandalism. It
includes behavior such as breaking windows, slashing tires, spray painting a wall with
graffiti, and destroying a computer system through the use of a computer virus,
http://legal-dictionary.thefreedictionary.com/Vandalism (last accessed August 12,
2013).

[9]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
7, at 186; Estrada v. Sandiganbayan, 421 Phil. 290, 354 (2001).

[10]
 Id.

[11]
 Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v. Sandiganbayan.

[12]
 1987 Constitution, Article III, Section 1.

[13]
 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA 189, 204-
205.

[14]
 130 Phil. 415 (1968)

[15]
 535 Phil. 687, 714-715 (2006).

[16]
 Supra note 12, Article II, Section 2.

[17]
 Supra note 12, Article III, Section 3.

[18]
 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon, supra note 15.

[19]
 Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines personal
information as “any information whether recorded in a material form or not, from which
the identity of an individual is apparent or can be reasonably and directly ascertained by
the entity holding the information, or when put together with other information would
directly and certainly identify an individual.”

[20]
 People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.

[21]
 Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).

[22]
 Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last
accessed May 30, 2013).
[23]
 Bicameral Conference Committee, pp. 5-6.

[24]
 Id.

[25]
 Office of the Solicitor General, COMMENT, p. 71.

[26]
 REPUBLIC ACT 9208, Section 4(e).

[27]
 Id., Section 3(c).

[28]
 G.R. No. 191080, November 21, 2011, 660 SCRA 475.

[29]
 REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential Decree 969.

[30]
 Pita v. Court of Appeals, 258-A Phil. 134 (1989).

[31]
 REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY,
PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES.

[32]
 Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA 245,
citing People v. Ventura, 114 Phil. 162, 167 (1962).

[33]
 Supra note 31, Section 4(b).

[34]
 G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp. 34-37.

[35]
 White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist. LEXIS 19152
(W.D. Tex. Mar. 22, 2004).

[36]
 Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health
Care Association of the Philippines v. Duque III, 561 Phil. 387, 449 (2007).

[37]
 Supra note 29, Article 362.

[38]
 Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals, 373 Phil.
238 (1999).

[39]
 573 Phil. 278 (2008).

[40]
 Vasquez v. Court of Appeals, supra note 38.

[41]
 L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed. 2007).
[42]
 Vasquez v. Court of Appeals, supra note 38, citing New York Times v. Sullivan, 376 U.S.
254, 11 L.Ed.2d 686 (1964).

[43]
 Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004).

[44]
 Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos, 37 Phil. 731
(1918).

[45]
 Supra note 41, at 403.

[46]
 Supra note 29, Article 354.

[47]
 Communication 1815/2008.

[48]
 General Comment 34, ICCPR, par. 47.

[49]
 ICCPR, Article 19(2) and (3).

[50]
 Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).

[51]
 Office of the Solicitor General, MEMORANDUM, pp. 69-70.

[52]
 REPUBLIC ACT 3701, Section 1.

[53]
 REPUBLIC ACT 4712, Section 5.

[54]
 LABOR CODE, Article 264.

[55]
 G.R. No. 203440 (Sta. Maria), PETITION, p. 2.

[56]
 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January
14, 2013).

[57]
 http://en.wikipedia.org/wiki/Social_networking_service (last accessed January 14,
2013).

[58]
 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January
14, 2013).

[59]
 http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).

[60]
 G.R. No. 203378 (Adonis) and G.R. No. 203391 (Palatino), CONSOLIDATED
MEMORANDUM, p. 34.
[61]
 521 U.S. 844 (1997).

[62]
 Griswold v. Connecticut, 381 U.S. 479 (1965).

[63]
 G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.

[64]
 Supra note 55, at 33.

[65]
 576 Phil. 357 (2008).

[66]
 Id.

[67]
 Id.

[68]
 A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement “Google,
Inc.: Procurer, Possessor, Distributor, Aider and Abettor in Child Pornography,” 
http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed May 25,
2013).

[69]
 Id., citing 47 U.S.C. 230.

[70]
 Bianca Bosker, Facebook To Share Users' Home Addresses, Phone Numbers With
External Sites, http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-
phone-numbers_n_829459.html (last accessed July 18, 2013).

[71]
 G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes, The Revised
Penal Code: Book 1, 118 (17th ed. 2008).

[72]
 Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking, Email Accounts,
http://columbia-sc.patch.com/groups/police-and-fire/p/man-pleaded-guilty-to-hacking-
usc-website-email-accounts (last accessed July 18, 2013); Peter Ryan, Hackers target
Bureau of Statistics data, http://www.abc.net.au/news/2013-04-26/abs-targeted-by-
hackers/4652758 (last accessed July 18, 2013).

[73]
 Supra note 34, at 32.

[74]
 Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).

[75]
 Office of the Solicitor General, MEMORANDUM, p. 49.

[76]
 Section 21, Article III, 1987 CONSTITUTION: “No person shall be twice put in jeopardy
of punishment for the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another prosecution for the
same act.”

[77]
 Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).

[78]
 People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476,
citing People v. Millora, 252 Phil. 105 (1989).

[79]
 Supra note 14, at 436-437.

[80]
 Ople v. Torres, 354 Phil. 948, 974-975 (1998).

[81]
 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505
Phil. 298, 322 (2005); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

[82]
 SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and
communications industries such as content production, telecommunications,
broadcasting electronic commerce, and data processing, in the nation’s overall social
and economic development. The State also recognizes the importance of providing an
environment conducive to the development, acceleration, and rational application and
exploitation of information and communications technology (ICT) to attain free, easy,
and intelligible access to exchange and/or delivery of information; and the need to
protect and safeguard the integrity of computer, computer and communications
systems, networks, and databases, and the confidentiality, integrity, and availability of
information and data stored therein, from all forms of misuse, abuse, and illegal access
by making punishable under the law such conduct or conducts. In this light, the State
shall adopt sufficient powers to effectively prevent and combat such offenses by
facilitating their detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable international
cooperation.

[83]
 Convention on Cybercrime, Art. 20, opened for signature November 23, 2001, ETS
185.

[84]
 Cybercrime Law, Section 4(a)(1),.

[85]
 Id., Section 4(a)(3)

[86]
 Id., Section 4(c)(1)

[87]
 Id., Section 4(c)(2)

[88]
 Supra note 14.
[89]
 Id. at 433-437.

[90]
 429 U.S. 589 (1977).

[91]
 Id. at 599.

[92]
 Supra note 13, at 206.

[93]
 Jonathan Strickland, How IP Convergence Works,
http://computer.howstuffworks.com/ip-convergence2.htm (last accessed May 10,
2013).

[94]
 442 U.S. 735 (1979).

[95]
 Supra note 80, at 983.

[96]
 Supra note 14, at 437, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich.
Law Rev. 219, 229 (1965).

[97]
 G.R. No. 203391 (Palatino v. Ochoa).

[98]
 Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036, December 7,
2010, 637 SCRA 78, 143; ADMINISTRATIVE CODE of 1987, Book I, Chapter 9, Section 37,
and Book VII, Chapter 1, Section 13.

[99]
 Computer data is defined by R.A. 10175 as follows:

“SEC. 3. Definition of Terms. x x x

xxxx

(e)  Computer data refers to any representation of facts, information, or concepts in a

form suitable for processing in a computer system including a program suitable to cause
a computer system to perform a function and includes electronic documents and/or
electronic data messages whether stored in local computer systems or online.”
[100]
 Pita v. Court of Appeals, supra note 30, at 151.

[101]
 Chavez v. Gonzales, 569 Phil. 155 (2008).

[102]
 Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF
CRIMINAL OFFENDERS.
[103]
 Gerochi v. Department of Energy, 554 Phil. 563 (2007).

[104]
 REPUBLIC ACT 10175, Section 3(k).

[105]
 Supra note 94.

[106]
 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v. Provincial
Board of Mindoro, 39 Phil. 660 (1919).

CONCURRING AND DISSENTING OPINION

SERENO, CJ:

The true role of Constitutional Law is to effect

an equilibrium between authority and liberty
  so that rights are exercised within the
framework of the law and the laws are
enacted with due deference to rights.

   

  Justice Isagani A. Cruz[1]

When the two other branches of government transgress their inherent powers, often
out of a well-intentioned zeal that causes an imbalance between authority and liberty, it
is the Court’s solemn duty to restore the delicate balance that has been upset. This is
the difficult task before us now, involving as it does our power of judicial review over
acts of a coequal branch.

The task is complicated by the context in which this task is to be discharged: a rapidly
evolving information and communications technology, which has been an enormous
force for good as well as for evil. Moreover, the Court is forced to grapple with the
challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore
been applied only to finite physical space. Fortunately, we have the Constitution as our
North Star as we try to navigate carefully the uncharted terrain of cyberspace as the
arena of the conflict between fundamental rights and law enforcement.

I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime

Prevention Act on the real-time collection of traffic data and Section 19 on the
restriction or blocking of access to computer data. I also adopt the ponencia’s
discussion of Sections 12 and 19. I write this Separate Opinion, however, to explain
further why real-time collection of traffic data may be indispensable in certain cases,
as well as to explain how the nature of traffic data per se undercuts any expectation of
privacy in them.
I also concur with the ponencia’s partial invalidation of Section 4(c)(4) on libel insofar
as it purports to create criminal liability on the part of persons who receive a libelous
post and merely react to it; and of Section 7, in so far as it applies to libel.

However, I dissent from the ponencia’s upholding of Section 6 as not unconstitutional

in all its applications. I find Section 6 to be unconstitutional insofar as it applies to
cyberlibel because of its “chilling effect.” Hence, I am writing this Separate Opinion also
to explain my dissent on this issue.

I find the rest of the constitutional challenges not proper for a pre-enforcement
judicial review and therefore dismissible.

I.

THIS COURT MAY EMPLOY A PRE-ENFORCEMENT

JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.

As distinguished from the general notion of judicial power, the power of judicial review
especially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter’s
constitutional powers.[2] It includes the power to resolve cases in which the
constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.[3] This power, first verbalized in the seminal case Marbury v. Madison,[4] has
been exercised by the Philippine Supreme Court since 1902.[5] The 1936 case Angara v.
Electoral Commission exhaustively discussed the concept as follows:[6]

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact
that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x.

And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the Constitution.

x x x x As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject
to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed “judicial
supremacy” which properly is the power of judicial review under the
Constitution. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution,
extending its coverage to the determination of whether there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.[7] The expansion made the political question
doctrine “no longer the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review.”[8] Thus, aside from the test of constitutionality, this Court has been expressly
granted the power and the duty to examine whether the exercise of discretion in those
areas that are considered political questions was attended with grave abuse.[9]

This moderating power of the Court, however, must be exercised carefully, and only if it
cannot be feasibly avoided, as it involves the delicate exercise of pronouncing an act of
a branch or an instrumentality of government unconstitutional, at the risk of
supplanting the wisdom of the constitutionally appointed actor with that of the
judiciary.[10] It cannot be overemphasized that our Constitution was so incisively
designed that the different branches of government were made the respective experts
in their constitutionally assigned spheres.[11] Hence, even as the Court dutifully exercises
its power of judicial review to check – in this case, the legislature – it must abide by the
strict requirements of its exercise under the Constitution. Indeed, “[a] ruling of
unconstitutionality frustrates the intent of the elected representatives of the people.”[12]

Demetria v. Alba[13] and Francisco v. House of Representatives[14] cite the “seven pillars”

of the limitations of the power of judicial review, enunciated in the concurring opinion
of U.S. Supreme Court Justice Louis Brandeis in Ashwander v. Tennessee Valley
Authority[15] as follows:
 1. The Court will not pass upon the constitutionality of legislation in a friendly,
non-adversary, proceeding, declining because to decide such questions
“is legitimate only in the last resort, and as a necessity in the determination of
real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the legislative act.”
x x x.
2. The Court will not “anticipate a question of constitutional law in advance of the
necessity of deciding it.” x x x. “It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a decision of
the case.”
3. The Court will not “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.” x x x.
4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which
the case may be disposed of. This rule has found most varied application. Thus, if
a case can be decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general law, the Court
will decide only the latter. x x x.
5. The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. x x x. Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge by a
public official interested only in the performance of his official duty will not be
entertained. x x x.
6. The Court will not pass upon the constitutionality of a statute at the instance of
one who has availed himself of its benefits. x x x.
7. “When the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible by
which the question may be avoided.” (Citations omitted, emphases supplied)

These are specific safeguards laid down by the Court when it exercises its power of
judicial review. Thus, as a threshold condition, the power of judicial review may be
invoked only when the following four stringent requirements are satisfied: (a) there
must be an actual case or controversy; (b) petitioners must possess  locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue
of constitutionality must be the lis mota of the case.[16]

Specifically focusing on the first requisite, it necessitates that there be an existing case
or controversy that is appropriate or ripe for determination as opposed to a case that is
merely conjectural or anticipatory.[17] The case must involve a definite and concrete
issue concerning real parties with conflicting legal rights and opposing legal claims,
admitting of a specific relief through a decree conclusive in nature.[18] The “ripeness” for
adjudication of the controversy is generally treated in terms of actual injury to the
plaintiff.[19] Hence, a question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. The case should not equate
with a mere request for an opinion or an advice on what the law would be upon an
abstract, hypothetical, or contingent state of facts.[20] As explained in Angara v. Electoral
Commission: [21]
[The] power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and
legislative departments of the government. (Emphases supplied)

According to one of the most respected authorities in American constitutional law,

Professor Paul A. Freund, the actual case or controversy requirement is a crucial
restraint on the power of unelected judges to set aside the acts of the people’s
representative to Congress.[22] Furthermore, he explains:[23]

The rules of “case and controversy” can be seen as the necessary corollary of this vast
power – necessary for its wise exercise and its popular acceptance. By declining to give
advisory opinions, the Court refrains from intrusion into the lawmaking process. By
requiring a concrete case with litigants adversely affected, the Court helps itself to
avoid premature, abstract, ill-informed judgments. By placing a decision on a non-
constitutional ground whenever possible, the Court gives the legislature an opportunity
for sober second thought, an opportunity to amend the statue to obviate the
constitutional question, a chance to exercise that spirit of self-scrutiny and self-
correction which is the essence of a successful democratic system. (Emphases supplied)

While the actual controversy requirement has been largely interpreted in the light of
the implications of the assailed law vis-à-vis the legally demandable rights of real parties
and the direct injury caused by the assailed law, we have also exceptionally recognized
the possibility of lodging a constitutional challenge sans a pending case involving a
directly injured party. In Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council,[24] we conceded the possibility of a pre-enforcement judicial
review of a penal statute, so long as there is a real and credible threat of prosecution
involving the exercise of a constitutionally protected conduct or activity.[25] We noted
that the petitioners therein should not be required to expose themselves to criminal
prosecution before they could assail the constitutionality of a statute, especially in the
face of an imminent and credible threat of prosecution.[26]

On 5 February 2013, this Court extended indefinitely the temporary restraining order
enjoining the government from implementing and enforcing the  Cybercrime Prevention
Act of 2012. As the assailed law is yet to be enforced, I believe that in order to give due
course to the Petitions, we would have to test their qualification for pre-enforcement
judicial review of the assailed law and its provisions.

In discussing the requirements of a pre-enforcement judicial review, we refer to our

ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial
review of the assailed provisions of the Human Security Act of 2007, because petitioners
failed to show that the law forbade them from exercising or performing a
constitutionally protected conduct or activity that they sought to do. We also explained
that the obscure and speculative claims of the petitioners therein that they were being
subjected to sporadic “surveillance” and tagged as “communist fronts” were insufficient
to reach the level of a credible threat of prosecution that would satisfy the actual-
controversy requirement. Thus, from the facts they had shown, we ruled that the Court
was merely “being lured to render an advisory opinion, which [was] not its function.”[27]

We then drew a distinction between the facts in Southern Hemisphere and those

in Holder v. Humanitarian Law Project, a case decided by the United States Supreme
Court. We noted that in Holder, a pre-enforcement judicial review of the assailed
criminal statue was entertained because the plaintiffs therein had successfully
established that there was a genuine threat of imminent prosecution against them,
thereby satisfying the actual-controversy requirement. The case concerned a new law
prohibiting the grant of material support or resources to certain foreign organizations
engaged in terrorist activities. Plaintiffs showed that they had been providing material
support to those declared as foreign terrorist organizations; and that, should they
continue to provide support, there would be a credible threat of prosecution against
them pursuant to the new law. The plaintiffs therein insisted that they only sought to
facilitate the lawful, nonviolent purposes of those groups – such as the latter’s political
and humanitarian activities – and that the material-support law would prevent the
plaintiffs from carrying out their rights to free speech and to association. Based on the
foregoing considerations, the U.S. Supreme Court concluded that the claims of the
plaintiffs were suitable for judicial review, as there was a justiciable case or controversy.

We may thus cull from the foregoing cases that an anticipatory petition assailing the
constitutionality of a criminal statute that is yet to be enforced may be exceptionally
given due course by this Court when the following circumstances are shown: (a) the
challenged law or provision forbids a constitutionally protected conduct or activity that
a petitioner seeks to do; (b) a realistic, imminent, and credible threat or danger of
sustaining a direct injury or facing prosecution awaits the petitioner should the
prohibited conduct or activity be carried out; and (c) the factual
circumstances surrounding the prohibited conduct or activity sought to be carried out
are real, not hypothetical and speculative, and are sufficiently alleged and proven.[28] It
is only when these minimum conditions are satisfied can there be a finding of a
justiciable case or actual controversy worthy of this Court’s dutiful attention and
exercise of pre-enforcement judicial review. Furthermore, since the issue of the
propriety of resorting to a pre-enforcement judicial review is subsumed under the
threshold requirement of actual case or controversy, we need not go through the merits
at this stage. Instead, the determination of whether or not to exercise this power must
hinge solely on the allegations in the petition, regardless of the petitioner’s
entitlement to the claims asserted.

A review of the petitions before us shows that, save for the Disini Petition,[29] all
petitions herein have failed to establish that their claims call for this Court’s exercise of
its power of pre-enforcement judicial review.

Petitioners allege that they are users of various information and communications
technologies (ICT) as media practitioners, journalists, lawyers, businesspersons, writers,
students, Internet and social media users, and duly elected legislators. However, except
for the Petition of Disini, none of the other petitioners have been able to show that
they are facing an imminent and credible threat of prosecution or danger of sustaining
a direct injury. Neither have they established any real, factual circumstances in which
they are at risk of direct injury or prosecution, should those acts continue to be carried
out. They have simply posed hypothetical doomsday scenarios and speculative
situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of
digital and personal information by the government; or a wanton taking down of
legitimate websites.[30] Others have made outright legal queries on how the law would
be implemented in various circumstances, such as when a person disseminates, shares,
affirms, “likes,” “retweets,” or comments on a potentially libelous article.[31] A
considerable number of them have merely raised legal conclusions on the implication of
the new law, positing that the law would per se prevent them from freely expressing
their views or comments on intense national issues involving public officials and their
official acts.[32] While these are legitimate concerns of the public, giving in to these
requests for advisory opinion would amount to an exercise of the very same function
withheld from this Court by the actual controversy requirement entrenched in Section
1, Article III of our Constitution.

The Petition of Disini is the only pleading before the Court that seems to come close to
the actual-controversy requirement under the Constitution. What sets the Petition apart
is that it does not merely allege that petitioners therein are ICT users who have posted
articles and blogs on the Internet. The Petition also cites particular blogs or online
articles of one of the petitioners who was critical of a particular legislator.
[33]
 Furthermore, it refers to a newspaper article that reported the legislator’s intent to
sue under the new law, once it takes effect. The pertinent portion of the Petition reads:
[34]

5. Petitioners are all users of the Internet and social media. Petitioner Ernesto
Sonido, Jr. (“Petitioner Sonido”), in particular, maintains the blog “Baratillo
Pamphlet” over the Internet.
6. On August 22, 2012 and September 7, 2012, Petitioner Sonido posted 2 blogs
entitled “Sotto Voce: Speaking with Emphasis” and “Sotto and Lessons on Social
Media” in which he expressed his opinions regarding Senator Vicente “Tito”
Sotto III’s (“Senator Sotto”) alleged plagiarism of online materials for use in his
speech against the Reproductive Health Bill.
7. On August 30, 2012, Senator Sotto disclosed that the Cybercrime Bill was
already approved by the Senate and the House of Representatives and was
merely awaiting the President’s signature. He then warned his critics that once
signed into law, the Cybercrime Bill will penalize defamatory statements made
online. To quote Senator Sotto:

“Walang ginawa yan [internet users] umaga, hapon, nakaharap

sa computer, target nuon anything about the [Reproductive Health] Bill. Ganun
ang strategy nun and unfortunately, di panapipirmahan ang  Cybercrime
bill. Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda.
Sa  Cybercrime  bill, magkakaroon ng accountability sa kanilang
pinagsasabi, penalties na haharapin, same penalties as legitimate journalists,
anything that involves the internet,” he said.

8. The threat of criminal prosecution that was issued by Senator Sotto affected not
only bloggers like Petitioner Sonido but all users of the Internet and social media
as the other Petitioners herein who utilize online resources to post comments
and express their opinions about social issues.
 9. The President finally signed the Cybercrime Act into law on September 12, 2012.
10. With the passage of the Cybercrime Act, the threat that was issued by Senator
Sotto against his online critics has become real. (Emphases and italics supplied)

The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and
credible danger that at least one of its petitioners may sustain a direct injury should
respondents proceed to carry out the prohibited conduct or activity. First, there was a
citation not only of a particular blog, but also of two potentially libelous entries in the
blog. Second, the plausibly libelous nature of the articles was specifically described.
Third, the subject of the articles, Senator Vicente Sotto III, was alleged to have made
threats of using the assailed statute to sue those who had written unfavorably about
him; a verbatim quote of the legislator’s threat was reproduced in the Petition. Fourth,
the person potentially libeled is a nationally elected legislator.

This combination of factual allegations seems to successfully paint a realistic possibility

of criminal prosecution under Section 4(c)(4) of a specific person under the assailed law.
Consequently, there is now also a possibility of the writer being penalized under Section
6, which raises the penalty for crimes such as libel by one degree when committed
through ICT. The alleged facts would also open the possibility of his being charged twice
under Section 4(c)(4) and Article 353 of the Revised Penal Code by virtue of Section 7.
Furthermore, since he might become a suspect in the crime of libel, his online activities
might be in danger of being investigated online by virtue of Section 12 or his access to
computer data might be restricted under Section 19.

Therefore, it is submitted that the Court must limit its discussion of the substantive
merits of the cases to the Petition of Disini, at the most and only on the provisions
questioned therein.

II.

PARTICULAR PROVISIONS OF THE

CYBERCRIME PREVENTION ACT
MAY BE FACIALY INVALIDATED.

A facial challenge refers to the call for the scrutiny of an entire law or provision by
identifying its flaws or defects, not only on the basis of its actual operation on the
attendant facts raised by the parties, but also on the assumption or prediction that the
very existence of the law or provision is repugnant to the Constitution.[35] This kind of
challenge has the effect of totally annulling the assailed law or provision, which is
deemed to be unconstitutional per se. The challenge is resorted to by courts, especially
when there is no instance to which the law or provision can be validly applied.[36]

In a way, a facial challenge is a deviation from the general rule that Courts should only
decide the invalidity of a law “as applied” to the actual, attending circumstances before
it.[37] An as-applied challenge refers to the localized invalidation of a law or provision,
limited by the factual milieu established in a case involving real litigants who are actually
before the Court.[38] This kind of challenge is more in keeping with the established canon
of adjudication that “the court should not form a rule of constitutional law broader than
is required by the precise facts to which it is applied.”[39] Should the petition prosper, the
unconstitutional aspects of the law will be carved away by invalidating its improper
applications on a case-to-case basis.[40] For example, in Ebralinag v. Division of
Superintendent of Schools of Cebu,[41] the Court exempted petitioner-members of the
religious group Jehovah’s Witness from the application of the Compulsory Flag
Ceremony in Educational Institutions Act on account of their religious beliefs. The Court
ruled that the law requiring them to salute the flag, sing the national anthem, and recite
the patriotic pledge cannot be enforced against them at the risk of expulsion, because
the law violated their freedom of religious expression. In effect, the law was deemed
unconstitutional insofar as their religious beliefs were concerned.

Because of its effect as a total nullification, the facial invalidation of laws is deemed to
be a “manifestly strong medicine” that must be used sparingly and only as a last resort.
[42]
 The general disfavor towards it is primarily due to the “combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes.”[43] Claims of facial invalidity “raise the risk of ‘premature
interpretation of statutes on the basis of factually barebones records.’”[44]

A. Section 6 – Increase of Penalty by One Degree

Section 6 was worded to apply to all existing penal laws in this jurisdiction. Due to the
sheer extensiveness of the applicability of this provision, I believe it unwise to issue a
wholesale facial invalidation thereof, especially because of the insufficiency of the facts
that would allow the Court to make a conclusion that the provision has no valid
application.

Alternatively, the discussion can be limited to the allegations raised in the Petition
of Disini  concerning the right to free speech. The Petition asserts that Section 6 (on the
increase of penalty by one degree), in conjunction with the provision on cyberlibel, has
the combined chilling effect of curtailing the right to free speech. The Petition posits
that the law “imposes heavier penalties for online libel than paper-based libel” in that
the imposable penalty for online libel is now increased from prisión correccional in its
minimum and medium periods (6 months and 1 day to 4 years and 2 months) to  prisión
mayor in its minimum and medium periods (6 years and 1 day to 10 years).[45]

The ponencia correctly holds that libel is not a constitutionally protected conduct. It is

also correct in holding that, generally, penal statutes cannot be invalidated on the
ground that they produce a “chilling effect,” since by their very nature, they are
intended to have an  in terrorem effect (benign chilling effect)[46] to prevent a repetition
of the offense and to deter criminality.[47] The “chilling effect” is therefore equated with
and justified by the intended in terrorem effect of penal provisions.

This does not mean, however, that the Constitution gives Congress the carte blanche
power to indiscriminately impose and increase penalties. While the determination of
the severity of a penalty is a prerogative of the legislature, when laws and penalties
affect free speech, it is beyond question that the Court may exercise its power of judicial
review to determine whether there has been a grave abuse of discretion in imposing or
increasing the penalty. The Constitution’s command is clear: “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.”
Thus, when Congress enacts a penal law affecting free speech and accordingly imposes
a penalty that is so discouraging that it effectively creates an invidious chilling effect,
thus impeding the exercise of speech and expression altogether, then there is a
ground to invalidate the law. In this instance, it will be seen that the penalty provided
has gone beyond the  in terrorem effect needed to deter crimes and has thus reached
the point of encroachment upon a preferred constitutional right. I thus vote to facially
invalidate Section 6 insofar as it applies to the crime of libel.

As will be demonstrated below, the confluence of the effects of the increase in penalty
under this seemingly innocuous provision, insofar as it is applied to libel, will practically
result in chilling the right of the people to free speech and expression.

Section 6 creates an
additional in
terrorem effect on
top of that already
created by Article
355 of the Revised
Penal Code

The basic postulate of the classical penal system on which our  Revised Penal Code is
based is that humans are rational and calculating beings who guide their actions by the
principles of pleasure and pain.[48] They refrain from criminal acts if threatened with
punishment sufficient to cancel the hope of possible gain or advantage in committing
the crime.[49] This consequence is what is referred to as the in terrorem effect sought to
be created by the  Revised Penal Code in order to deter the commission of a crime.
[50]
 Hence, in the exercise of the people’s freedom of speech, they carefully decide
whether to risk publishing materials that are potentially libelous by weighing the
severity of the punishment - if and when the speech turns out to be libelous - against
the fulfillment and the benefits to be gained by them.

Our Revised Penal Code increases the imposable penalty when there are attending
circumstances showing a greater perversity or an unusual criminality in the commission
of a felony.[51] The intensified punishment for these so-called aggravating circumstances
is grounded on various reasons, which may be categorized into (1) the motivating power
itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or
(5) the personal circumstances of the offender or of the offended party.[52] Based on the
aforementioned basic postulate of the classical penal system, this is an additional in
terrorem  effect created by the Revised Penal Code, which targets the deterrence of a
resort to greater perversity  or to an unusual criminality in the commission of a felony.

Section 4(c)(4) of the Cybercrime Prevention Act expressly amended Article 355 of

the Revised Penal Code, thereby clarifying that the use of a “computer system or any
other similar means” is a way of committing libel. On the other hand, Section 6 of
the Cybercrime Prevention Act introduces a qualifying aggravating circumstance, which
reads: Sec.

6. All crimes defined and penalized by the Revised Penal Code, as amended, and special
laws, if committed by, through and with the use of information and communications
technologies shall be covered by the relevant provisions of this Act: Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be. (Emphases
supplied)

A perfunctory application of the aforementioned sections would thus suggest the

amendment of the provision on libel in the Revised Penal Code, which now appears to
contain a graduated scale of penalties as follows:

ARTICLE 355. Libel by Means Writings or Similar Means. — A libel committed by means

of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prisión correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

[Libel committed by, through and with the use of a computer system or any other
similar means which may be devised in the future shall be punished by[53] prisión
correccional  in its maximum period to prisión mayor in its minimum period].
(Emphases supplied)

Section 6 effectively creates an additional  in terrorem effect by introducing a

qualifying aggravating circumstance: the use of ICT. This additional burden is on top of
that already placed on the crimes themselves, since the in terrorem effect of the latter is
already achieved through the original penalties imposed by the Revised Penal Code.
Consequently, another consideration is added to the calculation of penalties by the
public. It will now have to weigh not only whether to exercise freedom of speech, but
also whether to exercise this freedom through ICT.

One begins to see at this point how the exercise of freedom of speech is clearly
burdened. The Court can take judicial notice of the fact that ICTs are fast becoming the
most widely used and accessible means of communication and of expression.
Educational institutions encourage the study of ICT and the acquisition of the
corresponding skills. Businesses, government institutions and civil society organizations
rely so heavily on ICT that it is no exaggeration to say that, without it, their operations
may grind to a halt. News organizations are increasingly shifting to online publications,
too. The introduction of social networking sites has increased public participation in
socially and politically relevant issues. In a way, the Internet has been transformed into
“freedom parks.” Because of the inextricability of ICT from modern life and the exercise
of free speech and expression, I am of the opinion that the increase in penalty per
se effectively chills a significant amount of the exercise of this preferred constitutional
right.

The chill does not stop there. As will be discussed below, this increase in penalty has a
domino effect on other provisions in the Revised Penal Code thereby further affecting
the public’s calculation of whether or not to exercise freedom of speech. It is certainly
disconcerting that these effects, in combination with the increase in penalty per se,
clearly operate to tilt the scale heavily against the exercise of freedom of speech.

The increase in
penalty also results
in the imposition of
harsher accessory
penalties.

Under the Revised Penal Code, there are accessory penalties that are inherent in certain
principal penalties. Article 42 thereof provides that the principal (afflictive) penalty
of prisión mayor carries with it the accessory penalty of temporary absolute
disqualification. According to Article 30, this accessory penalty shall produce the
following effects:

1. The deprivation of the public offices and employments which the offender may

have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office
or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of
any of the rights mentioned. In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all right to retirement pay or other pension for any office formerly
held. (Emphases supplied)

Furthermore, the accessory penalty of perpetual special disqualification from the right

of suffrage shall be meted out to the offender. Pursuant to Article 32, this penalty
means that the offender shall be perpetually deprived of the right (a) to vote in any
popular election for any public office; (b) to be elected to that office; and (c) to hold any
public office.[54] This perpetual special disqualification will only be wiped out if expressly
remitted in a pardon.

On the other hand, Article 43 provides that when the principal (correctional) penalty
of prisión correccional is meted out, the offender shall also suffer the accessory
penalty of suspension from public office and from the right to follow a profession or
calling during the term of the sentence. While the aforementioned principal penalty
may carry with it the accessory penalty of perpetual special disqualification from the
right of suffrage, it will only be imposed upon the offender if the duration of
imprisonment exceeds 18 months.

Before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355 of
the Revised Penal Code, even if committed by means of ICT, is prisión correccional in its
minimum and medium periods. Under Section 6 of the Cybercrime Prevention Act, the
imposable penalty for libel qualified by ICT is now increased to prisión correccional in its
maximum period to prisión mayor in its minimum period.[55] Consequently, it is now
possible for the above-enumerated harsher accessory penalties for  prisión mayor to
attach depending on the presence of mitigating circumstances.

Hence, the public will now have to factor this change into their calculations, which will
further burden the exercise of freedom of speech through ICT.

The increase in
penalty neutralizes
the full benefits of
the law on
probation,
effectively
threatening the
public with the
guaranteed
imposition of
imprisonment and
the accessory
penalties thereof.

Probation[56] is a special privilege granted by the State to penitent, qualified offenders

who immediately admit to their liability and thus renounce the right to appeal. In view
of their acceptance of their fate and willingness to be reformed, the State affords them
a chance to avoid the stigma of an incarceration record by making them undergo
rehabilitation outside prison.

Section 9 of Presidential Decree No. (P.D.) 968, as amended - otherwise known as

the Probation Law  - provides as follows:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to
those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of subversion or any crime against the national security or the public
order;

(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos;

(d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof. (Emphasis supplied)

Pursuant to Article 355 of the Revised Penal Code, libel is punishable by prisión
correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and
medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. However,
in the light of the increase in penalty by one degree under the Cybercrime Prevention
Act, libel qualified by the use of ICT is now punishable by prisión correccional in its
maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its
minimum period (from 6 years and 1 day to 8 years).[57] This increased penalty means
that if libel is committed through the now commonly and widely used means of
communication, ICT, libel becomes a non-probationable offense.
One of the features of the  Probation Law is that it suspends the execution of the
sentence imposed on the offender.[58] In Moreno v. Commission on Elections,[59] we
reiterated our discussion in Baclayon v. Mutia[60] and explained the effect of the
suspension as follows:

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is
not a sentence but is rather, in effect, a suspension of the imposition of sentence. We
held that the grant of probation to petitioner suspended the imposition of the
principal penalty of imprisonment, as well as the accessory penalties of suspension
from public office and from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage. We thus deleted from the
order granting probation the paragraph which required that petitioner refrain from
continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from
public office, from the right to follow a profession or calling, and that of perpetual
special disqualification from the right of suffrage, attendant to the penalty of  arresto
mayor in its maximum period to  prisión correccional in its minimum period imposed
upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of
suspension from public office is put on hold for the duration of the probation.
(Emphases supplied)

It is not unthinkable that some people may risk a conviction for libel, considering that
they may avail themselves of the privilege of probation for the sake of exercising their
cherished freedom to speak and to express themselves. But when this seemingly
neutral technology is made a qualifying aggravating circumstance to a point that a
guaranteed imprisonment would ensue, it is clear that the in terrrorem effect of libel
is further magnified, reaching the level of an invidious chilling effect. The public may
be forced to forego their prized constitutional right to free speech and expression in the
face of as much as eight years of imprisonment, like the sword of Damocles hanging
over their heads.

Furthermore, it should be noted that one of the effects of probation is the suspension
not only of the penalty of imprisonment, but also of the accessory penalties attached
thereto. Hence, in addition to the  in terrorem effect supplied by the criminalization of a
socially intolerable conduct and the in terrorem effect of an increase in the duration of
imprisonment in case of the presence of an aggravating circumstance, the Revised Penal
Code threatens further[61] by attaching accessory penalties to the principal penalties.

Section 6 increases
the prescription
periods for the crime
of cyberlibel and its
penalty to 15 years.
Crimes and their penalties prescribe. The prescription of a crime refers to the loss or
waiver by the State of its right to  prosecute an act prohibited and punished by law.[62] It
commences from the day on which the crime is discovered by the offended party, the
authorities or their agents.[63] On the other hand, the prescription of the penalty is the
loss or waiver by the State of its right to  punish the convict.[64] It commences from the
date of evasion of service after final sentence. Hence, in the prescription of crimes, it is
the penalty prescribed by law that is considered; in the prescription of penalties, it is the
penalty imposed.[65]

By setting a prescription period for crimes, the State by an act of grace surrenders its
right to  prosecute and declares the offense as no longer subject to prosecution after a
certain period.[66] It is an amnesty that casts the offense into oblivion and declares that
the offenders are now at liberty to return home and freely resume their activities as
citizens.[67] They may now rest from having to preserve the proofs of their innocence,
because the proofs of their guilt have been blotted out.[68]

The Revised Penal Code sets prescription periods for crimes according to the following
classification of their penalties:

ARTICLE 90. Prescription of Crimes. — Crimes punishable by death, reclusión

perpetua or  reclusión temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one the highest penalty shall be made the
basis of the application of the rules contained in the first, second and third paragraphs
of this article. (Emphases supplied)

On the other hand, Article 92 on the prescription of penalties states:

ARTICLE 92. When and How Penalties Prescribe. — The penalties imposed by final
sentence prescribe as follows:

1. Death and  reclusión perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty of arresto
mayor, which prescribes in five years;
4. Light penalties, in one year. (Emphases supplied)

As seen above, before the passage of the Cybercrime Prevention Act, the state
effectively waives its right to prosecute crimes involving libel. Notably, the prescription
period for libel used to be two years, but was reduced to one year through Republic Act
No. 4661 on 18 June 1966.[69] Although the law itself does not state the reason behind
the reduction, we can surmise that it was made in recognition of the harshness of the
previous period, another act of grace by the State.

With the increase of penalty by one degree pursuant to Section 6 of the Cybercrime

Prevention Act, however, the penalty for libel through ICT becomes afflictive under
Article 25 of the Revised Penal Code. Accordingly, under the above-quoted provision,
the crime of libel through ICT shall now possibly prescribe in 15 years - a 15-fold
increase in the prescription period.[70] In effect, the State’s grant of amnesty to the
offender will now be delayed by 14 years more. Until a definite ruling from this Court in
a proper case is made, there is uncertainty as to whether the one-year prescription
period for ordinary libel will also apply to libel through ICT.

Similarly, under Article 92, the prescription period for the penalty of libel through ICT is
also increased from 10 years - the prescription period for correctional penalties - to 15
years, the prescription for afflictive penalties other than reclusión perpetua. These twin
increases in both the prescription period for the crime of libel through ICT and in that
for its penalty are additional factors in the public’s rational calculation of whether or not
to exercise their freedom of speech and whether to exercise that freedom through ICT.
Obviously, the increased prescription periods - yet again - tilt the scales, heavily against
the exercise of this freedom.

Regrettably, the records of the Bicameral Conference Committee deliberation do not

show that the legislators took into careful consideration this domino effect that, when
taken as a whole, clearly discourages the exercise of free speech. This, despite the fact
that the records of the committee deliberations show that the legislators became aware
of the need to carefully craft the application of the one-degree increase in penalty and
“to review again the Revised Penal Code and see what ought to be punished, if
committed through the computer.” But against their better judgment, they proceeded
to make an all-encompassing application of the increased penalty sans any careful
study, as the proceedings show:

THE CHAIRMAN (REP. TINGA). With regard to some of these offenses, the reason why
they were not included in the House version initially is that, the assumption that the
acts committed that would make it illegal in the real world would also be illegal in the
cyberworld, ‘no.

For example, libel po. When we discussed this again with the Department of Justice, it
was their suggestion to include an all-encompassing paragraph...

THE CHAIRMAN (SEN. ANGARA). (Off-mike) A catch all–

THE CHAIRMAN (SEN. TINGA). ...a catch all, wherein all crimes defined and penalized by
the Revised Penal Code as amended and special criminal laws committed by, through,
and with the use of information and communications technology shall be covered by the
relevant provisions of this act. By so doing, Mr. Chairman, we are saying that if we
missed out on any of these crimes – we did not specify them, point by point – they
would still be covered by this act, ‘no.

So it would be up to you, Mr. Chairman...

THE CHAIRMAN (SEN. ANGARA). Yeah.

xxxx

THE CHAIRMAN (REP. TINGA). ...do we specify this and then or do we just use an all-
encompassing paragraph to cover them.

THE CHAIRMAN (SEN. ANGARA). Well, as you know, the Penal Code is really a very, very
old code. In fact, it dates back to the Spanish time and we amend it through several
Congresses. So like child pornography, this is a new crime, cybersex is a new crime. Libel
through the use of computer system is a novel way of slandering and maligning people.
So we thought that we must describe it with more details and specificity as required by
the rules of the Criminal Law. We’ve got to be specific and not general in indicting a
person so that he will know in advance what he is answering for. But we can still
include and let-anyway, we have a separability clause, a catch all provision that you
just suggested and make it number five. Any and all crimes punishable under the
Revised Penal Code not heretofore enumerated above but are committed through the
use of computer or computer system shall also be punishable but we should match it
with a penalty schedule as well.

So we’ve got to review. Mukhang mahirap gawin yun,  huh. We have to review again
the Revised Penal Code and see what ought to be punished, if committed through the
computer. Then we’ve got to review the penalty, huh.

THE CHAIRMAN (REP. TINGA). I agree, Mr. Chairman, that you are defining the newer
crimes. But I also agree as was suggested earlier that there should be an all-
encompassing phrase to cover these crimes in the Penal Code, ‘no. Can that not be
matched with a penalty clause that would cover it as well? Instead of us going line by
line through the–

THE CHAIRMAN (SEN. ANGARA). So you may just have to do that by a reference. The
same penalty imposed under the Revised Penal Code shall be imposed on these crimes
committed through computer or computer systems.

xxxx

THE CHAIRMAN (REP. TINGA). Okay.

And may we recommend, Mr. Chairman, that your definition of the penalty be added
as well where it will be one degree higher...

THE CHAIRMAN (SEN. ANGARA). Okay.

THE CHAIRMAN (REP. TINGA). ...than the relevant penalty as prescribed in the Revised
Penal Code.

So, we agree with your recommendation, Mr. Chairman.

xxxx
THE CHAIRMAN (SEN. ANGARA). Okay, provided that the penalty shall be one degree
higher than that imposed under the Revised Penal Code.

Okay, so–

xxxx

REP. C. SARMIENTO. Going by that ruling, if one commits libel by email, then the
penalty is going to be one degree higher...

THE CHAIRMAN (SEN. ANGARA). One degree higher.

REP. C. SARMIENTO . ...using email?

THE CHAIRMAN (SEN. ANGARA). Yes.

REP. C. SARMIENTO. As compared with libel through media or distributing letters or

faxes.

THE CHAIRMAN (SEN. ANGARA). I think so, under our formulation. Thank
you. (Emphases supplied)[71]

ICT as a qualifying
aggravating
circumstance cannot
be offset by any
mitigating
circumstance.

A qualifying aggravating circumstance has the effect not only of giving the crime its
proper and exclusive name, but also of placing the offender in such a situation as to
deserve no other penalty than that especially prescribed for the crime.[72] Hence, a
qualifying aggravating circumstance increases the penalty by degrees. For instance,
homicide would become murder if attended by the qualifying circumstance of
treachery, thereby increasing the penalty from reclusión temporal  to reclusión
perpetua.[73] It is unlike a generic aggravating circumstance, which increases the penalty
only to the maximum period of the penalty prescribed by law, and not to an entirely
higher degree.[74] For instance, if the generic aggravating circumstance of dwelling or
nighttime attends the killing of a person, the penalty will remain the same as that for
homicide (reclusión temporal), but applied to its maximum period. Also, a generic
aggravating circumstance may be offset by a generic mitigating circumstance, while a
qualifying aggravating circumstance cannot be.[75]

Hence, before the  Cybercrime Prevention Act, libel - even if committed through ICT -
was punishable only by prisión correccional from its minimum (6 months and 1 day to 2
years and 4 months) to its medium period (2 years, 4 months, and 1 day to 4 years and 2
months).
Under Section 6 however, the offender is now punished with a new range of penalty
- prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6
years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years). And
since the use of ICT as a qualifying aggravating circumstance cannot be offset by any
mitigating circumstance, such as voluntary surrender, the penalty will remain within the
new range of penalties.

As previously discussed, qualifying aggravating circumstances, by themselves, produce

an in terrorem effect. A twofold increase in the maximum penalty – from 4 years and 2
months to 8 years – for the use of an otherwise beneficial and commonly used means of
communication undeniably creates a heavier invidious chilling effect.

The Court has the

duty to restore the
balance and protect
the exercise of
freedom of speech.

Undeniably, there may be substantial distinctions between ICT and other means of
committing libel that make ICT a more efficient and accessible means of committing
libel. However, it is that same efficiency and accessibility that has made ICT an
inextricable part of people’s lives and an effective and widely used tool for the exercise
of freedom of speech, a freedom that the Constitution protects and that this Court has a
duty to uphold.

Facial challenges have been entertained when, in the judgment of the Court, the
possibility that the freedom of speech may be muted and perceived grievances left to
fester outweighs the harm to society that may be brought about by allowing some
unprotected speech or conduct to go unpunished.[76]

In the present case, it is not difficult to see how the increase of the penalty under
Section 6 mutes freedom of speech. It creates a domino effect that effectively
subjugates the exercise of the freedom – longer prison terms, harsher accessory
penalties, loss of benefits under the Probation Law, extended prescription periods, and
ineligibility of these penalties to be offset by mitigating circumstances. What this Court
said in People v. Godoy,[77] about “mankind’s age-old observation” on capital
punishment, is appropriate to the penalty in the present case: “If it is justified, it serves
as a deterrent; if injudiciously imposed, it generates resentment.”[78] Thus, I am of the
opinion that Section 6, as far as libel is concerned, is facially invalid.

B. Section 12 – Real-Time Collection of Traffic Data.

Real-time collection of traffic data may be indispensable to law enforcement in certain

instances. Also, traffic data per se may be examined by law enforcers, since there is no
privacy expectation in them. However, the authority given to law enforcers must be
circumscribed carefully so as to safeguard the privacy of users of electronic
communications. Hence, I support the ponencia in finding the first paragraph of
Section 12 unconstitutional because of its failure to provide for strong safeguards
against intrusive real-time collection of traffic data. I clarify, however, that this
declaration should not be interpreted to mean that Congress is now prevented from
going back to the drawing board in order to fix the first paragraph of Section 12. Real-
time collection of traffic data is not invalid per se. There may be instances in which a
warrantless real-time collection of traffic data may be allowed when robust
safeguards against possible threats to privacy are provided. Nevertheless, I am of the
opinion that there is a need to explain why real-time collection of traffic data may be
vital at times, as well as to explain the nature of traffic data.

Indispensability of Real-time Collection of Traffic Data

In order to gain a contextual understanding of the provision under the Cybercrime

Prevention Act on the real-time collection of traffic data, it is necessary to refer to
the Budapest Convention on Cybercrime, which the Philippine Government
requested[79] to be invited to accede to in 2007. The Cybercrime Prevention Act was
patterned after this convention.[80]

The Budapest Convention on Cybercrime is an important treaty, because it is the first

and only multinational agreement on cybercrime.[81] It came into force on 1 July
2004[82] and, to date, has been signed by 45 member states of the Council of Europe
(COE), 36 of which have ratified the agreement.[83] Significantly, the COE is the leading
human rights organization of Europe.[84] Moreover, two important non-member states
or “partner countries”[85] have likewise ratified it - the United States on 29 September
2006 and Japan on 3 July 2012. Australia and the Dominican Republic have also joined
by accession.[86]

The Convention “represents a comprehensive international response to the problems of

cybercrime”[87] and is the product of a long process of careful expert studies and
international consensus. From 1985 to 1989, the COE’s Select Committee of Experts on
Computer-Related Crime debated issues before drafting Recommendation 89(9). This
Recommendation stressed the need for a quick and adequate response to the
cybercrime problems emerging then and noted the need for an international consensus
on criminalizing specific computer-related offenses.[88] In 1995, the COE adopted
Recommendation No. R (95)13, which detailed principles addressing search and seizure,
technical surveillance, obligations to cooperate with the investigating authorities,
electronic evidence, and international cooperation.[89] In 1997, the new Committee of
Experts on Crime in Cyberspace was created to examine, “in light of Recommendations
No R (89)9 and No R (95)13,” the problems of “cyberspace offenses and other
substantive criminal law issues where a common approach may be necessary for
international cooperation.” It was also tasked with the drafting of “a binding legal
instrument” to deal with these issues. The preparation leading up to the Convention
entailed 27 drafts over four years.[90]

As mentioned earlier, the Philippines was one of the countries that requested to be
invited to accede to this very important treaty in 2007, and the Cybercrime Prevention
Act was patterned after the convention.[91]

Article 1 of the Budapest Convention on Cybercrime defines “traffic data” as follows:

d. “traffic data” means any computer data relating to a communication by means of a

computer system, generated by a computer system that formed a part in the chain of
communication, indicating the communication’s origin, destination, route, time, date,
size, duration, or type of underlying service.

Section 3 of the Cybercrime Prevention Act  has a starkly similar definition of “traffic

data”:

(p)  Traffic data or non-content data refers to any computer data other than the

content of the communication including, but not limited to, the communication’s origin,
destination, route, time, date, size, duration, or type of underlying service.

However, the definition in the Cybercrime Prevention Act improves on that of the

Convention by clearly restricting traffic data to those that are non-content in nature. On
top of that, Section 12 further restricts traffic data to exclude those that refer to
the identity of persons. The provision states:

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities. (Emphasis
supplied)

Undoubtedly, these restrictions were made because Congress wanted to ensure the
protection of the privacy of users of electronic communication. Congress must have also
had in mind the 1965 Anti-Wiretapping Act, as well as the Data Privacy Act which was
passed only a month before the Cybercrime Prevention Act. However, as will be shown
later, the restrictive definition is not coupled with an equally restrictive procedural
safeguard. This deficiency is the Achilles’ heel of the provision.

One of the obligations under the Budapest Convention on Cybercrime is for state parties
to enact laws and adopt measures concerning the real-time collection of traffic data, viz:

Article 20 – Real-time collection of traffic data

1. Each Party shall adopt such legislative and other measures as may be
necessary to empower its competent authorities to:

a. collect or record through the application of technical means on the territory of

that Party, and
b. compel a service provider, within its existing technical capability:
i. to collect or record through the application of technical means on the
territory of that Party; or
ii. to co-operate and assist the competent authorities in the collection or
recording of, traffic data, in real-time, associated with specified
communications in its territory transmitted by means of a computer
system.

2. Where a Party, due to the established principles of its domestic legal system,
cannot adopt the measures referred to in paragraph 1.a, it may instead adopt
legislative and other measures as may be necessary to ensure the real-time
collection or recording of traffic data associated with specified communications
transmitted in its territory, through the application of technical means on that
territory.
 3. Each Party shall adopt such legislative and other measures as may be
necessary to oblige a service provider to keep confidential the fact of the
execution of any power provided for in this article and any information relating
to it.
4. The powers and procedures referred to in this article shall be subject to Articles
14 and 15. (Emphases supplied)

The Explanatory Report on the Budapest Convention on Cybercrime explains the

ephemeral and volatile nature of traffic data, which is the reason why it has to be
collected in real-time if it is to be useful in providing a crucial lead to investigations of
criminality online as follows:[92]

29. In case of an investigation of a criminal offence committed in relation to a computer

system, traffic data is needed to trace the source of a communication as a starting
point for collecting further evidence or as part of the evidence of the offence. Traffic
data might last only ephemerally, which makes it necessary to order its expeditious
preservation. Consequently, its rapid disclosure may be necessary to discern the
communication’s route in order to collect further evidence before it is deleted or to
identify a suspect. The ordinary procedure for the collection and disclosure of
computer data might therefore be insufficient. Moreover, the collection of this data is
regarded in principle to be less intrusive since as such it doesn’t reveal the content of
the communication which is regarded to be more sensitive.

xxxx

133. One of the major challenges in combating crime in the networked environment is
the difficulty in identifying the perpetrator and assessing the extent and impact of the
criminal act. A further problem is caused by the volatility of electronic data, which may
be altered, moved or deleted in seconds. For example, a user who is in control of the
data may use the computer system to erase the data that is the subject of a criminal
investigation, thereby destroying the evidence. Speed and, sometimes, secrecy are
often vital for the success of an investigation.

134. The Convention adapts traditional procedural measures, such as search and
seizure, to the new technological environment. Additionally, new measures have been
created, such as expedited preservation of data, in order to ensure that traditional
measures of collection, such as search and seizure, remain effective in the volatile
technological environment. As data in the new technological environment is not
always static, but may be flowing in the process of communication, other traditional
collection procedures relevant to telecommunications, such as real-time collection of
traffic data and interception of content data, have also been adapted in order to
permit the collection of electronic data that is in the process of communication. Some
of these measures are set out in Council of Europe Recommendation No. R (95) 13 on
problems of criminal procedural law connected with information technology.

xxxx

214. For some States, the offences established in the Convention would normally not be
considered serious enough to permit interception of content data or, in some cases,
even the collection of traffic data. Nevertheless, such techniques are often crucial for
the investigation of some of the offences established in the Convention, such as those
involving illegal access to computer systems, and distribution of viruses and child
pornography. The source of the intrusion or distribution, for example, cannot be
determined in some cases without real-time collection of traffic data. In some cases,
the nature of the communication cannot be discovered without real-time interception
of content data. These offences, by their nature or the means of transmission, involve
the use of computer technologies. The use of technological means should, therefore,
be permitted to investigate these offences. xxx.

xxxx

216. Often, historical traffic data may no longer be available or it may not be relevant
as the intruder has changed the route of communication. Therefore, the real-time
collection of traffic data is an important investigative measure. Article 20 addresses
the subject of real-time collection and recording of traffic data for the purpose of
specific criminal investigations or proceedings.

xxxx

218. xxx. When an illegal distribution of child pornography, illegal access to a

computer system or interference with the proper functioning of the computer system
or the integrity of data, is committed, particularly from a distance such as through the
Internet, it is necessary and crucial to trace the route of the communications back
from the victim to the perpetrator. Therefore, the ability to collect traffic data in
respect of computer communications is just as, if not more, important as it is in
respect of purely traditional telecommunications. This investigative technique can
correlate the time, date and source and destination of the suspect’s communications
with the time of the intrusions into the systems of victims, identify other victims or
show links with associates.

219. Under this article, the traffic data concerned must be associated with specified
communications in the territory of the Party. The specified ‘communications’ are in the
plural, as traffic data in respect of several communications may need to be collected in
order to determine the human source or destination (for example, in a household where
several different persons have the use of the same telecommunications facilities, it may
be necessary to correlate several communications with the individuals’ opportunity to
use the computer system). The communications in respect of which the traffic data may
be collected or recorded, however, must be specified. Thus, the Convention does not
require or authorise the general or indiscriminate surveillance and collection of large
amounts of traffic data. It does not authorise the situation of ‘fishing expeditions’
where criminal activities are hopefully sought to be discovered, as opposed to specific
instances of criminality being investigated. The judicial or other order authorising the
collection must specify the communications to which the collection of traffic data
relates.

xxxx

225. Like real-time interception of content data, real-time collection of traffic data is

only effective if undertaken without the knowledge of the persons being investigated.
Interception is surreptitious and must be carried out in such a manner that the
communicating parties will not perceive the operation. Service providers and their
employees knowing about the interception must, therefore, be under an obligation of
secrecy in order for the procedure to be undertaken effectively. (Emphases supplied)

We can gather from the Explanatory Note that there are two seemingly conflicting ideas
before us that require careful balancing – the fundamental rights of individuals, on the
one hand, and the interests of justice (which may also involve the fundamental rights of
another person) on the other. There is no doubt that privacy is vital to the existence of a
democratic society and government such as ours. It is also critical to the operation of
our economy. Citizens, governments, and businesses should be able to deliberate and
make decisions in private, away from the inhibiting spotlight.[93] Certainly, this privacy
should be maintained in the electronic context as social, governmental and economic
transactions are made in this setting.[94] At the same time however, law enforcers must
be equipped with up-to-date tools necessary to protect society and the economy from
criminals who have also taken advantage of electronic technology. These enforcers must
be supplied with investigative instruments to solve crimes and punish the criminals.[95]

What is beyond debate, however, is that real-time collection of traffic data may be
absolutely necessary in criminal investigations such that, without it, authorities may
not be able to probe certain crimes at all. In fact, it has been found that crucial
electronic evidence may never be stored at all, as it may exist only in transient
communications.[96] The UN Office on Drugs and Crime requires real-time collection of
data because of the urgency, sensitivity, or complexity of a law enforcement
investigation.[97]

Hence, it is imprudent to precipitately make (1) an absolute declaration that all kinds

of traffic data from all types of sources are protected by the constitutional right to
privacy; and (2) a blanket pronouncement that the real-time collection thereof
may only be conducted upon a prior lawful order of the court to constitute a valid
search and seizure. Rather, the Court should impose a strict interpretation of Section
12 in the light of existing constitutional, jurisprudential and statutory guarantees and
safeguards.

The Constitutional
guarantee against
unreasonable search
and seizure is
inviolable.

The inviolable right against unreasonable search and seizure is enshrined in Article III of
the Constitution, which states:

Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
It is clear from the above that the constitutional guarantee does not prohibit all
searches and seizures, but only unreasonable ones.[98] As a general rule, a search and
seizure is reasonable when probable cause has been established. Probable cause is the
most restrictive of all thresholds. It has been broadly defined as those facts and
circumstances that would lead a reasonably discreet and prudent man to believe that an
offense has been committed, and that the objects sought in connection with the offense
are in the place sought to be searched.[99] It has been characterized as referring to
“factual  and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.”[100] Furthermore, probable cause is to be determined by
a judge prior to allowing a search and seizure. The judge’s determination shall be
contained in a warrant, which shall particularly describe the place to be searched and
the things to be seized. Thus, when no warrant is issued, it is assumed that there is no
probable cause to conduct the search, making that act unreasonable.

For the constitutional guarantee to apply, however, there must first be a search in the
constitutional sense.[101] It is only when there is a search that a determination of
probable cause is required. In Valmonte v. De Villa, the Court said that the constitutional
rule cannot be applied when mere routine checks consisting of “a brief question or two”
are involved.[102] The Court said that if neither the vehicle nor its occupants are
subjected to a search - the inspection of the vehicle being limited to a visual search -
there is no violation of an individual’s right against unreasonable searches and seizures.
Hence, for as long as there is no  physical intrusion upon a constitutionally protected
area, there is no search.[103]

In recent years, the Court has had occasion to rule[104] that a search occurs when the
government violates a person’s “reasonable expectation of privacy,” a doctrine first
enunciated in Katz v. United States.[105] Katz  signalled a paradigm shift, as the inquiry
into the application of the constitutional guarantee was now expanded beyond “the
presence or absence of a physical intrusion into any given enclosure” and deemed to
“[protect] people, not places.”[106] Under this expanded paradigm, the “reasonable
expectation of privacy” can be established if the person claiming it can show that (1) by
his conduct, he exhibited an expectation of privacy and (2) his expectation is one that
society recognizes as reasonable. In People v. Johnson,[107] which cited Katz, the seizure
and admissibility of the dangerous drugs found during a routine airport inspection were
upheld by the Court, which explained that “[p]ersons may lose the protection of the
search and seizure clause by exposure of their persons or property to the public in a
manner reflecting a lack of subjective expectation of privacy, which expectation society
is prepared to recognize as reasonable.”[108]

Traffic data per
se do not enjoy
privacy protection;
hence, no
determination of
probable cause is
needed for the real-
time collection
thereof.
The very public structure of the Internet and the nature of traffic data per se undermine
any reasonable expectation of privacy in the latter. The Internet is custom-designed to
frustrate claims of reasonable expectation of privacy in traffic data per se, since the
latter are necessarily disclosed to the public in the process of communication.

Individuals have no legitimate expectation of privacy in the data they disclose to the
public and should take the risks for that disclosure. This is the holding of the U.S.
Supreme Court in Smith v. Maryland.[109] The 1979 case, which has stood the test of time
and has been consistently applied by American courts in various communications cases -
including recent ones in the electronic setting - arose from a police investigation of
robbery. The woman who was robbed gave the police a description of the robber and of
a car she had observed near the scene of the crime. After the robbery, she began
receiving threatening phone calls from a man identifying himself as the robber. The car
was later found to be registered in the name of the petitioner, Smith. The next day, the
telephone company, upon police request, installed a pen register at its central offices to
record the numbers dialled from the telephone at the home of Smith. The register
showed that he had indeed been calling the victim’s house. However, since the
installation of the pen register was done without a warrant, he moved to suppress the
evidence culled from the device. In affirming the warrantless collection and recording
of phone numbers dialled by Smith, the U.S. Supreme Court said:

This claim must be rejected. First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All telephone users realize that they
must “convey” phone numbers to the telephone company, since it is through
telephone company switching equipment that their calls are completed. All
subscribers realize, moreover, that the phone company has facilities for making
permanent records of the numbers they dial, for they see a list of their long-distance
(toll) calls on their monthly bills. x x x.

xxxx

Second, even if petitioner did harbor some subjective expectation that the phone
numbers he dialed would remain private, this expectation is not “one that society is
prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U. S., at 361. This
Court consistently has held that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties. E.g., United States v. Miller, 425
U. S., at 442-444; x x x.[110] (Emphases supplied)

I am of the opinion that this Court may find the ruling in United States v. Forrester,
[111]
 persuasive. In that case, the U.S. 9th Circuit Court of Appeals applied the doctrine
in Smith to electronic communications, and ruled that Internet users have no
expectation of privacy in the to/from addresses of their messages or in the IP addresses
of the websites they visit. According to the decision, users should know that these bits
of information are provided to and used by Internet service providers for the specific
purpose of directing the routing of information. It then emphasized that this
examination of traffic data is “conceptually indistinguishable from government
surveillance of physical mail,” and that the warrantless search of envelope or routing
information has been deemed valid as early as the 19th century. The court therein
held:
We conclude that the [electronic] surveillance techniques the government employed
here are constitutionally indistinguishable from the use of a pen register that the
Court approved in Smith. First, e-mail and Internet users, like the telephone users
in  Smith, rely on third-party equipment in order to engage in
communication. Smith based its holding that telephone users have no expectation of
privacy in the numbers they dial on the users’ imputed knowledge that their calls are
completed through telephone company switching equipment. x x x. Analogously, e-mail
and Internet users have no expectation of privacy in the to/from addresses of their
messages or the IP addresses of the websites they visit because they should know that
this information is provided to and used by Internet service providers for the specific
purpose of directing the routing of information. Like telephone numbers, which
provide instructions to the “switching equipment that processed those numbers,” e-
mail to/from addresses and IP addresses are not merely passively conveyed through
third party equipment, but rather are voluntarily turned over in order to direct the
third party’s servers. x x x.

Second, e-mail to/from addresses and IP addresses constitute addressing information

and do not necessarily reveal any more about the underlying contents of
communication than do phone numbers. When the government obtains the to/from
addresses of a person’s e-mails or the IP addresses of websites visited, it does not find
out the contents of the messages or know the particular pages on the websites the
person viewed. At best, the government may make educated guesses about what was
said in the messages or viewed on the websites based on its knowledge of the e-mail
to/from addresses and IP addresses — but this is no different from speculation about
the contents of a phone conversation on the basis of the identity of the person or entity
that was dialed. x x x. Nonetheless, the Court in Smith and Katz drew a clear line
between unprotected addressing information and protected content information that
the government did not cross here.

The government’s surveillance of e-mail addresses also may be technologically

sophisticated, but it is conceptually indistinguishable from government surveillance of
physical mail. In a line of cases dating back to the nineteenth century, the Supreme
Court has held that the government cannot engage in a warrantless search of the
contents of sealed mail, but can observe whatever information people put on the
outside of mail, because that information is voluntarily transmitted to third parties. x x
x. E-mail, like physical mail, has an outside address “visible” to the third-party carriers
that transmit it to its intended location, and also a package of content that the sender
presumes will be read only by the intended recipient. The privacy interests in these two
forms of communication are identical. The contents may deserve Fourth Amendment
protection, but the address and size of the package do not.[112] (Emphases and
underscoring supplied)

Based on the cogent logic explained above, I share the view that Internet users have no
reasonable expectation of privacy in traffic data per se or in those pieces of information
that users necessarily provide to the ISP, a third party, in order for their communication
to be transmitted. This position is further bolstered by the fact that such communication
passes through as many ISPs as needed in order to reach its intended destination. Thus,
the collection and recording of these data do not constitute a search in the
constitutional sense. As such, the collection thereof may be done without the necessity
of a warrant.
Indeed, Professor Orin Kerr,[113] a prominent authority on electronic privacy, observes
that in the U.S., statutory rather than constitutional protections provide the essential
rules governing Internet surveillance law. He explains that the very nature of the
Internet requires the disclosure of non-content information, not only to the ISP
contracted by the user, but also to other computers in order for the communication to
reach the intended recipient. Professor Kerr explains thus:

Recall that the Fourth Amendment effectively carves out private spaces where law
enforcement can’t ordinarily go without a warrant and separates them from public
spaces where it can. One important corollary of this structure is that when a person
sends out property or information from her private space into a public space, the
exposure to the public space generally eliminates the Fourth Amendment
protection. If you put your trash bags out on the public street, or leave your private
documents in a public park, the police can inspect them without any Fourth
Amendment restrictions.

The Supreme Court’s cases interpreting this so-called “disclosure principle” have

indicated that the principle is surprisingly broad. For example, the exposure need not
be to the public. Merely sharing the information or property with another person
allows the government to go to that person to obtain it without Fourth Amendment
protection. x x x.

Why does this matter to Internet surveillance? It matters because the basic design of
the Internet harnesses the disclosure, sharing, and exposure of information to many
machines connected to the network. The Internet seems almost custom-designed to
frustrate claims of broad Fourth Amendment protection: the Fourth Amendment does
not protect information that has been disclosed to third-parties, and the Internet
works by disclosing information to third-parties. Consider what happens when an
Internet user sends an e-mail. By pressing “send” on the user’s e-mail program, the user
sends the message to her ISP, disclosing it to the ISP, with instructions to deliver it to the
destination. The ISP computer looks at the e-mail, copies it, and then sends a copy
across the Internet where it is seen by many other computers before it reaches the
recipient’s ISP. The copy sits on the ISP’s server until the recipient requests the e-mail;
at that point, the ISP runs off a copy and sends it to the recipient. While the e-mail may
seem like a postal mail, it is sent more like a post card, exposed during the course of
delivery.[114] (Emphases and underscoring supplied.)

Clearly, considering that the Internet highway is so public, and that non-content traffic
data, unlike content data, are necessarily exposed as they pass through the Internet
before reaching the recipient, there cannot be any reasonable expectation of privacy in
non-content traffic data per se.

Traffic data to be
collected are
explicitly limited to
non-content and
non-identifying
public information
which, unlike
content data, are
not constitutionally
protected.

The U.S. Supreme Court and Court of Appeals in the above cases emphasized the
distinction between content and non-content data, with only content data enjoying
privacy protection. In Smith the Court approved of the use of pen registers, pointing out
that “a pen register differs significantly from [a] listening device … for pen registers do
not acquire the contents of communications.”[115] Hence, the information derived from
the pen register, being non-content, is not covered by the constitutional protection.
In  Forrester, it was held that while the content of both e-mail and traditional mail are
constitutionally protected, the non-content or envelope information is not. On the
other hand, in the 2007 case Warshak v. United States,[116] the Sixth Circuit Court of
Appeals held that the contents of emails are protected. It employed the content/non-
content distinction in saying that the “combined precedents of Katz and Smith” required
a “heightened protection for the content of the communications.”[117] Consequently, it
found a strong “content-based privacy interest” in e-mails.[118]

Traffic data are of course explicitly restricted to non-content and non-identifying data
as defined in Section 12 of the Cybercrime Prevention Act itself. As such, it is plain that
traffic data per se are not constitutionally protected.

The distinction between content and non-content data, such as traffic data, is
important because it keeps the balance between protecting privacy and maintaining
public order through effective law enforcement. That is why our Congress made sure to
specify that the traffic data to be collected are limited to non-content data. For good
measure, it additionally mandated that traffic data be non-identifying.

Kerr explains how the distinction between content and non-content information in

electronic communication mirrors perfectly and logically the
established inside and outside distinction in physical space, as far as delineating the
investigative limitations of law enforcers is concerned. Inside space is constitutionally
protected, and intrusion upon it requires a court warrant; in contrast, surveillance
of outside space does not require a warrant because it is not a constitutionally
cognizable search. He explains thus:

Whereas the inside/outside distinction is basic to physical world investigations, the

content/non-content distinction is basic to investigations occurring over
communications networks. Communications networks are tools that allow their users
to send and receive communications from other users and services that are also
connected to the network. This role requires a distinction between addressing
information and contents. The addressing (or “envelope”) information is the data that
the network uses to deliver the communications to or from the user; the content
information is the payload that the user sends or receives.

xxxx

We can see the same distinctions at work with the telephone network. The telephone
network permits users to send and receive live phone calls. The addressing information
is the number dialed (“to”), the originating number (“from”), the time of the call, and its
duration. Unlike the case of letters, this calling information is not visible in the same way
that the envelope of a letter is. At the same time, it is similar to the information derived
from the envelope of a letter. In contrast, the contents are the call itself, the sound sent
from the caller’s microphone to the receiver’s speaker and from the receiver’s
microphone back to the caller’s speaker.

Drawing the content/non-content distinction is somewhat more complicated because

the Internet is multifunctional. x x x. Still, the content/non-content distinction holds in
the Internet context as well. The easiest cases are human-to-human communications
like e-mail and instant messages. The addressing information is the “to” and “from” e-
mail address, the instant message to and from account names, and the other
administrative information the computers generate in the course of delivery. As in the
case of letters and phone calls, the addressing information is the information that the
network uses to deliver the message. In contrast, the actual message itself is the
content of the communication. x x x x

The content/non-content distinction provides a natural replacement for the

inside/outside distinction. To apply the Fourth Amendment to the Internet in a
technologically neutral way, access to the contents of communications should be
treated like access to evidence located inside. Accessing the contents of
communications should ordinarily be a search. In contrast, access to non-content
information should be treated like access to evidence found outside. Collection of this
information should presumptively not be a search.

This translation is accurate because the distinction between content and non-content
information serves the same function online that the inside/outside distinction serves
in the physical world. Non-content information is analogous to outside information; it
concerns where a person is and where a person is going. Consider what the police can
learn by watching a suspect in public. Investigating officers can watch the suspect leave
home and go to different places. They can watch him go to lunch, go to work, and go to
the park; they can watch him drive home; and they can watch him park the car and go
inside. In effect, this is to/from information about the person’s own whereabouts.

On the other hand, content information is analogous to inside information. The

contents of communications reveal the substance of our thinking when we assume no
one else is around. It is the space for reflection and self-expression when we take
steps to limit the audience to a specific person or even just to ourselves. The contents
of Internet communications are designed to be hidden from those other than the
recipients, much like property stored inside a home is hidden from those who do not
live with us. x x x.

The connection between content/non-content on the Internet and inside/outside in

the physical world is not a coincidence. Addressing information is itself a network
substitute for outside information, and contents are a network substitute for inside
information. Recall the basic function of communications networks: they are systems
that send and receive communications remotely so that its users do not have to
deliver or pick up the communications themselves. The non-content information is the
information the network uses to deliver communications, consisting of where the
communication originated, where it must be delivered, and in some cases the path of
delivery. This information is generated in lieu of what would occur in public; it is
information about the path and timing of delivery. In contrast, the contents are the
private communications themselves that would have been inside in a physical
network.

xxxx

In light of this, a technologically neutral way to translate the Fourth Amendment from
the physical world to the Internet would be to treat government collection of the
contents of communications as analogous to the government collection of information
inside and the collection of non-content information as analogous to the collection of
information outside. x x x.

This approach would mirror the line that the Fourth Amendment imposes in the
physical world. In the physical world, the inside/outside distinction strikes a sensible
balance. It generally lets the government observe where people go, when they go, and
to whom they are communicating while protecting the actual substance of their
speech from government observation without a warrant unless the speech is made in
a setting open to the public. The content/non-content distinction preserves that
function. It generally lets the government observe where people go in a virtual sense,
and to observe when and with whom communications occur. The essentially
transactional information that would occur in public in a physical world has been
replaced by non-content information in a network environment, and the content/non-
content line preserves that treatment. At the same time, the distinction permits
individuals to communicate with others in ways that keep the government at bay. The
Fourth Amendment ends up respecting private areas where people can share their most
private thoughts without government interference both in physical space and
cyberspace alike.[119] (Emphases supplied.)

Indeed, there is a clear distinction between content and non-content data. The
distinction presents a reasonable conciliation between privacy guarantees and law
enforcement needs, since the distinction proceeds from logical differences between the
two in their nature and privacy expectations. According to a comprehensive UN study
on six international or regional cybercrime instruments,[120] which include provisions on
real-time collection of computer data, these instruments “make a distinction between
real-time collection of traffic data and of content data” to account for the “differences in
the level of intrusiveness into the private life of persons subject to each of the
measures.”[121]

From the above jurisprudence and scholarly analysis, there is enough basis to conclude
that, given the very public nature of the Internet and the nature of traffic data as non-
content and non-identifying information, individuals cannot have legitimate
expectations of privacy in traffic data per se.

Section 12, however,

suffers from lack of
procedural
safeguards to ensure
that the traffic data
to be obtained are
limited to non-
content and non-
identifying data, and
that they are
obtained only for the
limited purpose of
investigating specific
instances of
criminality.

Thus far, it has been shown that real-time collection of traffic data may be indispensable
in providing a crucial first lead in the investigation of criminality. Also, it has been
explained that there is clearly no legitimate expectation of privacy in traffic data per
se because of the nature of the Internet - it requires disclosure of traffic data which,
unlike content data, will then travel exposed as it passes through a very public
communications highway. It has also been shown that the definition of traffic data
under the law is sufficiently circumscribed to cover only non-content and non-
identifying data and to explicitly exclude content data. This distinction is important in
protecting privacy guarantees while supporting law enforcement needs.

However, Section 12 suffers from a serious deficiency. The narrow definition of traffic
data per se as non-content and non-identifying data is not supported by equally narrow
procedural criteria for the exercise of the authority to obtain them. The government
asserts that Section 12 provides for some protection against abuse. While this may be
true, the safeguards provided are not sufficient to protect constitutional guarantees.

Firstly, the provision does not indicate what the purpose of the collection would be,
since it only provides for “due cause” as a trigger for undertaking the activity. While the
government has explained the limited purpose of the collection of traffic data, which
purportedly can only go as far as providing an initial lead to an ongoing criminal
investigation primarily in the form of an IP address, this limited purpose is not explicit in
the assailed provision. Moreover, there is no assurance that the collected traffic data
would not be used for preventive purposes as well. Notably, the Solicitor-General
defines “due cause” as “good faith law enforcement reason”[122] or “when there’s a
complaint from a citizen that cybercrime has been committed.” According to the
Solicitor General this situation is “enough to trigger” a collection of traffic data.
[123]
 However, during the oral arguments, the Solicitor General prevaricated on whether
Section 12 could also be used for preventive monitoring. He said that there might be
that possibility, although the purpose would “largely” be for the investigation of an
existing criminal act.[124] This vagueness is disconcerting, since a preventive monitoring
would necessarily entail casting a wider net than an investigation of a specific instance
of criminality would. Preventive monitoring would correspondingly need more
restrictive procedural safeguards. This failure to provide an unequivocally specified
purpose is fatal because it would give the government the roving authority to obtain
traffic data for any purpose.[125]

Secondly, Section 12 does not indicate who will determine “due cause.” This failure to
assign the determination of due cause to a specific and independent entity opens the
floodgates to possible abuse of the authority to collect traffic data in real-time, since the
measure will be undertaken virtually unchecked. Also, while Section 12 contemplates
the collection only of data “associated with specified communications,” it does not
indicate who will make the specification and how specific it will be.

Finally, the collection of traffic data under Section 12 is not time-bound. This lack of
limitation on the period of collection undoubtedly raises concerns about the possibility
of unlimited collection of traffic data in bulk for purposes beyond the simple
investigation of specific instances of criminality.

Existing approaches
in other jurisdictions
for collection of
traffic data

To foreclose an Orwellian collection of traffic data in bulk that may lead to the invasion
of privacy, the relevant law must be canalized to accommodate only an acceptable
degree of discretion to law enforcers. It must provide for clear parameters and robust
safeguards for the exercise of the authority. Notably, the Solicitor General himself has
observed that stronger safeguards against abuse by law enforcers may have to be put in
place.[126] There are also indications that the legislature is willing to modify the law to
provide for stronger safeguards, as shown in the bills filed in both chambers of
Congress.[127]

In fashioning procedural safeguards against invasion of privacy, the rule of thumb

should be: the more intrusive the activity, the stricter the procedural safeguards. Other
countries have put in place some restrictions on the real-time collection of traffic data in
their jurisdictions. In the United States, the following are the requirements for the
exercise of this authority:

(1) relevance of the collected information to an ongoing criminal investigation;

(2) court order issued by a judicial officer based upon the certification of a government
attorney; and
(3) limitation of the period of collection to sixty days (with the possibility of extension).

In the United Kingdom, the following requirements must be complied with:

(1) necessity of the information to be collected for the investigation of crime, protection

of public safety, or a similar goal;
(2) approval of a high-level government official;
(3) proportionality of the collection to what is sought to be achieved; and
(4) limitation of the period of collection to thirty days.[128]

The above requirements laid down by two different jurisdictions offer different but
similar formulations. As to what the triggering threshold or purpose would be, it could
be the necessity threshold (for the investigation of crime, protection of public safety, or
a similar goal) used in the United Kingdom or the relevance threshold (to an ongoing
criminal investigation) in the United States. Note that these thresholds do not amount
to probable cause.
As to who determines compliance with the legal threshold that triggers the exercise of
the authority to collect traffic data in real time, the laws of the United States suggest
that special judicial intervention is required. This intervention would be a very strong
measure against the violation of privacy even if the judicial order does not require
determination of probable cause. At the same time, however, the general concern of
Justice Brion that “time is of the utmost essence in cyber crime law enforcement” needs
to be considered. Hence, procedural rules of court will have to be adjusted so as not to
unduly slow down law enforcement response to criminality considering how ephemeral
some information could be. We must ensure that these rules are not out of step with
the needs of law enforcement, given current technology. It may be noted that Justice
Carpio has broached the idea of creating 24-hour courts to address the need for speedy
law enforcement response.[129]

In the United Kingdom, the mechanism suggests that the authorizing entity need not be
a judge, as it could be a high-ranking government official. Perhaps this non-judicial
authorization proceeds from the consideration that since the triggering threshold is not
probable cause, but only necessity to an ongoing criminal investigation, there is no need
for a judicial determination of compliance with the aforesaid threshold.

The above requirements also provide limits on the period of collection of traffic data. In
the United States, the limit is 60 days with a possibility of extension. This period and the
possibility of extension are similar to those provided under our Anti-Wiretapping Law.
Note, however, that the Anti-Wiretapping Law concerns the content of communications
whereas the traffic data to be collected under Section 12 of the Cybercrime Prevention
Act is limited to non-content and non-identifying data. Hence, the restriction on the
period of collection could perhaps be eased by extending it to a longer period in the
case of the latter type of data. In the United Kingdom, the limit is 30 days.

From the above observation of the deficiencies of Section 12, as well as the samples
from other jurisdictions, the following general guidelines could be considered to
strengthen the safeguards against possible abuse.

First, the relevance or necessity of the collection of traffic data to an ongoing criminal
investigation must be established. This requirement to specify the purpose of the
collection (to aid ongoing criminal investigation) will have the effect of limiting the usage
of the collected traffic data to exclude dossier building, profiling and other purposes not
explicitly sanctioned by the law. It will clarify that the intention for the collection of
traffic data is not to create a historical data base for a comprehensive analysis of the
personal life of an individual whose traffic data is collected, but only for investigation of
specific instances of criminality. More important, it is not enough that there be an
ongoing criminal investigation; the real-time collection must be shown to be necessary
or at least relevant to the investigation. Finally, it should be explicitly stated that the
examination of traffic data will not be for the purpose of preventive monitoring which,
as observed earlier, would necessarily entail a greater scope than that involved in a
targeted collection of traffic data for the investigation of a specific criminal act.

Second, there must be an independent authority - judicial or otherwise - who shall

review compliance with the relevance and necessity threshold. The designation of this
authority will provide additional assurance that the activity will be employed only in
specific instances of criminal investigation and will be necessary or relevant. The
designation of an authorizing entity will also inhibit the unjustified use of real-time
collection of traffic data. The position of this person should be sufficiently high to ensure
greater accountability. For instance, it was suggested during the oral arguments that the
authorizing person be a lawyer of the national government in order to additionally
strengthen that person’s accountability, proceeding as it would from his being an officer
of the court.[130]

Third, there must be a limitation on the period of collection. The restriction on the

time period will further prevent the indiscriminate and bulk collection of traffic data
beyond what is necessary for a regular criminal investigation.

As to the type of technology to be used for collection, it seems that this cannot be
specified beforehand. Certainly, only a general restriction can be made – that the
technology should be capable of collecting only non-content and non-identifying traffic
data. It should not be able to directly point to the location of the users of the Internet,
the websites visited, the search words used, or any other data that reveal the thoughts
of the user.

In the end, whatever mechanism is to be set in place must satisfy the Constitution’s
requirements for the safeguard of the people’s right to privacy and against undue
incursions on their liberties.

Final Words

Laws and jurisprudence should be able to keep current with the exponential growth in
information technology.[131] The challenge is acute, because the rapid progress of
technology has opened up new avenues of criminality. Understandably, governments
try to keep pace and pursue criminal elements that use new technological avenues. It is
precisely during these times of zeal that the Court must be ever ready to perform its
duty to uphold fundamental rights when a proper case is brought before it.

The Court has carefully trod through the issues that have been heard in these Petitions,
especially since they involve the exercise of our power of judicial review over acts of the
legislature. I believe that we have tried to exercise utmost judicial restraint and
approached the case as narrowly as we could so as to avoid setting sweeping and
overreaching precedents.[132] We have thus prudently resolved the present Petitions
with the view in mind that a future re-examination of the law is still possible,
[133]
 especially when the constitutional challenges set forth become truly ripe for
adjudication. This is also so that we do not unduly tie the hands of the government
when it regulates socially harmful conduct in the light of sudden changes in technology,
especially since the regulation is meant to protect the very same fundamental rights
that petitioners are asking this Court to uphold.

However, we have also not hesitated to strike down as unconstitutional those

regulatory provisions that clearly transgress the Constitution and upset the balance
between the State’s inherent police power and the citizen’s fundamental rights. After
all, the lofty purpose of police power is to be at the loyal service of personal freedom.

WHEREFORE, I join the ponencia in resolving to leave the determination of the correct

application of Section 7 to actual cases, except as it is applied to libel. Charging an
offender both under Section 4(c)(4) of the Cybercrime Prevention Act and under Article
353 of the Revised Penal Code violates the guarantee against double jeopardy and
is VOID and UNCONSTITUTIONAL for that reason.

Moreover, I join in declaring the following as UNCONSTITUTIONAL:

1. Section 4(c)(4), insofar as it creates criminal liability on the part of persons who
receive a libelous post and merely react to it ;
2. Section 12, insofar as it fails to provide proper safeguards for the exercise of the
authority to collect traffic data in real time;
3. Section 19, also insofar as it fails to provide proper standards for the exercise of
the authority to restrict or block access to computer data.

However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it applies to

Section 4(c)(4), for unduly curtailing freedom of speech.

As regards the remaining assailed provisions, I vote to DISMISS the Petitions for failure
to establish that a pre-enforcement judicial review is warranted at this time.

[1]
 Isagani A. Cruz, Constitutional Law, 1 (2000).

[2]
 See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA
579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, 19 March
2013; Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, 15
February 2011, 643 SCRA 198; Francisco v. House of Representatives, 460 Phil. 830
(2003); Demetria v. Alba, 232 Phil. 222 (1987).
[3]
 Constitution, Art. VIII, Sec. 2(a).
[4]
 5 U.S. 137 (1803).
[5]
 Francisco v. House of Representatives, supra note 2 (citing U.S. v. Ang Tang Ho, 43 Phil
1 [1922]; McDaniel v. Apacible, 42 Phil 749 [1922] Concepcion v. Paredes, 42 Phil 599
[1921];  In re Prautch, 1 Phil. 132 [1902]; and Casanovas v. Hord, 8 Phil 125 [1907]).
[6]
 Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).
[7]
 Francisco v. House of Representatives, supra note 2; Gutierrez v. House of
Representatives Committee on Justice, supra note 2; Constitution, Art. VIII, Sec. 1.
[8]
 Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809.
[9]
 Francisco v. House of Representatives, supra note 2; Tañada v. Angara, 338 Phil. 546
(1997); Oposa v. Factoran, supra (citing Llamas v. Orbos, 279 Phil. 920 [1991]; Bengzon
v. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]); Gonzales v. Macaraig, 191
SCRA 452 [1990]; Coseteng v. Mitra, 187 SCRA 377 [1990]; Daza v. Singson, 259 Phil. 980
[1989]; and I Record, Constitutional Commission 434-436 [1986]).
[10]
 See: Francisco v. House of Representatives, supra note 2; United States v. Raines, 362
U.S. 17 (1960); and Angara v. Electoral Commission, supra note 6.
[11]
  Morfe v. Mutuc, 130 Phil. 415 (1968);  Angara v. Electoral Commission, supra.
[12]
 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450
(2008) (citing Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329
[2006]; and Regan v. Time, Inc., 468 U. S. 641, 652 [1984].
[13]
 Supra note 2.
[14]
 Supra note 2, at 922-923.
[15]
  Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
[16]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, 5 October 2010, 632 SCRA 146; David v. Macapagal-Arroyo, 522 Phil. 705, 753
(2006); Francisco v. House of Representatives, supra note 2, at 923-924; Angara v.
Electoral Commission, supra note 6.
[17]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra.
[18]
 Information Technology Foundation of the Philippines v. Commission on Elections, 499
Phil. 281 (2005) (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227
[1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra;  David v. Macapagal-Arroyo, supra note 16; Francisco v. House of
Representatives, supra note 2; Angara v. Electoral Commission, supra note 6.
[19]
  Lozano v. Nograles, G.R. Nos. 187883 & 187910, 16 June 2009, 589 SCRA 356.
[20]
 Information Technology Foundation of the Philippines v. Commission on Elections,
supra note 18; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra; Lozano v. Nograles, supra.
[21]
 Angara v. Electoral Commission, supra note 6, at 158-159.
[22]
 Vicente V. Mendoza, Judicial Review of Constitutional Questions: Cases and Materials
91 (2nd Ed. 2013) (Mendoza) (citing Paul A. Freund, “The Supreme Court,” in Talks on
American Law 81 [H. J. Berman Rev. Ed. 1972]).
[23]
 Paul A. Freund, “The Supreme Court,” in Talks on American Law 81 (H. J. Berman Rev.
Ed. 1972) (quoted in Mendoza, supra)
[24]
 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16.
[25]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16.
[26]
 Nevertheless, we ultimately found that the petitioners therein failed to show their
entitlement to a pre-enforcement judicial review of the Human Security Act of
2007. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16 (quoting Holder v. Humanitarian Law Project, 561 U.S. [unpaginated]
[2010]); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); See also: Babbitt v.
United Farm Workers National Union, 442 U.S. 289 (1979); Doe v. Bolton, 410 U.S. 179,
188-189 (1973) (citing Epperson v. Arkansas, 393 U.S. 97 [1968]);
[27]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16.
[28]
 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16; De Castro v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA
579 (citing Buckley v. Valeo, 424 U.S. 1, 113-118 [1976]; Regional Rail Reorganization
Act Cases, 419 U.S. 102, 138-148 [1974]); Holder v. Humanitarian Law Project, 561 U.S.
1 (2010); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); Babbitt v. United
Farm Workers National Union, 442 U.S. 289 (1979) (citing Regional Rail Reorganization
Act Cases, 419 U.S. 102 [1974]; Steffel v. Thompson, 415 U.S. 452 [1974]; O’Shea v.
Littleton, 414 U.S. 488 [1974]; Doe v. Bolton, 410 U.S. 179 [1973]; Younger v. Harris, 401
U.S. 37 [1971]; Golden v. Zwickler, 394 U.S. 103 [1969]; Epperson v. Arkansas, 393 U.S.
97 [1968]; Evers v. Dwyer, 358 U.S. 202 [1958]; Pierce v. Society of Sisters, 268 U.S. 510
[1925]; Pennsylvania v. West Virginia, 262 U.S. 553 [1923]).
[29]
 G.R. No. 203325, Jose Jesus M. Disini, Jr. v. The Secretary of Justice.
[30]
 See Petition of Disini (G.R. No. 203335), pp. 22-23, 26-27; Petition of Reyes (G.R. No.
203407), p. 25; Petition of Castillo, (G.R. No. 203454), pp. 10-11; Petition of Cruz (G.R.
No. 203469), pp. 39-40; Petition of Philippine Internet Freedom Alliance (G.R. No.
203518), p. 9.
[31]
 See Petition of Adonis (G.R. No. 203378), p. 29; Petition of Sta. Maria (G.R. No.
203440), p. 22; Petition of Cruz (G.R. No. 203469), pp. 60-61; Petition of Philippine Bar
Association (GRN 203501), p. 19; Petition of Colmenares (G.R. No. 203509), p. 15;
Petition of National Press Club of the Philippines (G.R. No. 203515), pp. 16-17.
[32]
 See Petition of Adonis (G.R. No. 203378), p. 33; Petition of National Union of
Journalists of the Philippines (G.R. No. 203453), p. 11; Petition of National Press Club of
the Philippines (G.R. No. 203515), p. 9; Petition of Philippine Internet Freedom Alliance
(G.R. No. 203518), pp. 47-48; Petition of Philippine Bar Association (GRN 203501), p. 19.
[33]
 See Petition of Disini (G.R. No. 203335), pp. 10-12.
[34]
 Petition of Disini (G.R. No. 203335), pp. 10-12.
[35]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16 (citing David v. Macapagal-Arroyo, supra note 16; Romualdez v. Commission on
Elections, 576 Phil. 357 (2008).
[36]
  Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, supra note 16.
[37]
 Id.
[38]
  See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R.
No. 178552, supra note 16.
[39]
 Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep.
Op. of J. Mendoza], 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; Ashwander v.
Tennessee Valley Authority, 297 U.S. 288 [1936]).
[40]
  Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16;  David v. Macapagal-Arroyo, supra note 16.
[41]
 G.R. No. 95770, 1 March 1993, 219 SCRA 256.
[42]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16; David v. Macapagal-Arroyo, supra note 16; Estrada v. Sandiganbayan, 421 Phil. 290
(2001).
[43]
 Id.
[44]
 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008) (citing Sabri v. United States, 541 U. S. 600, 609 [2004]).
[45]
 Petition of Disini, pp. 9-10. The computation of the imposable penalty in the Petition
seems to be erroneous. Insofar as the crime of libel is concerned, I have discussed below
that the imposable penalty in libel qualified by the use of ICT should be prisión
correccional in its maximum period to prisión mayor in its minimum period.
[46]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16.
[47]
 The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).
[48]
 Ramon C. Aquino, The Revised Penal Code – Vol. 1, 3 (1961) (Aquino).
[49]
 Id.
[50]
  See Aquino, at 8-11.
[51]
 Id. at 277; Luis B. Reyes, The Revised Penal Code – Criminal Law, Book One, 328
(2008) (Reyes).
[52]
  People v. Lab-eo, 424 Phil. 482 (2002); Reyes, supra.
[53]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra, at
705-706 (2008);  Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA
245.
[54]
 See: Jalosjos v. Commission on Elections, G.R. Nos. 193237 and 193536, 9 October
2012, 683 SCRA 1 (citing Lacuna v. Abes, 133 Phil. 770, 773-774 [1968]); Aratea v.
Commission on Elections, G.R. No. 195229, 9 October 2012, 683 SCRA 105.
[55]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note
51, at 705-706; cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
[56]
 Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v.
Mutia, 241 Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).
[57]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note
51, at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
[58]
 Probation Law, Sec. 4.
[59]
 Moreno v. Commission on Elections, G.R. No. 168550, 10 August 2006, 498 SCRA 547.
[60]
 Baclayon v. Mutia, 241 Phil. 126 (1984).
[61]
 See generally: Monsanto v. Factoran, G.R. No. 78239, 9 February 1989, 170 SCRA.
[62]
 Aquino, supra note 48, at 695-696 (citing People v. Montenegro, 68 Phil 659
[1939]; People v. Moran, 44 Phil. 387, 433 [1923]; Santos v. Superintendent, 55 Phil. 345
[1930]).
[63]
 Id.
[64]
 Id.
[65]
 Id.
[66]
 Id.
[67]
 Id.
[68]
 Id.
[69]
 Reyes, supra note 51, at 845.
[70]
  See also  TSN dated 15 January 2013, pp. 80-81.
[71]
 Senate Transcript of the Bicameral Conference Committee on the Disagreeing
Provisions of SBN 2796 and HBN 5808 (Cybercrime Prevention Act of 2012) (31 May
2012) 15th Congress, 2nd Regular Sess. at 43-47, 52-56 [hereinafter Bicameral
Conference Committee Transcript].
[72]
 Aquino, supra note 48, at 277 (citing People v. Bayot, 64 Phil. 269 [1937]).  See
also Vicente J. Francisco, The Revised Penal Code: Annotated and Commented, Book I,
414 (2nd Ed. 1954).
[73]
 Leonor D. Boado, Notes And Cases On The Revised Penal Code, 147 (2008)
[74]
 Id. at 146.
[75]
 Aquino, supra note 48, at 277.
[76]
 Quinto v. COMELEC, G.R. No. 189698, 22 February 2010 (citing Broadrick v.
Oklahoma 413 U.S. 601, 93 S.Ct. 2908 [1973]).
[77]
 321 Phil. 279 (1995).
[78]
 Id., at 346.
[79]
 Undersecretary of the Department of Justice Ernesto L. Pineda sent a letter to the
Secretary General of the Council of Europe dated 31 August 2007, expressing the wish of
the Philippine government to be invited to accede to the Convention on Cybercrime.
The Council of Europe granted the request in 2008. See Decision of the Council of
Europe on the Request by the Philippines to be invited to accede to the Convention on
Cybercrime, 1021st Meeting of the Ministers’ Deputies, dated 12 March 2008. Available
at , accessed on 12 September 2013.
[80]
 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281;
Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
[81]
 Jonathan Clough, Principles of Cybercrime, 22 (2010);
[82]
 Id.
[83]
 , accessed on 20 October 2013.
[84]
 Twenty-eight of COE’s members also belong to the European Union (EU). All its
member states have signed up to the European Convention on Human Rights, a treaty
designed to protect human rights, democracy and the rule of law. accessed on 20
October 2013.
[85]
 Canada, Japan, South Africa, and the United States.
[86]
 accessed on 20 October 2013.
[87]
 Supra note 28.
[88]
 Sumit ghosh et al., Editors, Cybercrimes: A Multidisciplinary Analysis, 330 (2010).
[89]
 Id. at 330-331.
[90]
 Id. at 331.
[91]
 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281;
Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
[92]
 Explanatory Report to the Convention on Cybercrime, [2001] COETSER 8 (23
November 2001), available at , accessed on 12 September 2013.
[93]
 Richard W. Downing. Columbia Journal of Transnational Law, Vol. 43, p. 743 (2005).
[94]
 Id.
[95]
 Id.
[96]
 United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime
(Draft), 130 (2013).
[97]
 Id.
[98]
 Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, 162 (2003).
[99]
 Tan v. Sy Tiong Gue, G.R. No. 174570, 17 February 2010, 613 SCRA 98, 106;
[100]
 Supra note 1 at 163, citing Brinegar v. United States, 338 U.S. 160, 175 (1949)
[101]
 Supra note 44.
[102]
 Id.
[103]
 See: United States v. Jones 132 S. Ct. 945, 950 n.3 (2012).
[104]
 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People
v. Johnson, 401 Phil 734 (2000).
[105]
 389 U.S. 347 (1967).
[106]
 Id.
[107]
 Supra note 104.
[108]
 Id.
[109]
 442 U.S. 735 (1979).
[110]
 Supra note 55.
[111]
 512 F.3d 500 (2007).
[112]
 512 F.3d 500 (2007).
[113]
 Fred C. Stevenson Research Professor, George Washington University Law School.
[114]
 Orin S. Kerr, Enforcing Privacy Rights: Communications Privacy: Lifting the “Fog” of
Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law,
54 Hastings L.J. 805 (2003).
[115]
 442 U.S. 735 (1979).
[116]
 490 F.3d 455, 470-71 (6th Cir. 2007).
[117]
 Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. &
Mary L. Rev. 2105, 2115 (2009).
[118]
 Id. The Sixth Circuit later granted a petition for rehearing en banc and skirted the
constitutional issue. It vacated the Decision upon a finding that the case was unripe.
[119]
 Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach,
62 Stan. L. Rev. 1005 (2010).
[120]
 These are: 1.) COMESA Draft Model Bill, Art. 38; 2.) Commonwealth Model Law, Art.
19; 3.) Council of Europe Cybercrime Convention, Art. 20; 4.) ITU/CARICOM/CTU Model
Legislative Texts, Art. 25; 5.) League of Arab States Convention, Art. 28 and 6.) Draft
African Union Convention, Art. 3-55.
[121]
 United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime
(Draft), 130 (2013).
[122]
 TSN dated 29 January 2013, p. 49.
[123]
 Id at 86.
[124]
 Id at 95-96.
[125]
 Ople v. Torres, 354 Phil. 948 (1998).
[126]
 TSN dated 29 January 2013, p. 48.
[127]
  See Senate Bill (SB) No. 126, “An Act Repealing Section 4(c) (4), Chapter II of
Republic Act No. 10175”; SB No. 11, “An Act Amending Section 6 of Republic Act 10175
Otherwise Known as an Act Defining Cybercrime, Providing For the Prevention,
Investigation and Imposition of Penalties Therefor and For Other Purposes”; SB No. 154,
“An Act Amending Republic Act No. 10175, Otherwise Known as the Cybercrime
Prevention Act of 2012”; SB No. 249, “An Act Repealing Sections 4 (c) (4), 5, 6, and 7 of
RA 10175, Otherwise Known as the Cybercrime Prevention Act of 2012”; SB Nos 53 and
1091 and House Bill (HB) No. 1086 or the Magna Carta for Philippine Internet Freedom;
HB No. 1132, “An Act Repealing Republic Act No. 10175 or the Cybercrime Prevention
Act of 2012.”
[128]
 Richard W. Downing, Shoring up the Weakest Link: What Lawmakers around the
World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime, 43
Colum. J. Transnat’l L. 705 (2005).
[129]
 TSN dated 29 January 2013, p. 50.
[130]
 TSN dated 29 January 2013, p. 92.
[131]
 Ray Kurzweil, The Age of Spiritual Machines: When Computers Exceed Human
Intelligence, 13 (1999); Ray Kurzweil, The Law of Accelerating Returns, 7 March 2001,
available at , accessed on 29 September 2013.
[132]
  See: Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto,
[Sep. Op. of J. Mendoza] 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2;
and Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).
[133]
  See: Republic v. Roque, G.R. No. 204603, 24 September 2013.
 CONCURRING AND DISSENTING OPINION

[C]orporations of all shapes and sizes track what you buy, store and analyze our data,
and use it for commercial purposes; that’s how those targeted ads pop up on your
computer or smartphone. But all of us understand that the standards for government
surveillance must be higher. Given the unique power of the state, it is not enough for
leaders to say: trust us, we won’t abuse the data we collect. For history has too many
examples when that trust has been breached. Our system of government is built on the
premise that our liberty cannot depend on the good intentions of those in power; it
depends upon the law to constrain those in power. [1]

 President Barack Obama

17 January 2014, on National
Security Agency Reforms

CARPIO, J.:

I concur in striking down as unconstitutional Section 4(c)(3), Section 7, Section 12, and
Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing unsolicited commercial
speech; (2) allowing multiple prosecutions post-conviction under RA 10175; (3)
authorizing the warrantless collection in bulk of traffic data; and (4) authorizing the
extrajudicial restriction or blocking of access to computer data, respectively, for being
violative of the Free Speech, Search and Seizure, Privacy of Communication, and Double
Jeopardy Clauses.

I dissent, however, from the conclusion that (1) Article 354 of the Revised Penal Code
(Code) creating the presumption of malice in defamatory imputations, and (2) Section
4(c)(1) of RA 10175 penalizing “cybersex,” are not equally violative of the constitutional
guarantees of freedom of speech and expression. I therefore vote to declare Article 354
of the Code, as far as it applies to public officers and public figures, and Section 4(c)(1)
of RA 10175, unconstitutional for violating Section 4, Article III of the Constitution.

Article 354 of the Code Repugnant to the Free Speech Clause

Article 354’s Presumption of Malice

Irreconcilable with Free Speech Jurisprudence
On Libel of Public Officers and Public
Figures

Article 4(c)(4) of RA 10175 impliedly re-adopts Article 354 of the Code without any
qualification. Article 354 took effect three years[2] before the ratification of the 1935
Constitution that embodied the Free Speech Clause.[3] Unlike most of the provisions of
the Code which are derived from the Spanish Penal Code of 1870, Article 354 is based
on legislation[4] passed by the Philippine Commission during the American occupation.
Nevertheless, Article 354 is inconsistent with norms on free speech and free expression
now prevailing in both American and Philippine constitutional jurisprudence.

Article 354 provides as follows:

Requirement for publicity. — Every defamatory imputation is presumed to be malicious,

even if it be true, if no good intention and justifiable motive for making it is shown,
except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions. (Italicization supplied)

While the text of Article 354 has remained intact since the Code’s enactment in 1930,
constitutional rights have rapidly expanded since the latter half of the last century,
owing to expansive judicial interpretations of broadly worded constitutional guarantees
such as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S.
Supreme Court protective of the rights to free speech, free expression and free press
found their way into local jurisprudence, adopted by this Court as authoritative
interpretation of the Free Speech Clause in the Philippine Bill of Rights. One such
doctrine is the New York Times actual malice rule, named after the 1964 case in which it
was crafted, New York Times v. Sullivan.[5]

New York Times broadened the mantle of protection accorded to communicative

freedoms by holding that the “central meaning” of the Free Speech Clause is the
protection of citizens who criticize official conduct even if such criticism is defamatory
and false. True, the defamed public official may still recover damages for libel. However,
as precondition for such recovery, New York Times laid down a formidable evidentiary
burden[6] – the public official must prove that the false 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.”[7]

The broad protection New York Times extended to communicative rights of citizens and

the press vis-à-vis the conduct of public officials was grounded on the theory that
“unfettered interchange of ideas for the bringing about of political and social changes
desired by the people”[8] is indispensable in perfecting the experiment of self-
governance. As for erroneous statements, the ruling considered them “inevitable in free
debate, and that [they] must be protected if the freedoms of expression are to have the
‘breathing space’ that they need x x x to survive.”[9] The actual malice doctrine was later
made applicable to public figures.[10]

Six years after New York Times became U.S. federal law in 1964, this Court took note of
the actual malice doctrine as part of a trend of local and foreign jurisprudence enlarging
the protection of the press under the Free Speech Clause.[11] Since then, the Court has
issued a steady stream of decisions applying New York Times as controlling doctrine to
dismiss civil[12] and criminal[13] libel complaints filed by public officers or public figures. As
Justice Teehankee aptly noted:

The Court has long adopted the criterion set forth in the U.S. benchmark case of New
York Times Co. vs. Sullivan that “libel can claim no talismanic immunity from
constitutional limitations” that protect the preferred freedoms of speech and
press. Sullivan laid down the test of actual malice, viz. “(T)he constitutional guaranty of
freedom of speech and press prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’ that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.” x x x.[14]

Indeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment
jurisprudence, it too has become interwoven into our own understanding of the Free
Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.[15]

The actual malice rule enunciates three principles, namely:

1) Malice is not presumed even in factually false and defamatory statements against

public officers and public figures; it must be proven as a fact for civil and criminal
liability to lie;
2) Report on official proceedings or conduct of an officer may contain fair comment,
including factually erroneous and libelous criticism; and
3) Truth or lack of reckless disregard for the truth or falsity of a defamatory
statement is an absolute defense against public officers and public figures.
In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates
on the following principles:

1) Malice is presumed in every defamatory imputation, even if true (unless good

intention and justifiable motives are shown);
2) Report on official proceedings or conduct of an officer must be made without
comment or remarks, or, alternatively, must be made without malice;[16] and
3) In defamatory allegations made against a public official, truth is a defense only if the
imputed act or omission constitutes a crime or if the imputed act or omission relates
 to official duties.[17]
The actual malice rule and Article 354 of the Code impose contradictory rules on (1) the
necessity of proof of malice in defamatory imputations involving public proceedings or
conduct of a public officer or public figure; and (2) the availability of truth as a defense
in defamatory imputations against public officials or public figures. The former requires
proof of malice and allows truth as a defense unqualifiedly, while the latter presumes
malice and allows truth as a defense selectively. The repugnancy between the actual
malice rule and Article 354 is clear, direct and absolute.

Nonetheless, the Office of the Solicitor General (OSG) argues for the retention of Article
354 in the Code, suggesting that the Court can employ a “limiting construction” of the
provision to reconcile it with the actual malice rule.[18] The ponencia appears to agree,
holding that the actual malice rule “impl[ies] a stricter standard of ‘malice’ x x x where
the offended party is a [public officer or] public figure,” the “penal code and, implicitly,
the cybercrime law mainly target libel against private persons.”[19]

Allowing a criminal statutory provision clearly repugnant to the Constitution, and

directly attacked for such repugnancy, to nevertheless remain in the statute books is a
gross constitutional anomaly which, if tolerated, weakens the foundation of
constitutionalism in this country. “The Constitution is either a superior, paramount law,
x x x or it is on a level with ordinary legislative acts,”[20] and if it is superior, as we have
professed ever since the Philippines operated under a Constitution, then “a law
repugnant to the Constitution is void.”[21]

Neither does the ponencia’s claim that Article 354 (and the other provisions in the Code
penalizing libel) “mainly target libel against private persons” furnish justification to let
Article 354 stand. First, it is grossly incorrect to say that Article 354 “mainly target[s]
libel against private persons.” Article 354 expressly makes reference to news reports of
“any judicial, legislative or other official proceedings” which necessarily involve public
officers as principal targets of libel. Second, the proposition that this Court ought to
refrain from exercising its power of judicial review because a law is constitutional when
applied to one class of persons but unconstitutional when applied to another class is
fraught with mischief. It stops this Court from performing its duty,[22] as the highest
court of the land, to “say what the law is” whenever a law is attacked as repugnant to
the Constitution. Indeed, it is not only the power but also the duty of the Court to
declare such law unconstitutional as to one class, and constitutional as to another, if
valid and substantial class distinctions are present.

Undoubtedly, there is a direct and absolute repugnancy between Article 354, on one
hand, and the actual malice rule under the Free Speech Clause, on the other hand.
Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification, giving
rise to a clear and direct conflict between the re-adopted Article 354 and the Free
Speech Clause based on prevailing jurisprudence. It now becomes imperative for this
Court to strike down Article 354, insofar as it applies to public officers and public figures.

The ramifications of thus striking down Article 354 are: (1) for cases filed by public
officers or public figures, civil or criminal liability will lie only if the complainants prove,
through the relevant quantum of proof, that the respondent made the false defamatory
imputation with actual malice, that is, with knowledge that it was false or with reckless
disregard of whether it was false or not; and (2) for cases filed by private individuals, the
respondent cannot raise truth as a defense to avoid liability if there is no good intention
and justifiable motive.

Section 4(c)(1) Fails Strict Scrutiny

Section 4(c)(1) which provides:

Cybercrime Offenses. — The following acts constitute the offense of cybercrime

punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.

is attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No.

203378 contend that Section 4(c)(1) sweeps in protected online speech such as “works
of art that depict sexual activities” which museums make accessible to the public for a
fee.[23] Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in
G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section 4(c)
(1) “encompasses even commercially available cinematic films which feature adult
subject matter and artistic, literary or scientific material and instructional material for
married couples.”[24]

The OSG counters that Section 4(c)(1) does not run afoul with the Free Speech Clause
because it merely “seeks to punish online exhibition of sexual organs and activities or
cyber prostitution and white slave trade for favor or consideration.”[25] It adds that
“publication of pornographic materials in the internet [is] punishable under Article 201
of the Revised Penal Code x x x which has not yet been declared
unconstitutional.”[26] The ponencia agrees, noting that the “subject” of Section 4(c)(1) is
“not novel” as it is allegedly covered by two other penal laws, Article 201 of the Code
and Republic Act No. 9208 (The Anti-Trafficking in Persons Act of 2003 [RA 9208]).
The ponencia rejects the argument that Section 4(c)(1) is overbroad because “it stands a
construction that makes it apply only to persons engaged in the business of maintaining,
controlling, or operating x x x the lascivious exhibition of sexual organs or sexual activity,
with the aid of a computer system.”[27]

The government and the ponencia’s position cannot withstand analysis.

As Section 4(c) of RA 10175 itself states, the crimes defined under that part of RA 10175,
including Section 4(c)(1), are “Content-related Offenses,” penalizing the content of
categories of online speech or expression. As a content-based regulation, Section 4(c)(1)
triggers the most stringent standard of review for speech restrictive laws – strict
scrutiny – to test its validity.[28] Under this heightened scrutiny, a regulation will pass
muster only if the government shows (1) a compelling state interest justifying the
suppression of speech; and (2) that the law is narrowly-tailored to further such state
interest. On both counts, the government in this case failed to discharge its burden.

The state interests the OSG appears to advance as bases for Section 4(c)(1) are: (1) the
protection of children “as cybersex operations x x x are most often committed against
children,” and (2) the cleansing of cyber traffic by penalizing the online publication of
pornographic images.[29] Although legitimate or even substantial, these interests fail to
rise to the level of compelling interests because Section 4(c)(1) is both
(1) overinclusive in its reach of the persons exploited to commit the offense of cybersex,
and (2) underinclusive in its mode of commission. These defects expose a legislative
failure to narrowly tailor Section 4(c)(1) to tightly fit its purposes.

As worded, Section 4(c)(1) penalizes the “willful engagement, maintenance, control, or

operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.” On the first
interest identified by the government, the overinclusivity of this provision rests on the
lack of a narrowing clause limiting its application to minors. As a result, Section 4(c)(1)
penalizes the “lascivious exhibition of sexual organs of, or sexual activity”
involving minors and adults, betraying a loose fit between the state interest and the
means to achieve it.

Indeed, the proffered state interest of protecting minors is narrowly advanced not by
Section 4(c)(1) but by the provision immediately following it, Section 4(c)(2), which
penalizes online child pornography. Section 4(c)(2) provides:

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a
computer system x x x.

Republic Act No. 9775 defines “Child pornography” as referring to –

any representation, whether visual, audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other means, of child engaged or involved
in real or simulated explicit sexual activities.[30] (Emphasis supplied)

Under Section 3 of that law, the term “explicit sexual activities” is defined as follows:

Section 3. Definition of terms. –

xxxx

(c) “Explicit Sexual Activity” includes actual or simulated –

    (1) As to form:

(i) sexual intercourse or lascivious act including, but not limited to, contact involving
genital to genital, oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;

xxxx

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.]
(Emphasis supplied)
Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state
interest of protecting minors by punishing the “representation x x x by electronic
means” of sexually explicit conduct including the exhibition of sexual organs of, or
sexual acts, involving minors. Section 4(c)(1) does not advance such state interest
narrowly because it is broadly drawn to cover both minors and adults. Section 4(c)(2) is
constitutional because it narrowly prohibits cybersex acts involving minors only, while
Section 4(c)(1) is unconstitutional because it expands the prohibition to cybersex acts
involving both minors and adults when the justification for the prohibition is to protect
minors only.

The overinclusivity of Section 4(c)(1) vis-a-vis the second state interest the government

invokes results from the broad language Congress employed to define “cybersex.” As
the petitioners in G.R. No. 203378, G.R. No. 203359 and G.R. No. 203518 correctly point
out, the crime of “lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration” embraces within its ambit “works of art
that depict sexual activities” made accessible to the public for a fee or “commercially
available cinematic films which feature adult subject matter and artistic, literary or
scientific material and instructional material for married couples.”[31] Congress could
have narrowly tailored Section 4(c)(1) to cover only online pornography by hewing
closely to the Miller test – the prevailing standard for such category of unprotected
speech, namely, “an average person, applying contemporary standards would find [that]
the work, taken as a whole, appeals to the prurient interest by depict[ing] or
describ[ing] in a patently offensive way, sexual conduct specifically defined by the
applicable x x x law and x x x, taken as a whole, lacks serious literary, artistic, political, or
scientific value.”[32]

Moreover, Section 4(c)(1) penalizes “any lascivious exhibition of sexual organs or sexual

activity, with the aid of a computer system, for favor or consideration.” There are many
fee-based online medical publications that illustrate sexual organs and even sexual acts.
Section 4(c)(1) will now outlaw all these online medical publications which are needed
by doctors in practicing their profession. This again shows the overinclusiveness of
Section 4(c)(1) in violation of the Free Speech Clause.

The loose fit between the government interests of cleansing the Internet channels of
immoral content and of protecting minors, on the one hand, and the means employed
to further such interests, on the other hand, is highlighted by the underincluvisity of
Section 4(c)(1) insofar as the manner by which it regulates content of online speech.
Section 4(c)(1) limits the ambit of its prohibition to fee-based websites exhibiting sexual
organs or sexual activity. In doing so, it leaves outside its scope and unpunished under
Section 4(c)(1) non-fee based porn websites, such as those generating income through
display advertisements. The absence of regulation under Section 4(c)(1) of undeniably
unprotected online speech in free and open porn websites defeats the advancement of
the state interests behind the enactment of Section 4(c)(1) because unlike fee-based
online porn websites where the pool of viewers is narrowed down to credit card-owning
subscribers who affirm they are adults, free and open porn websites are accessible to
all, minors and adults alike. Instead of purging the Internet of pornographic content,
Section 4(c)(1) will trigger the proliferation of free and open porn websites which, unlike
their fee-based counterparts, are not subject to criminal regulation under Section 4(c)
(1). What Section 4(c)(1) should have prohibited and penalized are free and open porn
websites which are accessible by minors, and not fee-based porn websites which are
accessible only by credit card-owning adults, unless such fee-based websites cater to
child pornography, in which case they should also be prohibited and penalized.

It is doubtful whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance

state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an
altogether common by-product of loosely crafted legislations.

Contrary to the ponencia’s conclusion, Section 4(c)(1) does not cover “the same subject”
as Article 201 of the Code and RA 9208. Article 201 penalizes “Immoral
doctrines, obscene publications and exhibitions and indecent shows” as understood
under the Miller test.[33] On the other hand, RA 9208 penalizes trafficking in persons (or
its promotion) for illicit purposes (Section 4[a]). The fact that these statutory provisions
remain valid in the statute books has no bearing on the question whether a statutory
provision penalizing the “lascivious exhibition of sexual organs or sexual activity, with
the aid of a computer system, for favor or consideration” offends the Free Speech
Clause.

The majority’s decision to uphold the validity of Section 4(c)(1) reverses, without
explanation, the well-entrenched jurisprudence in this jurisdiction applying the
obscenity test of Miller. Just five years ago in 2009, this Court unanimously
applied Miller in Soriano v. Laguardia[34] to test whether the statements aired on late
night TV qualified for protection under the Free Speech Clause. Much earlier in 2006,
the Court also applied Miller to review a conviction for violation of Article 201 of the
Code on obscene publications in Fernando v. Court of Appeals.[35] It was in Pita v. Court
of Appeals,[36] however, decided in 1989 over a decade after Miller, where the Court had
first occasion to describe Miller as “the latest word” in the evolution of the obscenity
test in the U.S. jurisdiction. Indeed, as I noted in my separate opinion
in Soriano, Miller is an “expansion” of previous tests on pornography developed in the
U.S. and English jurisdictions, liberalizing the elements of previous tests
(Hicklin and Roth):

The leading test for determining what material could be considered obscene was the
famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:

I think the test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall.

Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin
test even as he was obliged to follow the rule. He wrote:

I hope it is not improper for me to say that the rule as laid down, however consonant it
may be with mid-Victorian morals, does not seem to me to answer to the understanding
and morality of the present time.

Roth v. United States laid down the more reasonable and thus, more acceptable test for
obscenity: "whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to prurient
interest." Such material is defined as that which has "a tendency to excite lustful
thoughts," and "prurient interest" as "a shameful or morbid interest in nudity, sex, or
excretion."

Miller v. California merely expanded the Roth test to include two additional criteria: "the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and the work, taken as whole, lacks serious literary,
artistic, political, or scientific value." The basic test, as applied in our jurisprudence,
extracts the essence of both Roth and Miller – that is, whether the material appeals to
prurient interest.[37] (Italicization supplied; internal citations omitted)

Miller is the modern obscenity test most protective of speech uniformly followed in this
jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and
rejecting Miller, regresses to less protective frameworks of speech analysis. Because
neither the ponencia nor the concurring opinions devote discussion on this doctrinal
shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has
reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either
way, the lowered protection afforded to works claimed as obscene turns back the clock
of free expression protection to the late 1960s and beyond when prevailing mores of
morality are incongruous to 21st century realities.

Section 4(c)(3) Repugnant to the Free Speech Clause

Section 4(c)(3) of RA 10175 makes criminal the transmission through a computer system
of “electronic communication x x x which seek to advertise, sell, or offer for sale
products and services” unless they fall under three categories of exceptions. These
categories are: (1) the recipient of the commercial message “gave prior affirmative
consent” to do so; (2) the

“primary intent” of the commercial message “is for service and/or administrative
announcements from the sender” to its “users, subscribers or customers”; and (3) the
commercial message (a) has an “opt-out” feature; (b) has a source which is “not
purposely disguise[d]”; and (c) “does not purposely include misleading information x x x
to induce the recipient to read the message.” According to the OSG, Congress enacted
Section 4(c)(3) to improve the “efficiency of commerce and technology” and prevent
interference with “the owner’s peaceful enjoyment of his property [computer
device].”[38]

Section 4(c)(3) fails scrutiny. Section 4(c)(3) impermissibly restricts the flow of truthful
and non-misleading commercial speech in cyberspace that does not fall under any of the
exceptions in Section 4(c)(3), lowering the protection it enjoys under the Free Speech
Clause.[39] Section 4(c)(3) would be constitutional if it allowed the free transmission of
truthful and non-misleading commercial speech, even though not falling under any of
the exceptions in Section 4(c)(3). There is no legitimate government interest in
criminalizing per se the transmission in cyberspace of truthful and non-misleading
commercial speech.

Under the exception clauses of Section 4(c)(3), commercial speech may be transmitted
online only when (1) the recipient has subscribed to receive it (“opted-in”); or (2) the
commercial speech, directed to its “users, subscribers or customers,” contains
announcements; or (3) the undisguised, non-misleading commercial speech has an “opt-
out” feature. The combination of these exceptions results in penalizing the transmission
online (1) of commercial speech with no “opt-out” feature to non-subscribers, even if
truthful and non-misleading; and (2) of commercial speech which does not relay
“announcements” to subscribers, even if truthful and non-misleading. Penalizing the
transmission of these protected categories of commercial speech is devoid of any
legitimate government interest and thus violates the Free Speech Clause.

Indeed, the free flow of truthful and non-misleading commercial speech online should
remain unhampered to assure freedom of expression of protected speech. In
cyberspace, the free flow of truthful and non-misleading commercial speech does not
obstruct the public view or degrade the aesthetics of public space in the way that
billboards and poster advertisements mar the streets, highways, parks and other public
places. True, commercial speech does not enjoy the same protection as political speech
in the hierarchy of our constitutional values. However, any regulation of truthful and
non-misleading commercial speech must still have a legitimate government purpose.
Regulating truthful and non-misleading commercial speech does not result in “efficiency
of commerce and technology” in cyberspace.

In fact, the free flow of truthful and non-misleading commercial speech should be
encouraged in cyberspace for the enlightenment of the consuming public, considering
that it is cost-free to the public and almost cost-free to merchants. Instead of using
paper to print and mail truthful and non-misleading commercial speech, online
transmission of the same commercial message will save the earth's dwindling forests
and be more economical, reducing marketing costs and bringing down consumer prices.
If any regulation of truthful and non-misleading commercial speech is to take place, its
terms are best fixed through the interplay of market forces in cyberspace. This is
evident, in fact, in the menu of options currently offered by email service providers to
deal with unwanted or spam email, allowing their account holders to customize
preferences in receiving and rejecting them. Unwanted or spam emails automatically go
to a separate spam folder where all the contents can be deleted by simply checking the
“delete all” box and clicking the delete icon. Here, the account holders are given
the freedom to read, ignore or delete the unwanted or spam email with hardly any
interference to the account holders' peaceful enjoyment of their computer device.
Unless the commercial speech transmitted online is misleading or untruthful, as
determined by courts, government should step aside and let this efficient self-regulatory
market system run its course.

Section 7 of RA 10175 Repugnant to the Double Jeopardy and Free Speech Clauses

The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the constitutionality of
Section 7, which makes conviction under RA 10175 non-prejudicial to “any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws,” for
being repugnant to the Double Jeopardy Clause. The OSG sees no merit in the claim,
citing the rule that “a single set of acts may be prosecuted and penalized under two
laws.”[40]

The OSG misapprehends the import of Section 7. Although RA 10175 defines and
punishes a number of offenses to which Section 7 applies, its application to the offense
of online libel under Section 4(c)(4) of RA 10175, in relation to the offense of libel under
Article 353 of the Code, suffices to illustrate its unconstitutionality for trenching the
Double Jeopardy and Free Speech Clauses.

RA 10175 does not define libel. Its definition is found in the Code (Article 353) which
provides:

Definition of libel - A libel is a public and malicious imputation of a crime or of a vice or

defect, real or imaginary, or any act, omission, condition, status or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.

As defined, the medium through which libel is committed is not an element of such
offense. What is required of the prosecution are proof of the (1) statement of a
discreditable act or condition of another person; (2) publication of the charge; (3)
identity of the person defamed; and (4) existence of malice.[41] The irrelevance of the
medium of libel in the definition of the crime is evident in Article 355 of the Code which
punishes libel with a uniform penalty[42] whether it is committed “by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.”

RA 10175 adopts the Code's definition of libel by describing online libel under Section
4(c)(4) as “[t]he unlawful or prohibited acts as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means
which may be devised in the future.” By adopting the Code's definition of libel, Section
4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article
355 of the Code. Section 4(c)(4) merely adds the media of “computer system or any
other similar means which may be devised in the future” to the list of media
enumerated in Article 355. This is understandable because at the time the Code was
enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in
contradiction to its position on the constitutionality of Section 7), Congress enacted
Section 4(c)(4) not to create a new crime, but merely to “ma[ke] express an
avenue already covered by the term 'similar means' under Article 355, to keep up with
the times”:

Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353,
in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an
avenue already covered by the term “similar means” under Article 355, to keep up with
the times.[43] (Emphasis supplied)

For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and
Article 353 in relation to Article 355 of the Code define and penalize the same
offense of libel. Under the Double Jeopardy

Clause, conviction or acquittal under either Section 4(c)(4) or Article 353 in relation to
Article 355 constitutes a bar to another prosecution for the same offense of libel.

The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No.
203378 provides a perfect example for applying the rules on print and online libel in
relation to the Double Jeopardy Clause. These petitioners write columns which are
published online and in print by national and local papers.[44] They allege, and
respondents do not disprove, that “their columns see publication in both print and
online versions of the papers they write for.”[45] Should these petitioners write columns
for which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for
online libel the Double Jeopardy Clause bars their second prosecution for print libel for
the same columns upon which their first conviction rested, under Article 353 in relation
to Article 355 of the Code. Such constitutional guarantee shields them from being twice
put in jeopardy of punishment for the same offense of libel.

The foregoing analysis applies to all other offenses defined and penalized under the
Code or special laws which (1) are penalized as the same offense under RA 10175
committed through the use of a computer system; or (2) are considered aggravated
offenses under RA 10175. Conviction or acquittal under the Code or such special laws
constitutes a bar to the prosecution for the commission of any of the offenses defined
under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA
9775 (use of a child to create child pornography[46]) constitutes a bar to the prosecution
for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa.
This is because the offense of child pornography under RA 9775 is the same offense of
child pornography under RA 10175 committed through the use of a computer system.

Section 7 of RA 10175 also offends the Free Speech Clause by assuring multiple
prosecutions of those who fall under the ambit of Section 4(c)(4). The specter of
multiple trials and sentencing, even after conviction under RA 10175, creates a
significant and not merely incidental chill on online speech. Section 7 stifles speech in
much the same way that excessive prison terms for libel, subpoenas to identify
anonymous online users or high costs of libel litigation do. It has the effect of making
Internet users “steer far wide of the unlawful zone”[47] by practicing self-censorship,
putting to naught the democratic and inclusive culture of the Internet where anyone can
be a publisher and everyone can weigh policies and events from anywhere in the world
in real time. Although Section 7, as applied to Section 4(c)(4), purports to strengthen the
protection to private reputation that libel affords, its sweeping ambit deters not only
the online publication of defamatory speech against private individuals but also the
online dissemination of scathing, false, and defamatory statements against public
officials and public figures which, under the actual malice rule, are conditionally
protected. This chilling effect on online communication stifles robust and uninhibited
debate on public issues, the constitutional value lying at the core of the guarantees of
free speech, free expression and free press.
 Section 12 of RA 10175 Violative of the Search and Seizure and Privacy of
Communication Clauses

Section 12 of RA 10175 grants authority to the government to record in bulk and in real
time electronic data transmitted by means of a computer system,[48] such as through
mobile phones and Internet-linked devices. The extent of the power granted depends
on the type of electronic data sought to be recorded, that is, whether traffic data or
non-traffic data (“all other data”). For traffic data, which RA 10175 defines as “the
communication’s origin, destination, route, time, date, size, duration, or type of
underlying service,” the government, for “due cause” can record them on its own or
with the aid of service providers, without need of a court order. For non-traffic data
collection, a “court warrant” is required based on reasonable grounds that the data to
be collected is “essential” for the prosecution or prevention of violation of any of the
crimes defined under RA 10175. The full text of Section 12 provides:

Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause,
shall be authorized to collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed: (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Section 12 of RA 10175 is the statutory basis for intelligence agencies of the government
to undertake warrantless electronic data surveillance and collection in bulk to
investigate and prosecute violations of RA 10175.

Section 12 fails constitutional scrutiny. Collection in bulk of private and personal

electronic data transmitted through telephone and the Internet allows the government
to create profiles of the surveilled individuals’ close social associations, personal
activities and habits, political and religious interests, and lifestyle choices expressed
through these media. The intrusion into their private lives is as extensive and thorough
as if their houses, papers and effects are physically searched. As such, collection in bulk
of such electronic data rises to the level of a search and seizure within the meaning of
the Search and Seizure Clause, triggering the requirement for a judicial warrant
grounded on probable cause. By vesting the government with authority to undertake
such highly intrusive search and collection in bulk of personal digital data without
benefit of a judicial warrant, Section 12 is unquestionably repugnant to the guarantee
under the Search and Seizure Clause against warrantless searches and seizures.

Further, Section 12 allows the use of advanced technology to impermissibly narrow the
right to privacy of communication guaranteed under the Privacy of Communications
Clause. Although such clause exempts from its coverage searches undertaken “when
public safety or order requires otherwise, as prescribed by law,” Section 12 is not a
“law” within the contemplation of such exception because it does not advance the
interest of “public safety or order.” Nor does it comply with the warrant requirement
which applies to all searches of communication and correspondence not falling under
recognized exceptions to the Search and Seizure Clause, such as the search of non-legal
communication sent and received by detainees[49] search of electronic data stored in
government issued computers,[50] or security searches at airports.[51]

Scope of Information Subject of Real-Time Extrajudicial Collection and Analysis by

Government

Section 12’s definition of traffic data – the communication’s origin, destination, route,
time, date, size, duration, or type of underlying service – encompasses the following
information for mobile phone, Internet and email communications:

Mobile phone:

telephone number of the caller

telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same information are available
save for the duration of the communication.)

Email:

date
time
source
destination and size
attachment/s
country of sender and recipient
city of sender and recipient

Internet:

search keywords
public IP (Internet Protocol) of user
geolocation of user
client’s name (for smartphone, PC or desktop)
browser
OS (Operating System)
URL (Universal Source Locator)
date and time of use

Unlike personal information which form part of the public domain (hence, readily
accessible) because their owners have either disclosed them to the government as a
result of employment in that sector or are part of transactions made with regulatory
agencies (such as the land transportation, passport and taxing agencies), the
information indicated above are personal and private. They reveal data on the social
associations, personal activities and habits, political and religious interests, and lifestyle
choices of individuals that are not freely accessible to the public. Because Section 12
contains no limitation on the quantity of traffic data the government can collect, state
intelligence agencies are free to accumulate and analyze as much data as they want,
anytime they want them.

Randomly considered, traffic data do not reveal much about a person’s relationships,
habits, interests or lifestyle expressed online or through phone. After all, they are mere
bits of electronic footprint tracking a person’s electronic communicative or expressive
activities. When compiled in massive amounts, however, traffic data, analyzed over
time, allows the state to create a virtual profile of the surveilled individuals, revealing
their close relationships, mental habits, political and religious interests, as well as
lifestyle choices – as detailed as if the government had access to the content of their
letters or conversations. Or put differently –

When [traffic] information x x x is combined, it can identify all of our surreptitious

connections with the world, providing powerful evidence of our activities and beliefs.
[L]aw enforcement can construct a “complete mosaic of a person's characteristics”
through this type of x x x surveillance. Under these circumstances, the information the
government accumulates  is more akin to content than mere cataloguing.[52] (Emphasis
supplied)

The profiling of individuals is not hampered merely because the bulk data relate to
telephone communication. As pointed out in a Report, dated 12 December 2013, by a
government panel of experts[53] which reviewed the U.S. government’s electronic
surveillance policy (Panel’s Report) –

[t]he record of every telephone call an individual makes or receives over the course of
several years can reveal an enormous amount about that individual’s private life. x x x.
[T]elephone calling data can reveal x x x an individual’s “familial, political, professional,
religious, and sexual associations.” It can reveal calls “to the psychiatrist, the plastic
surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney,
the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay
bar, and on and on.”[54]

This virtual profiling is possible not only because of software[55] which sifts through
telephone and Internet data to locate common patterns but also because, for Internet
“Universal Resource Locators x x x, they are [both] addresses (e.g.,
www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and
thus permit government to ascertain what the user has viewed.”[56] The identities of
users of mobile phone numbers can easily be found through Internet search or in public
and private mobile phone directories, calling cards, letterheads and similar documents.

Bulk Data Surveillance Rises to the

Level of a “Search and Seizure” Within
the Meaning of the Search and Seizure
Clause

There is no quarrel that not all state access to personal information amount to a
“search” within the contemplation of the Search and Seizure Clause. Government
collection of data readily available (or exposed) to the public, even when obtained using
devices facilitating access to the information, does not implicate constitutional concerns
of privacy infringement.[57] It is when government, to obtain private information,
intrudes into domains over which an individual holds legitimate privacy expectation that
a “search” takes place within the meaning of the Search and Seizure Clause.[58] To
determine whether the collection of bulk traffic data of telephone and online
communication amounts to a constitutional search, the relevant inquiry, therefore, is
whether individuals using such media hold legitimate expectation that the traffic data
they generate will remain private.

Unlike this Court, the U.S. Supreme Court had weighed such question and answered in
the negative. In Smith  v. Maryland,[59] promulgated in 1979,

that court was confronted with the issue whether the warrantless monitoring of
telephone numbers dialed from a private home and stored by the telephone company,
amounted to a search within the meaning of the Fourth Amendment. The U.S. High
Court’s analysis centered on the reasoning that a caller has no legitimate privacy
expectation over telephone numbers stored with telephone companies because he
“assumed the risk that the company would reveal to police the numbers he dialed.”[60]

Several reasons undercut not only the persuasive worth of Smith in this jurisdiction but
also the cogency of its holding. First, all three modern Philippine Constitutions, unlike
the U.S. Constitution, explicitly guarantee “privacy of communications and
correspondence.”[61] This is a constitutional recognition, no less, of the legitimacy of the
expectation of surveilled individuals that their communication and correspondence will
remain private and can be searched by the government only upon compliance with the
warrant requirement under the Search and Seizure Clause. Although such guarantee
readily protects the content of private communication and correspondence, the
guarantee also protects traffic data collected in bulk which enables the government to
construct profiles of individuals’ close social associations, personal activities and habits,
political and religious interests, and lifestyle choices, enabling intrusion into their lives
as extensively as if the government was physically searching their “houses, papers and
effects.”[62]

Second, at the time the U.S. Supreme Court decided Smith in 1979, there were no
cellular phones, no Internet and no emails as we know and use them today. Over the
last 30 years, technological innovations in mass media and electronic surveillance have
radically transformed the way people communicate with each other and government
surveils individuals. These radical changes undergirded the refusal of the District Court
of Columbia to follow Smith in its ruling promulgated last 16 December 2013, striking
down portions of the spying program of the U.S. National Security Agency (NSA).[63] The
District Court observed:

[T]he relationship between the police and the phone company in Smith is nothing
compared to the relationship that has apparently evolved over the last seven years
between the Government and telecom companies. x x x x In Smith, the Court considered
a one-time, targeted request for data regarding an individual suspect in a criminal
investigation, x x x which in no way resembles the daily, all-encompassing,
indiscriminate dump of phone metadata that the (NSA) now receives as part of its
Bulk Telephony Metadata Program. It's one thing to say that people expect phone
companies to occasionally provide information to law enforcement; it is quite another
to suggest that our citizens expect all phone companies to operate what is effectively
a joint intelligence-gathering operation with the Government. x x x.[64] (Emphasis
supplied)

Third, individuals using the telephone and Internet do not freely disclose private
information to the service providers and the latter do not store such information in trust
for the government. Telephone and Internet users divulge private information to service
providers as a matter of necessity to access the telephone and Internet services, and the
service providers store such information (within certain periods) also as a matter of
necessity to enable them to operate their businesses. In what can only be described as
an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar
conclusion, states:[65]

In modern society, individuals, for practical reasons, have to use banks, credit cards, e-
mail, telephones, the Internet, medical services, and the like. Their decision to reveal
otherwise private information to such third parties does not reflect a lack of concern for
the privacy of the information,  but a necessary accommodation to the realities of
modern life. What they want — and reasonably expect —  is both the ability to use such
services and the right to maintain their privacy when they do so.[66] (Emphasis supplied)

Clearly then, bulk data surveillance and collection is a “search and seizure” within the
meaning of the Search and Seizure Clause not only because it enables maximum
intrusion into the private lives of the surveilled individuals but also because such
individuals do not forfeit their privacy expectations over the traffic data they generate
by transacting with service providers. Bulk data and content-based surveillance and
collection are functionally identical in their access to personal and private information. It
follows that the distinction Section 12 of RA 10175 draws between content-based and
bulk traffic data surveillance and collection, requiring judicial warrant for the former and
a mere administrative “due cause” for the latter, is unconstitutional. As “searches and
seizures” within the contemplation of Search and Seizure Clause, bulk data and content-
based surveillance and collection are uniformly subject to the constitutional
requirement of a judicial warrant grounded on probable cause.

Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence

The grant under Section 12 of authority to the government to undertake bulk data
surveillance and collection without benefit of a judicial warrant enables the government
to access private and personal details on the surveilled individuals’ close social
associations, personal activities and habits, political and religious interests, and lifestyle
choices. This impermissibly narrows the sphere of privacy afforded by the Privacy of
Communication Clause. It opens a backdoor for government to pry into their private
lives as if it obtained access to their phones, computers, letters, books, and other papers
and effects. Since Section 12 does not require a court warrant for government to
undertake such surveillance and data collection, law enforcement agents can access
these information anytime they want to, for whatever purpose they may deem as
amounting to “due cause.”

The erosion of the right to privacy of communication that Section 12 sanctions is

pernicious because the telephone and Internet are indispensable tools for
communication and research in this millennium. People use the telephone and go online
to perform tasks, run businesses, close transactions, read the news, search for
information, communicate with friends, relatives and business contacts, and in general
go about their daily lives in the most efficient and convenient manner. Section 12 forces
individuals to make the difficult choice of preserving their communicative privacy but
reverting to non-electronic media, on the one hand, or availing of electronic media
while surrendering their privacy, on the other hand. These choices are inconsistent with
the Constitution’s guarantee to privacy of communication.

Section 12 of RA 10175 not a “law”

Within the Contemplation of the
Exception Clause in Section 3(1),
Article III of the 1987 Constitution

Undoubtedly, the protection afforded by the Constitution under the Privacy of

Communication Clause is not absolute. It exempts from the guarantee intrusions “upon
lawful order of the court, or when public safety or order requires otherwise, as
prescribed by  law.” Does Section 12 of RA 10175 constitute a “law” within the
contemplation of the Privacy of Communication Clause?

When the members of the 1971 Constitutional Convention deliberated on Article III,
Section 4(1) of the 1973 Constitution, the counterpart provision of Article III, Section
3(1) of the 1987 Constitution, the phrase “public safety or order” was understood by the
convention members to encompass “the security of human lives, liberty and
property against the activities of invaders, insurrectionists and rebels.”[67] This narrow
understanding of the public safety exception to the guarantee of communicative privacy
is consistent with Congress’ own interpretation of the same exception as provided in
Article III, Section 1(5) of the 1935 Constitution. Thus, when Congress passed the Anti-
Wiretapping Act[68] (enacted in 1965), it exempted from the ban on wiretapping “cases
involving the crimes of treason, espionage, provoking war and disloyalty in case of war,
piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against national security” (Section 3).
In these specific and limited cases where wiretapping has been allowed, a court warrant
is required before the government can record the conversations of individuals.

Under RA 10175, the categories of crimes defined and penalized relate to (1) offenses
against the confidentiality, integrity and availability of computer data and systems
(Section 4[a]); (2) computer-related offenses (Section 4[b]); (3) content-related offenses
(Section 4[c]); and (4) other offenses (Section 5). None of these categories of crimes are
limited to public safety or public order interests (akin to the crimes exempted from the
coverage of the Anti-Wiretapping Law). They relate to crimes committed in the
cyberspace which have no stated public safety or even national security dimensions.
Such fact takes Section 12 outside of the ambit of the Privacy of Communication Clause.
In any event, even assuming that Section 12 of RA 10175 is such a “law,” such “law” can
never negate the constitutional requirement under the Search and Seizure Clause that
when the intrusion into the privacy of communication and correspondence rises to the
level of a search and seizure of personal effects, then a warrant issued by a judge
becomes mandatory for such search and seizure. Fully cognizant of this fact, Congress,
in enacting exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made
sure that law enforcement authorities obtain a warrant from a court based on probable
cause to undertake wiretapping. Section 3 of the Anti-Wiretapping Act provides:

Nothing contained in this Act, however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the Court, to execute any of the
acts declared to be unlawful in the two preceding Sections in cases involving the crimes
of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by
the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing
espionage and other offenses against national security: Provided, That such written
order shall only be issued or granted upon written application and the examination
under oath or affirmation of the applicant and the witnesses he may produce and a
showing: (1) that there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being committed or is about to be
committed: Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, and inciting to sedition, such authority shall be granted only upon
prior proof that a rebellion or acts of sedition, as the case may be, have actually been or
are being committed; (2) that there are reasonable grounds to believe  that evidence
will be obtained essential to the conviction of any person for, or to the solution of, or to
the prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence. (Emphasis supplied)

Section 12 of RA 10175 More

Expansive than U.S. Federal Electronic
Surveillance Laws

Under U.S. federal law, authorities are required to obtain a court order to install “a pen
register or trap and trace device” to record in real time or decode electronic
communications.[69] Although initially referring to technology to record telephone
numbers only, the term “pen register or trap and trace device” was enlarged by the
Patriot Act to cover devices which record “dialing, routing, addressing, and signaling
information utilized in the processing and transmitting of wire or electronic
communications,” including Internet traffic data.[70] The court of competent jurisdiction
may issue ex parte the order for the installation of the device “if [it] finds that the State
law enforcement or investigative officer has certified to the court that the information
likely to be obtained by such installation and use is relevant to an ongoing criminal
investigation.”[71]

For electronic surveillance relating to foreign intelligence, U.S. federal law requires the
government to obtain ex parte orders from the Foreign Intelligence Surveillance Court
(FISC)[72] upon showing that “the target of surveillance was a foreign power or an agent
of a foreign power.”[73] Under an amendment introduced by the Patriot Act, the
government was further authorized to obtain an ex parte order from the FISC for the
release by third parties of “tangible things” such as books, papers, records, documents
and other items “upon showing that the tangible things sought are relevant to an
authorized investigation x x x to obtain foreign intelligence information not concerning a
United States person or to protect against international terrorism or clandestine
intelligence activities.”[74] The investigation is further subjected to administrative
oversight by the Attorney General whose prior authorization to undertake such
investigation is required.[75]

In contrast, Section 12 of RA 10175 authorizes law enforcement officials “to collect or

record by technical or electronic means traffic data in real-time” if, in their judgment,
such is for “due cause.”[76] Unlike in the Patriot Act, there is no need for a court order to
collect traffic data. RA 10175 does not provide a definition of “due cause” although the
OSG suggests that it is synonymous with “just reason or motive” or “adherence to a
lawful procedure.”[77] The presence of “due cause” is to be determined solely by law
enforcers.

In comparing the U.S. and Philippine law, what is immediately apparent is that the U.S.
federal law requires judicial oversight for bulk electronic data collection and analysis
while Philippine law leaves such process to the exclusive discretion of law enforcement
officials. The absence of judicial participation under Philippine law precludes
independent neutral

assessment by a court on the necessity of the surveillance and collection of data.

[78]
 Because the executive’s assessment of such necessity is unilateral, Philippine
intelligence officials can give the standard of “due cause” in Section 12 of RA 10175 as
broad or as narrow an interpretation as they want.

The world by now is aware of the fallout from the spying scandal in the United States
arising from the disclosure by one of its intelligence computer specialists that the U.S.
government embarked on bulk data mining, in real time or otherwise, of Internet and
telephone communication not only of its citizens but also of foreigners, including heads
of governments of 35 countries.[79] The District Court’s observation in Klayman on the
bulk data collection and mining undertaken by the NSA of telephone traffic data is
instructive:
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic
and high-tech collection and retention of personal data on virtually every single citizen
for purposes of querying and analyzing it without prior judicial approval. Surely, such a
program infringes on “that degree of privacy” that the Founders enshrined in the Fourth
Amendment. Indeed, I have little doubt that the author of our Constitution, James
Madison, who cautioned us to beware “the abridgment of freedom of the people by
gradual and silent encroachments by those in power,” would be aghast.[80]

Equally important was that court’s finding on the efficacy of the bulk surveillance
program of the U.S. government: “the Government does not cite a single instance in
which analysis of the NSA's bulk metadata collection actually stopped an imminent
attack, or otherwise aided the Government in achieving any objective that was time-
sensitive in nature.”[81]

To stem the ensuing backlash, legislative and executive leaders of the U.S. government
committed to re-writing current legislation to curb the power of its surveillance
agencies.[82] The pressure for reforms increased with the recent release of an
unprecedented statement by the eight largest Internet service providers in America
calling on the U.S. government to “limit surveillance to specific, known users for lawful
purposes, and x x x not undertake bulk data collection of Internet
communications.”[83] Along the same lines, the Panel’s Report recommended, among
others that, “the government should not be permitted to collect and store all mass,
undigested, non-public personal information about individuals to enable future queries
and data-mining for foreign intelligence purposes” [84] as such poses a threat to privacy
rights, individual liberty and public trust. The Panel’s Report elaborated:

Because international terrorists inevitably leave footprints when they recruit, train,
finance, and plan their operations, government acquisition and analysis of such personal
information might provide useful clues about their transactions, movements, behavior,
identities and plans. It might, in other words, help the government find the proverbial
needles in the haystack. But because such information overwhelmingly concerns the
behavior of ordinary, law-abiding individuals, there is a substantial risk of serious
invasions of privacy.

As a report of the National Academy of Sciences (NAS) has observed, the mass collection
of such personal information by the government would raise serious “concerns about
the misuse and abuse of data, about the accuracy of the data and the manner in which
the data are aggregated, and about the possibility that the government could, through
its collection and analysis of data, inappropriately influence individuals’ conduct.”

According to the NAS report, “data and communication streams” are ubiquitous:

[They] concern financial transactions, medical records, travel, communications, legal

proceedings, consumer preferences, Web searches, and, increasingly, behavior and
biological information. This is the essence of the information age — x x x everyone
leaves personal digital tracks in these systems whenever he or she makes a purchase,
takes a trip, uses a bank account, makes a phone call, walks past a security camera,
obtains a prescription, sends or receives a package, files income tax forms, applies for a
loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other
activity x x x x Gathering and analyzing [such data] can play major roles in the
prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the
pressures of threats as serious as terrorism, the privacy rights and civil liberties that are
cherished core values of our nation must not be destroyed x x x x One x x x concern is
that law-abiding citizens who come to believe that their behavior is watched too closely
by government agencies x x x may be unduly inhibited from participating in the
democratic process, may be inhibited from contributing fully to the social and cultural
life of their communities, and may even alter their purely private and perfectly legal
behavior for fear that discovery of intimate details of their lives will be revealed and
used against them in some manner.[85] (Emphasis supplied)

In lieu of data collection in bulk and data mining, the Panel’s Report recommended that
such data be held by “private providers or by a private third party,”[86] accessible by
American intelligence officials only by order of the FISC, upon showing that the
requested information is “relevant to an authorized investigation intended to protect
‘against international terrorism or clandestine intelligence activities,’”[87] a more
stringent standard than what is required under current federal law.

Finding merit in the core of the Panel’s Report’s proposal, President Obama ordered a
two-step “transition away from the existing program” of telephone data collection in
bulk and analysis, first, by increasing the threshold for querying the data and requiring
judicial oversight to do so (save in emergency cases), and second, by relinquishing
government’s possession of the bulk data:

[I]’ve ordered that the transition away from the existing program will proceed in two
steps.

Effective immediately, we will only pursue phone calls that are two steps removed from
a number associated with a terrorist organization, instead of the current three, and I
have directed the attorney general to work with the Foreign Intelligence Surveillance
Court so that during this transition period, the database can be queried only after a
judicial finding or in the case of a true emergency.

Next, step two: I have instructed the intelligence community and the attorney general to
use this transition period to develop options for a new approach that can match the
capabilities and fill the gaps that the Section 215 program was designed to
address, without the government holding this metadata itself. x x x.[88] (Emphasis
supplied)
The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of
communication caused by the grant of broad powers to the state to place anyone under
electronic surveillance without or with minimal judicial oversight. If judicial intervention
under U.S. law for real time surveillance of electronic communication did not rein in U.S.
spies, the total absence of such intervention under Section 12 of RA 10175 is a blanket
legislative authorization for data surveillance and collection in bulk to take place in this
country.

Section 12 Tilts the Balance in Favor

of Broad State Surveillance Over
Privacy of Communications Data

As large parts of the world become increasingly connected, with communications

carried on wired or wirelessly and stored electronically, the need to balance the state’s
national security and public safety interest, on the one hand, with the protection of the
privacy of communication, on the other hand, has never been more acute. Allowing the
state to undertake extrajudicial, unilateral surveillance and collection of electronic data
in bulk which, in the aggregate, is just as revealing of a person’s mind as the content of
his communication, impermissibly tilts the balance in favor of state surveillance at the
expense of communicative and expressive privacy. More than an imbalance in the
treatment of equally important societal values, however, such government policy gives
rise to fundamental questions on the place of human dignity in civilized society. This
concern was succinctly articulated by writers from all over the world protesting the
policy of mass surveillance and collection of data in bulk:

With a few clicks of the mouse, the state can access your mobile device, your email,
your social networking and Internet searches. It can follow your political leanings and
activities and, in partnership with Internet corporations, it collects and stores your data.

The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll
humans have a right to remain unobserved and unmolested. x x x.

A person under surveillance is no longer free; a society under surveillance is no longer a

democracy. [O]ur democratic rights must apply in virtual as in real space.[89]

The Government must maintain fidelity to the 1987 Constitution’s guarantee against
warrantless searches and seizures, as well as the guarantee of privacy of communication
and correspondence. Thus, the Government, consistent with its national security needs,
may enact legislation allowing surveillance and data collection in bulk only if based on
individualized suspicion and subject to meaningful judicial oversight.

Section 19 of RA 10175 Violative of the

Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses
The OSG concedes the unconstitutionality of Section 19 which authorizes the
Department of Justice (DOJ) to “issue an order to restrict or block access” to computer
data, that is, “any representation of facts, information, or concepts in a form suitable for
processing in a computer system,”[90] whenever the DOJ finds such data prima
facie violative of RA 10175. The OSG's stance on this “take down” clause is unavoidable.
Section 19 allows the government to search without warrant the content of private
electronic data and administratively censor all categories of speech. Although
censorship or prior restraint is permitted on speech which is pornographic, commercially
misleading or dangerous to national security,[91] only pornographic speech is covered by
RA 10175 (under Section 4(c)(2) on online child pornography). Moreover, a court order
is required to censor or effect prior restraint on protected speech.[92] By allowing the
government to electronically search without warrant and administratively censor all
categories of speech, specifically speech which is non-pornographic, not commercially
misleading and not a danger to national security, which cannot be subjected to
censorship or prior restraint, Section 19 is unquestionably repugnant to the guarantees
of free speech, free expression and free press and the rights to privacy of
communication and against unreasonable searches and seizures. Indeed, as a system
of prior restraint on all categories of speech, Section 19 is glaringly unconstitutional.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the Revised Penal

Code, insofar as it applies to public officers and public figures, and the following
provisions of Republic Act No. 10175, namely: Section 4(c)(1), Section 4(c)(3), Section 7,
Section 12, and Section 19, for being violative of Section 2, Section 3(1) Section 4, and
Section 21, Article III of the Constitution.

[1]
 Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, THE WASHINGTON
POST, 17 January 2014, http://www.washingtonpost.com/politics/full-text-of-president-
obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-
4a4bf7bcbd84_story.html.

[2]
 On 1 January 1932.

[3]
 Article III, Section 1(8) (“No law shall be passed abridging the freedom of speech, or of
the press, or of the right of the people peaceably to assemble and petition the
Government for redress of grievances.”). This is substantially reiterated in Article III,
Section 9 of the 1973 Constitution and Article III, Section 4 of the 1987 Constitution.

[4]
 Act No. 277.

[5]
 376 U.S. 254 (1964) (involving a libel complaint for damages filed by the Montgomery,
Alabama police commissioner against the New York Times Company and other
individuals for a paid political advertisement published in the New York Times, criticizing
police conduct during a series of protests staged by civil rights activists at the height of
the campaign for racial equality in the American South in the 1960s).

[6]
 Also described as “an escalati[on] of the plaintiff’s burden of proof to an almost
impossible level.” Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985)
(White, J., concurring).

[7]
 Supra note 5 at 279-280.

[8]
 Supra note 5 at 269 quoting Roth v. United States, 354 U.S. 476, 484 (1957).

[9]
 Supra note 5 at 271-272 citing N. A. A. C. P. v. Button, 371 U.S. 415, 433 (1963).

[10]
 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

[11]
 Lopez v. Court of Appeals, 145 Phil. 219 (1970).

[12]
 Borjal v. CA, 361 Phil. 1 (1999); Baguio Midland Courier v. CA, 486 Phil. 223
(2004); Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, 15 May 2009, 588
SCRA 1.

[13]
 Flor v. People, 494 Phil. 439 (2005); Guingguing v. CA, 508 Phil. 193 (2005); Vasquez
v. CA, 373 Phil. 238 (1999).

[14]
 Babst v. National Intelligence Board, 217 Phil. 302, 331-332 (1984) (internal citations
omitted).

[15]
 Justice Enrique Fernando consistently espoused the theory that U.S. v. Bustos, 37
Phil. 731 (1918), preceded New York Times by over three decades (Mercado v. CFI of
Rizal, 201 Phil. 565 [1982]; Philippine Commercial and Industrial Bank v. Philnabank
Employees Association, 192 Phil. 581 [1981]). The OSG does one better than Justice
Fernando by claiming that a much earlier case, U.S. v. Sedano, 14 Phil. 338 (1909),
presaged New York Times (OSG Memorandum, pp. 62-63).

[16]
 Art. 362. Libelous remarks. — Libelous remarks or comments connected with the
matter privileged under the provisions of Article 354, if made with malice, shall not
exempt the author thereof nor the editor or managing editor of a newspaper from
criminal liability. (Emphasis supplied)

[17]
 Art. 361. Proof of the truth. — x x x x

Proof of the truth of an imputation of an act or omission not constituting a crime shall
not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted. (Emphasis supplied)

[18]
 OSG Memorandum, pp. 56-66, citing Snyder v. Ware, 397 U.S. 589 (1970).

[19]
 Decision, p. 15.

[20]
 Marbury v. Madison, 5 U.S. 137, 180 (1803).

[21]
 Id. at 177.

[22]
 The obligatory nature of judicial power is textualized under the 1987 Constitution.
Section 1, Article VIII provides: “Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.” (Emphasis supplied)

[23]
 Memorandum (G.R. No. 203378), p. 19.

[24]
 Memorandum (G.R. No. 203359), p. 58.

[25]
 OSG Memorandum, p. 43.

[26]
 Id. at 44-45.

[27]
 Decision, p. 11.

[28]
 Osmeña v. COMELEC, 351 Phil. 692 (1998).

[29]
 Id. at 44.

[30]
 Section 3(c).

[31]
 For the same reason, Section 4(c)(1) is unconstitutionally overbroad, sweeping in
“too much speech” including the protected indecent but non-obscene type. G.
GUNTHER AND K. SULLIVAN, CONSTITUTIONAL LAW 1287 (14th ed.).

[32]
 Miller v. California, 413 U.S. 15 (1973), cited with approval in Soriano v. Laguardia,
G.R. No. 164785, 15 March 2010, 615 SCRA 254, (Carpio, J., dissenting); Fernando v.
Court of Appeals, 539 Phil. 407 (2006).
[33]
 Fernando v. Court of Appeals, supra note 32.

[34]
 G.R. No. 164785, 29 April 2009, 587 SCRA 79.

[35]
 539 Phil. 407 (2006).

[36]
 258-A Phil. 134 (1989).

[37]
 G.R. No. 164785, 15 March 2010, 615 SCRA 254, 270-271 (Resolution).

[38]
 Decision, p. 13.

[39]
 The protected nature of truthful and non-misleading commercial speech was
adverted to in Philippine jurisprudence in Pharmaceutical and Health Care Association
of the Philippines v. Secretary of Health Duque III, 562 Phil. 386, 448-451 (Puno, C.J.,
concurring).

[40]
 OSG Consolidated Comment, pp. 109-110, citing People v. Sandoval, G.R. Nos. 95353-
54, 7 March 1996, 254 SCRA 436.

[41]
 Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

[42]
 Prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

[43]
 OSG Consolidated Comment, p. 77.

[44]
 Malaya (http://www.malaya.com.ph/)
and Abante (http://www.abante.com.ph); Manila Standard
Today (manilastandardtoday.com); and The News Today (www.thenewstoday.info),
respectively.

[45]
 Petition (G.R. No. 203378), p. 37.

[46]
 “Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To
hire, employ, use, persuade, induce or coerce a child to perform in the creation or
production of any form of child pornography[.]”

[47]
 Speiser v. Randall, 357 U.S. 513, 526 (1958).

[48]
 Defined in the law (Section 3[g]) as “refer[ing] to any device or group of
interconnected or related devices, one or more of which, pursuant to a program,
performs automated processing of data. It covers any type of device with data
processing capabilities including, but not limited to, computers and mobile phones. The
device consisting of hardware and software may include input, output and storage
components which may stand alone or be connected in a network or other similar
devices. It also includes computer data storage devices or media.”

[49]
 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189.

[50]
 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505
Phil. 298 (2005).

[51]
 People v. Canton, 442 Phil. 743 (2002); People v. Johnson, 401 Phil. 734 (2000). See
also United States v. Arnold, 523 F.3d 941 (9th Cir. Cal., 2008), certiorari denied by the
U.S. Supreme Court in Arnold v. United States, 129 S. Ct. 1312 (2009) (involving a
warrantless search of a laptop of a passenger who had arrived from overseas travel).

[52]
 Christopher Slobogin, The Search and Seizure of Computers and Electronic Evidence:
Transaction Surveillance by the Government, 75 Miss. L.J. 139, 178. (Hereinafter
Slobogin, Transaction Surveillance).

[53]
 Composed of Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein,
and Peter Swire.

[54]
 Report and Recommendations of The President’s Review Group on Intelligence and
Communications Technologies, 12 December 2013, pp. 116-117 (internal citations
omitted), http://www.whitehouse.gov/sites/default/files/docs/2013-12-
12_rg_final_report.pdf (last visited on 29 December 2013).

[55]
 Commercially available programs are collectively referred to as “snoopware” which
“allows its buyer to track the target well beyond a single website; it accumulates the
addresses of all the Internet locations the target visits, as well as the recipient of the
target’s emails.” Slobogin, Transaction Surveillance at 146. The government surveillance
agencies tend to develop their own version of such programs.

[56]
 Id. at 153.

[57]
 See, e.g., Florida v. Riley, 488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207
(1986) (uniformly holding that aerial surveillance of private homes and surrounding
areas is not a “search” under the Fourth Amendment).

[58]
 This standard, crafted by Mr. Justice Harlan in his separate opinion in Katz v. US, 389
U.S. 347 (1967), has been adopted by this Court to settle claims of unreasonable search
(see, e.g., Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA
189; People v. Johnson, supra note 51).

[59]
 442 U.S. 735 (1979). The earlier ruling in United States v. Miller, 425 U.S. 435 (1976),
found no legitimate privacy expectation over the contents of checks and bank deposit
slips. Unlike in the United States, however, Philippine law treats bank deposits “as of an
absolutely confidential nature” (For deposits in local currency, see Section 2 of Republic
Act No. 1405, as amended. For deposits in foreign currency, see Section 8 of Republic
Act No. 6426, as amended).

[60]
 Id. at 744.

[61]
 Constitution (1935), Article III, Section 1(5) (“The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court or when public
safety and order require otherwise.”); Constitution (1973), Article III, Section 4(1) (“The
privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety and order require otherwise.”); Constitution
(1987), Article III, Section 3(1) (“The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law.”). The inclusion of the phrase “as prescribed
by law” in the 1987 Constitution indicates heightened protection to the right, removing
the executive exemption to the guarantee (on the ground of public safety or order).

[62]
 The protection afforded by Section 3(1), Article III of the Constitution to the privacy of
communication and correspondence is supplemented by the Rule of the Writ of Habeas
Data, effective 2 February 2008, giving judicial relief to “any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the x x x
correspondence of the aggrieved party” (Section 1). If the writ lies, the court hearing the
application for the writ “shall enjoin the act complained of, or order the deletion,
destruction, or rectification of the erroneous data or information x x x.” (Section 16).

[63]
 Klayman v. Obama, 2013 U.S. Dist. LEXIS 176928.

[64]
 Id. at 84-85 (internal citations omitted).

[65]
 Panel’s Report at 744.

[66]
 Id. at 111-112.

[67]
 I J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 135, citing 1971 Constitutional Convention, Session of 25 November
1972.

[68]
 Republic Act No. 4200.

[69]
 Under the Electronic Communications Privacy Act, codified in 18 USC § 3121(a) which
provides: “In General.— Except as provided in this section, no person may install or use
a pen register or a trap and trace device without first obtaining a court order under
section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).” (Emphasis supplied)

[70]
 18 USC § 3121 (c) which provides: “Limitation.— A government agency authorized to
install and use a pen register or trap and trace device under this chapter or under State
law shall use technology reasonably available to it that restricts the recording or
decoding of electronic or other impulses to the dialing, routing, addressing, and
signaling information utilized in the processing and transmitting of wire or electronic
communications so as not to include the contents of any wire or electronic
communications.” (Emphasis supplied)

[71]
 18 USC § 3123(a) (2) which provides: “State investigative or law enforcement officer.
— Upon an application made under section 3122 (a)(2), the court shall enter an ex
parte order authorizing the installation and use of a pen register or trap and trace
device within the jurisdiction of the court, if the court finds that the State law
enforcement or investigative officer has certified to the court that the information likely
to be obtained by such installation and use is relevant to an ongoing criminal
investigation.” (Emphasis supplied)

[72]
 Composed of eleven district court judges appointed by the Chief Justice of the U.S.
Supreme Court.

[73]
 Foreign Intelligence Surveillance Act, codified at 50 USC § 1804(a)(3), 1805(a)(2).

[74]
 50 USC § 1861(b)(2)(A).

[75]
 50 USC § 1861(a)(2)(A).

[76]
 Under the first paragraph of Section 12 which provides: “Law enforcement
authorities, with due cause, shall be authorized to collect or record by technical or
electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.” (Emphasis supplied)

[77]
 Decision, p. 33.

[78]
 While the U.S. law has been criticized as turning courts into “rubber stamps” which
are obliged to issue the order for the installation of recording devices once the applicant
law enforcement officer certifies that the information to be recorded is relevant to an
ongoing criminal investigation (see Slobogin, Transaction Investigation at 154-155), the
objection relates to the degree of judicial participation, not to the law’s structure.

[79]
 Costas Pitas, Report: US Monitored the Phone Calls of 35 World Leaders, REUTERS
http://worldnews.nbcnews.com/_news/2013/10/24/21124561-report-us-monitored-
the-phone-calls-of-35-world-leaders (last visited on 16 December 2013).

[80]
 Supra note 63 at 114-115 (internal citations omitted).

[81]
 Supra note 63 at 109 (emphasis supplied).

[82]
 Dan Roberts, Patriot Act Author Prepares Bill to Put NSA Bulk Collection ‘Out of
Business,’ THE GUARDIAN, 10 October 2013
http://www.theguardian.com/world/2013/oct/10/nsa-surveillance-patriot-act-author-
bill; Andrew Raferty, Obama: NSA Reforms Will Give Americans 'More Confidence' in
Surveillance Programs, NBC NEWS,
http://nbcpolitics.nbcnews.com/_news/2013/12/05/21776882-obama-nsa-reforms-will-
give-americans-more-confidence-in-surveillance-programs (last visited on 16 December
2013).

[83]
 “Global Government Surveillance Reform,”
http://reformgovernmentsurveillance.com/ (last visited on 16 December 2013).

[84]
 Panel’s Report at 27.

[85]
 Id. at 109-111 (internal citations omitted).

[86]
 Id. at 25.

[87]
 Id. at 26.

[88]
 Supra note 1.

[89]
 World Writers Demand UN Charter to Curb State Surveillance, AGENCE FRANCE-
PRESSE, 10 December 2013,
http://www.globalpost.com/dispatch/news/afp/131210/world-writers-demand-un-
charter-curb-state-surveillance.

[90]
 Section 3(e), RA 10175.

[91]
 Chavez v. Gonzales, 569 Phil. 155, 237 (2008), Carpio, J, concurring.
[92]
 Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529,
575-578 (1996) (Mendoza, J., Separate Opinion)

SEPARATE CONCURRING OPINION

BRION, J.:

A. Concurrences & Dissents

Technology and its continued rapid development in the 21st century have been pushing
outward the boundaries of the law, compelling new responses and the redefinition of
fundamental rights from their original formulation; enlarging the need for, and the
means of, governmental regulation; and more importantly, sharpening the collision
between the individual’s exercise of fundamental rights and governmental need for
intervention.

In this kind of collision, the Court – as constitutionally designed – finds itself in the
middle, balancing its duty to protect individuals’ exercise of fundamental rights, with
the State’s intervention (through regulation and implementation) in the performance of
its duty to protect society. It is from this vantage point that the Court, through
the ponencia, closely examined the Cybercrime prevention Act (Cybercrime Law) and
the validity of the various provisions the petitioners challenged.

I write this Separate Concurring Opinion to generally support the  ponencia, although
my vote may be qualified in some provisions or in dissent with respect to others. In line
with the Court’s “per provision” approach and for ease of reference, I have tabulated
my votes and have attached the tabulation and explanation as Annex “A” of this
Separate Opinion.

This Opinion likewise fully explains my vote with a full discussion of my own reasons and
qualifications in the areas where I feel a full discussion is called for. I am taking this
approach in Section 12 of the Cybercrime Law in my vote for its unconstitutionality. My
qualifications come, among others, in terms of my alternative view that would balance
cybercrime law enforcement with the protection of our citizenry’s right to privacy.

I concur with the ponencia’s finding that cyber-libel as defined in Section 4(c)(4) of the

Cybercrime Law does not offend the Constitution. I do not agree, however, with
the ponencia’s ultimate conclusion that the validity is “only with respect to the original
author of the post” and that cyber-libel is unconstitutional “with respect to others who
simply receive the post and react to it.”
I believe that the constitutional status of cyber-libel hinges, not on Section 4(c)(4), but
on the provisions that add to and qualify libel in its application to Internet
communications. For example, as the ponencia does, I find that Section 5[1] of the
Cybercrime Law (which penalizes aiding, abetting or attempting to commit a
cybercrime) is unconstitutional for the reasons fully explained below, and should not
apply to cyber-libel.

I likewise agree with Chief Justice Sereno’s point on the unconstitutionality of

applying Section 6 of the Cybercrime Law (which penalizes crimes committed through
information communications technology) and impose on libel a penalty one degree
higher.

Further, I join Justice Carpio’s call to declare Article 354 of the Revised Penal
Code unconstitutional when applied to libellous statements committed against public
officers and figures, and to nullify the application of Section 7 of the Cybercrime Law to
cyber-libel.

On the other content-related offenses in the Cybercrime Law, I concur with

the ponencia in upholding the constitutionality of Section 4(c)(1) on cybersex and
Section 4(c)(2) on child pornography committed through computer systems, and in
striking down as unconstitutional Section 4(c)(3) for violating the freedom of speech.

I also agree that Section 5[2] of the Cybercrime Law, in so far as it punishes aiding,
abetting or attempting to commit online commercial solicitation, cyber-libel and online
child pornography, violates the Constitution.

Lastly, I partially support the ponencia’s position that Section 19[3] of the Cybercrime

Law (which empowers the Secretary of the Department of Justice to restrict or block
access to computer data found to be in violation of its provisions) is unconstitutional for
violating the right to freedom of expression.

B. My Positions on Cyber-libel

B.1. The Core Meaning and Constitutionality of Section 4(c)(4)

Based on a facial examination of Section 4(c)(4) of the Cybercrime Law, I find no reason
to declare cyber-libel or the application of Section 355 of the Revised Penal Code (that
penalizes libel made in print and other forms of media, to Internet communications)
unconstitutional.

Laws penalizing libel normally pit two competing values against each other – the
fundamental right to freedom of speech on one hand, and the state interest’s to protect
persons against the harmful conduct of others. The latter conduct pertains to scurrilous
speech that damages the reputation of the person it addresses. Jurisprudence has long
settled this apparent conflict by excluding libelous speech outside the ambit of the
constitutional protection.[4] Thus, the question of whether a libelous speech may be
penalized by law – criminally or civilly – has already been answered by jurisprudence in
the affirmative.

Article 355 of the Revised Penal Code penalizes “libel[5] committed by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.” Section 4(c)(4) of the Cybercrime
Law merely extends the application of Article 355 to “communications committed
through a computer system, or any other similar means which may be devised in the
future.” It does not, by itself, redefine libel or create a new crime – it merely adds a
medium through which libel may be committed and penalized. Parenthetically, this
medium – under the statutory construction principle of ejusdem generis – could already
be included under Article 355 through the phrase “any similar means.”

Thus, I fully support the constitutionality of Section 4(c)(4) as it stands by itself; its
intended effect is merely to erase any doubt that libel may be committed through
Internet communications.[6] However, my support stops there in light of the
qualifications under the law’s succeeding provisions.

B.2. Sections 5, 6 & 7 of the Cybercrime Law

In the process of declaring internet defamatory statements within the reach of our libel
law, the Cybercrime Law also makes the consequences of cyber-libel far graver than
libelous speech in the real world. These consequences result from the application of
other provisions in the Cybercrime Law that Congress, in the exercise of its policy-
making power, chose to impose upon cybercrimes.

Thus, the law, through Section 5, opts to penalize the acts of aiding, abetting, and
attempting to commit a cybercrime; increases the penalty for crimes committed by,
through and with the use of information and communications technologies in Section 6;
and clarifies that a prosecution under the Cybercrime Law does not ipso facto bar a
prosecution under the Revised Penal Code and other special laws in Section 7.

In my view, the application of these provisions to cyber-libel unduly increases the

prohibitive effect of libel law on online speech, and can have the effect of imposing self-
censorship in the Internet and of curtailing an otherwise robust avenue for debate and
discussion on public issues. In other words, Section 5, 6 and 7 should not apply to cyber-
libel, as they open the door to application and overreach into matters other than
libelous and can thus prevent protected speech from being uttered.
Neither do I believe that there is sufficient distinction between libelous speech
committed online and speech uttered in the real, physical world to warrant increasing
the prohibitive impact of penal law in cyberspace communications.

The rationale for penalizing defamatory statements is the same regardless of the
medium used to communicate it. It springs from the state’s interest and duty to protect
a person’s enjoyment of his private reputation.[7] The law recognizes the value of private
reputation and imposes upon him who attacks it – by slanderous words or libelous
publications – the liability to fully compensate for the damages suffered by the wronged
party.[8]

I submit that this rationale did not change when libel was made to apply to Internet
communications. Thus, cyber-libel should be considered as the State’s attempt to
broaden the protection for a person’s private reputation, and its recognition that a
reputation can be slandered through the Internet in the same way that it can be
damaged in the real world.[9]

A key characteristic of online speech is its potential to reach a wider number of people
than speech uttered in the real world. The Internet empowers persons, both public and
private, to reach a wider audience – a phenomenon some legal scholars pertain to as
“cyber-reach.”[10] Cyber-reach increases the number of people who would have
knowledge of a defamatory statement – a post published by a person living in the
Philippines, for instance, can reach millions of people living in the United States, and
vice versa. It could thus be argued that an increase in the audience of a libelous
statement made online justifies the inhibitive effect of Section 5, 6, and 7 on online
speech.

I find this proposition to be flawed. Online speech has varying characteristics, depending
on the platform of communications used in the Internet. It does not necessarily mean,
for instance, that a libelous speech has reached the public or a wider audience just
because it was communicated through the Internet. A libelous statement could have
been published through an e-mail, or through a private online group, or through a public
website – each with varying degrees in the number of people reached.

I also find it notable that the publicity element of libel in the Revised Penal Code does
not take into consideration the amount of audience reached by the defamatory
statement. For libel prosecution purposes, a defamatory statement is considered
published when a third person, other than the speaker or the person defamed, is
informed of it.[11] Libelous speech may be penalized when, for instance, it reaches a third
person by mail,[12] or through a television program,[13] or through a newspaper article
published nationwide.[14] All these defamatory imputations are punishable with the
same penalty of prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos or both.[15]
Penalizing libelous speech committed through the Internet with graver penalties and
repercussions because it allegedly reaches a wider audience creates an unreasonable
classification between communications made through the Internet and in the real,
physical world, to the detriment of online speech. I find no basis to treat online speech
and speech in the real world differently on account of the former’s cyber-reach because
Article 355 of the Revised Penal Code does not treat libel committed through various
forms of media differently on account of the varying numbers of people they reach.

In other words, since Article 355 of the Revised Penal Code does not distinguish among
the means of communications by which libel is published, the Cybercrime Law, which
merely adds a medium of communications by which libel may be committed, should
also not distinguish and command a different treatment than libel in the real world.

Notably, the enumeration of media in Article 355 of the Revised Penal Code have for
their common characteristic, not the audience a libelous statement reaches, but their
permanent nature as a means of publication.[16] Thus, cyber-libel’s addition of
communications through the Internet in the enumeration of media by which libel may
be committed is a recognition that it shares this common characteristic of the media
enumerated in Article 355 of the RPC, and that its nature as a permanent means of
publication injures private reputation in the same manner as the enumeration in Article
355 does.

Neither should the ease of publishing a libelous material in the Internet be a

consideration in increasing the penalty for cyber-libel. The ease by which a libelous
material may be published in the Internet, to me, is counterbalanced by the ease
through which a defamed person may defend his reputation in the various platforms
provided by the Internet - a means not normally given in other forms of media.

Thus, I agree with the ponencia that Section 5[17] of the Cybercrime Law, which

penalizes aiding, abetting, or attempting to commit any of the cybercrimes enumerated
therein, is unconstitutional in so far as it applies to the crime of cyber-libel. As
the ponente does, I believe that the provision, when applied to cyber-libel, is vague and
can have a chilling effect on otherwise legitimately free speech in cyberspace.

I further agree with the Chief Justice’s argument that it would be constitutionally
improper to apply the higher penalty that Section 6 imposes to libel.

Section 6[18] qualifies the crimes under the Revised Penal Code and special laws when
committed by, through and with the use of information and communications
technologies, and considers ICT use as an aggravating circumstance that raises the
appropriate penalties one degree higher. As Chief Justice Sereno points out, Section 6
not only considers ICT use to be a qualifying aggravating circumstance, but also has the
following effects: first, it increases the accessory penalties of libel; second, it disqualifies
the offender from availing of the privilege of probation; third, it increases the
prescriptive period for the crime of libel from one year to fifteen years, and the
prescriptive period for its penalty from ten years to fifteen years; and fourth, its impact
cannot be offset by mitigating circumstances.

These effects, taken together, unduly burden the freedom of speech because the
inhibiting effect of the crime of libel is magnified beyond what is necessary to prevent its
commission.

I also agree with Justice Carpio that the application of Section 7 to cyberlibel should be
declared unconstitutional. By adopting the definition of libel in the Revised Penal Code,
Section 4(c)(4)’s definition of cyberlibel penalizes the same crime, except that it is
committed through another medium enumerated in Article 355. Thus, Section 7 exposes
a person accused of uttering a defamatory statement to multiple prosecutions under
the Cybercrime Law and the Revised Penal Code for the same utterance. This creates a
significant chill on online speech, because the gravity of the penalties involved could
possibly compel Internet users towards self-censorship, and deter otherwise lawful
speech.

B.3. Article 354 of the Revised Penal Code

Lastly, I join in Justice Carpio’s call for the Court to declare Article 354 of the Revised
Penal Code as unconstitutional in so far as it applies to public officers and figures.

The petitions against the Cybercrime Law provide us with the opportunity to clarify,
once and for all, the prevailing doctrine on libel committed against public officers and
figures. The possibility of applying the presumed malice rule against this kind of libel
hangs like a Damocles sword against the actual malice rule that jurisprudence
established for the prosecution of libel committed against public officers and figures.

The presumed malice rule embodied in Article 354[19] of the Revised Penal Code provides
a presumption of malice in every defamatory imputation, except under certain
instances. Under this rule, the defamatory statement would still be considered as
malicious even if it were true, unless the accused proves that it was made with good and
justifiable intentions.

Recognizing the importance of freedom of speech in a democratic republic, our

jurisprudence has carved out another exception to Article 354 of the Revised Penal
Code. Through cases such as Guingguing v. Court of Appeals[20] and Borjal v. Court of
Appeals,[21] the Court has applied the actual malice rule in libel committed against public
officers and figures. This means that malice in fact is necessary for libel committed
against public officers and figures to prosper, i.e., it must be proven that the offender
made the defamatory statement with the knowledge that it is false or with reckless
disregard of whether it is false or not. As the Court held in Guinguing, adopting the
words in New York Times v. Sullivan:[22]: “[w]e have adopted the principle that debate on
public issues should be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on government and public
officials.”

I agree with Justice Carpio’s point regarding the necessity of a concrete declaration from
the Court regarding Article 354’s unconstitutional application to libelous speech against
public officers and officials. To neglect our duty to clarify what the law would amount to
and leave a gap in the implementation of our laws on libel, in the words of Justice
Carpio, would “leave[s] fundamental rights of citizens to freedom of expression to the
mercy of the Executive’s prosecutorial arm whose decision to press charges depends on
its own interpretation of the penal provision’s adherence to the Bill of Rights.”

This need for a clear signal from the Court has become even more pronounced given the
current nature of the Internet – now a vibrant avenue for dialogue and discussion on
matters involving governance and other public issues, with the capacity to allow
ordinary citizens to voice out their concerns to both the government and to the public in
general.

B.4. Summation of Constitutionality of Section 4(c)(4)

With the four provisions – i.e., Section 5, Section 6 and Section 7 of the Cybercrime

Law and Article 354 of the Revised Penal Code, removed from cyber-libel, Section 4(c)
(4) would present a proper balance between encouraging freedom of expression and
preventing the damage to the reputation of members of society. Conversely, the
presence of either one of these three provisions could tilt this delicate balance against
freedom of expression, and unduly burden the exercise of our fundamental right.
Thus, hand in hand with the recognition of the constitutionality of Section 4(c)(4) of
the Cybercrime Law under a facial challenge, the four mentioned provisions should
likewise be struck down as unconstitutional.

C. My Positions on Section 12 of the Cybercrime Law

In agreeing with the ponencia’s conclusion regarding the unconstitutionality of Section

12, I begin by emphasizing the point that no all-encompassing constitutional right to
privacy exists in traffic data. I stress the need to be sensitive and discerning in
appreciating traffic data as we cannot gloss over the distinctions between content data
and traffic data, if only because of the importance of these distinctions for law
enforcement purposes.

The right to privacy over the content of internet communications is a given, as

recognized in many jurisdictions.[23] Traffic data should likewise be recognized for what
they are – information necessary for computer and communication use and, in this
sense, are practically open and freely-disclosed information that law enforcers may
examine.

But beyond all these are information generated from raw traffic data on people’s
activities in the Internet, that are collected through real-time extended surveillance and
which may be as private and confidential as content data. To my mind, the grant to law
enforcement agents of the authority to access these data require a very close and
discerning examination to determine the grant’s constitutionality.

I justify my position on the unconstitutionality of Section 12 as it patently lacks proper

standards guaranteeing the protection of data that should be constitutionally-
protected. In more concrete terms, Section 12 should not be allowed – based solely on
law enforcement agents’ finding of ‘due cause’ – to serve as authority for the
warrantless real-time collection and recording of traffic data.

Lastly, I clarify that the nullification of Section 12 does not absolutely bar the real-time
collection of traffic data, as such collection can be undertaken upon proper application
for a judicial warrant. Neither should my recommended approach in finding the
unconstitutionality of Section 12 prevent Congress, by subsequent legislation, from
authorizing the conduct of warrantless real-time collection of traffic data provided that
proper constitutional safeguards are in place for the protection of affected
constitutional rights.

C.1 The constitutional right to privacy in Internet communications data

The right to privacy essentially means the right to be let alone and to be free from
unwarranted government intrusion.[24] To determine whether a violation of this right
exists, a first requirement is to ascertain the existence of a reasonable expectation of
privacy that the government violates. The reasonable expectation of privacy can be
made through a two-pronged test that asks: (1) whether, by his conduct, the individual
has exhibited an expectation of privacy; and (2) whether this expectation is one that
society recognizes as reasonable. Customs, community norms, and practices may,
therefore, limit or extend an individual’s "reasonable expectation of privacy."[25] The
awareness of the need for privacy or confidentiality is the critical point that should
dictate whether privacy rights exist.

The finding that privacy rights exist, however, is not a recognition that the data shall be
considered absolutely private;[26] the recognition must yield when faced with a
compelling and fully demonstrated state interest that must be given primacy. In this
exceptional situation, the balance undeniably tilts in favor of government access or
intrusion into private information. Even then, however, established jurisprudence still
requires safeguards to protect privacy rights: the law or rule allowing access or intrusion
must be so narrowly drawn to ensure that other constitutionally-protected rights
outside the ambit of the overriding state interests are fully protected.[27]

The majority of the Court in Ople v. Torres,[28] for instance, found the repercussions and
possibilities of using biometrics and computer technologies in establishing a National
Computerized Identification Reference System to be too invasive to allow Section 4 of
Administrative No. 308 (the assailed regulation which established the ID system) to pass
constitutional muster. According to the majority, the lack of sufficient standards in
Section 4 renders it vague and overly broad, and in so doing, was not narrowly fitted to
accomplish the state’s objective. Thus, it was unconstitutional for failing to ensure the
protection of other constitutionally-protected privacy rights.

Other governmental actions that had been declared to be constitutionally infirm for
failing the compelling state interest test discussed above include the city ordinance
barring the operation of motels and inns within the Ermita-Malate area in City of Manila
v. Laguio Jr.,[29] and the city ordinance prohibiting motels and inns from offering short-
time admission and pro-rated or “wash up” rates in White Light Corporation v. City of
Manila.[30] In both cases, the Court found that the city ordinance overreached and
violated the right to privacy of motel patrons, both single and married.

C.2 Traffic and Content Data 

The Internet serves as a useful technology as it facilitates communication between

people through the application programs they use. More precisely, the Internet is “an
electronic communications network that connects computer networks and
organizational computer facilities around the world.”[31] These connections result in
various activities online, such as simple e-mails between people, watching and
downloading of videos, making and taking phone calls, and other similar activities, done
through the medium of various devices such as computers, laptops, tablets and mobile
phones.[32]

Traffic data refer to the computer data generated by computers in communicating to

each other to indicate a communication’s origin, destination, route, time, date, size,
duration or type of underlying service.[33] These data should be distinguished
from content data which contain the body or message of the communications sent.
[34]
 Traffic data do not usually indicate on their face the actual identity of the sender of
the communication; the content data, on the other hand, usually contain the identity of
sender and recipient and the actual communication between them.

It must also be appreciated that as the technology now exists, data (both traffic and
content) are usually sent through the Internet through a packet-switching network. The
system first breaks down the materials sent into tiny packets of data which then pass
through different networks until they reach their destination where they are
reassembled into the original data sent.

These tiny packets of data generally contain a header and a payload.

The header contains the overhead information about the packet, the service and other
transmission-related information. It includes the source and destination of the data, the
sequence number of the packets, and the type of service, among others. The payload,
on the other hand, contains the actual data carried by the packet.[35] Traffic data may be
monitored, recorded and collected from the headers of packets.[36]

I hold the view, based on the above distinctions and as the ponencia did, that no
reasonable expectation of privacy exists in traffic data as they appear in the header, as
these are data generated in the course of communications between or among the
participating computers or devices and intermediary networks. The absence of any
expectation is based on the reality that the traffic data: are open as they pass through
different unknown networks;[37] cannot be expected to be private as they transit on the
way to their intended destination; and are necessarily identified as they pass from
network to network. In contrast, the content data they contain remain closed and
undisclosed, and do not have to be opened at all in order to be transmitted. The
unauthorized opening of the content data is in fact a crime penalized under the
Cybercrime Law.[38]

For a clearer analogy, traffic data can be likened to the address that a person sending an
ordinary mail would provide in the mailing envelope, while the size of the
communication may be compared to the size of the envelope or package mailed
through the post office. There can be no reasonable expectation of the privacy in the
address appearing in the envelope and in the size of the package as it is sent through a
public network of intermediary post offices; they must necessarily be read in these
intermediary locations for the mail to reach its destination.

A closer comparison can be drawn from the number dialed in using a telephone, a
situation that the US Supreme Court had the opportunity to pass upon in Smith v.
Maryland[39] when it considered the constitutionality of the Pen Register Act.[40] The US
Court held that the Act does not violate the Fourth Amendment (the right to privacy)
because no search is involved; there could be no reasonable expectation of privacy in
the telephone numbers that a person dials. All telephone users realize that they must
“convey” phone numbers to the telephone company whose switching equipment serve
as medium for the completion of telephone calls.

As in the case of the regular mail and the use of numbers in communicating by
telephone, privacy cannot be reasonably expected from traffic data per se, because
their basic nature – data generated in the course of sending communications from a
computer as communications pass through a public network of intermediate computers.
To complete the comparison between transfer data and content data, an individual
sending an e-mail through the Internet would expect at least the same level of privacy in
his email’s content as that enjoyed by the mail sent through the post office or in what is
said during a telephone conversation. Expectations regarding the confidentiality of
emails may in fact be higher since their actual recipients are not identified by their
actual names but by their email addresses, in contrast with regular mails where the
addresses in the envelopes identify the actual intended recipients and are open to the
intermediary post offices through which they pass.

At the same level of privacy are the information that an Internet subscriber furnishes
the Internet provider. These are also private data that current data privacy
laws[41] require to be accurate under the guarantee that the provider would keep them
secure, protected, and for use only for the purpose for which they have been collected.

For instance, a customer buying goods from a website used as a medium for purchase or
exchange, can expect that the personal information he/she provides the website would
only be used for facilitating the sales transaction.[42] The service provider needs the
customer’s consent before it can disclose the provided information to others; otherwise,
criminal and civil liability can result.[43] This should be a reminder to service providers
and their staff who sell telephone numbers and addresses to commercial companies for
their advertising mailing lists.

Notably, social networking websites allow its subscribers to determine who would view
the information the subscribers provide, i.e., whether the information may be viewed by
the public in general, or by a particular group of persons, or only by the subscriber.
[44]
 Like the contents of Internet communications, the user and the public in general
expect these information to be private and confidential.

In the context of the present case where the right to privacy is pitted against
government intrusion made in the name of public interest, the intrinsic nature of traffic
data should be fully understood and appreciated because a miscalibration may carry
profound impact on one or the other.

In concrete terms, casting a net of protection wider than what is necessary to protect
the right to privacy in the Internet can unduly hinder law enforcement efforts in
combating cybercrime. Raw traffic data raise no expectation of privacy and should not
be beyond the reach of law enforcers. At the opposite end, constitutionally allowing the
unregulated inspection of Section 12 may unwittingly allow government access or
intrusion into data greater than what the public recognizes or would allow, resulting in
the violation of privacy rights.

A miscalibration may immediately affect congressional action addressing the balancing

between the privacy rights of individuals and investigative police action. The recognition
of the right to privacy over raw traffic data may curtail congressional action by
practically requiring Congress to increase the required governmental interest not only
for the real-time surveillance and collection of traffic data, but also for simple police
investigative work. The effect would of course be most felt at the level of field law
enforcement where officers would be required to secure a higher level of compelling
governmental interest simply to look at raw traffic data even on a non-surveillance
situation. Using the above email analogy, it may amount to requiring probable cause to
authorize law enforcement to look at an address in a mailing envelope coursed through
the public post office.

Not to be forgotten is the reality that information and communication technology –

particularly on the transmission, monitoring and encryption of data – is continuously
evolving with no foreseeable end in sight. In the words of Justice Scalia in Kyllo v. United
States,[45] a case pitting the right to privacy with the law enforcement’s use of thermal
imaging devices: “the rule we adopt must take account of more sophisticated systems
that are already in use or in development.”[46]

This Court, made aware of this reality, must similarly proceed with caution in exercising
its duty to examine whether a law involving the regulation of computers and cyber
communications transgresses the Constitution. If we must err, we should do so in favor
of slow and carefully calibrated steps, keeping in mind the possible and foreseeable
impact of our decisions on future technology scenarios and on our jurisprudence. After
all, our constitutionally-designed role is merely to interpret policy as expressed in the
law and rules, not to create policy.

C.3 Data collected from Online Activities – the midway point between traffic data and
content data.

While traffic data can practically be considered as disclosed (and consequently, open
and non-confidential) data, they can – once collected and recorded over a period of
time, or when used with other technologies – reveal information that the sender and
even the general public expect to be private and confidential.

This potential use of raw traffic data serves as the limit for the analogy between traffic
data and the addresses found in envelopes of regular mails. Mailed letters exist in the
physical world and, unless coursed through one central post office, can hardly be
monitored for a recognizable pattern of activities that can yield significant data about
the writer or the recipient.

In contrast, the Internet allows the real-time sending and receiving of information at any
given time, to multiple recipients who may be sending and receiving their own
information as well. This capability and the large amount of traffic that ensues in real
time open wide windows of opportunity for analysis of the ensuing traffic for trends and
patterns that reveal information beyond the originally collected and recorded raw traffic
data. For example, the analysis may provide leads or even specifically disclose the actual
geographical location of the sender or recipient of the information, his online activity,
the websites he is currently browsing, and even possibly the content of the information
itself.

It is at this point that the originally raw traffic data mass cross over and partake of the
nature of content data that both the individual and the public expect to be private.
Evidently, privacy interests arise, not from the raw data themselves, but from the
resulting conclusions that their collection and recording yield. Thus, violation of any
existing constitutional right starts at this point. From the point of view of effective
constitutional protection, the trigger is not at the point of the private information end
result, but at the point of real-time collection and recording of data that, over time and
with analysis, yield private and confidential end result. In other words, it is at the
earliest point that safeguards must be in place.

That this aspect of Internet use may no longer simply be an awaited potential but is
already a reality now with us, can be discerned from what computer pundits say about
the application of proper traffic analysis techniques to the traffic data of phone calls
conducted through the Internet (also known as Voice Over Internet Protocol or VOIP).
They claim that this analysis can reveal the language spoken and the identity of the
speaker, and may even be used to reconstruct the actual words spoken during the
phone conversation.[47] Others, on the other hand, have tested the possibility of inferring
a person’s online activities for short periods of time through traffic data analysis.[48]

Recent developments in the Internet, such as the rise of Big Data[49] and the Internet of
Things,[50] also serve as evidence of the realization of these possibilities, as people share
more and more information on how they conduct their daily activities in the Internet
and on how these information are used to perform other tasks. Right now, wireless
signal strength in multiple monitoring locations may be used to accurately estimate a
user’s location and motion behind walls.[51] With the advent of the Internet of Things,
which equips devices with sensors that allow the direct gathering of information in the
physical world for transmission to the Internet, even seemingly innocuous traffic data,
when collected, may possibly reveal even personal and intimate details about a person
and his activities.

Thus, I believe it indisputable that information gathered from purposively collected and
analyzed raw traffic data, now disclose information that the Internet user never
intended to reveal when he used the Internet. These include the language used in a
phone conversation in the Internet, the identity of the speaker, the content of the
actual conversation, as well as a person’s exact location inside his home. From this
perspective, these data, as collected and/or analyzed from online activities, are no
different from content data and should likewise be protected by the right to privacy.

C.4 Deficiencies of Section 12

Section 12 of the Cybercrime Law authorizes law enforcement agents to collect and
record in real-time traffic data associated with specified communications, under the
following terms:

Section 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with
due cause, shall be authorized to collect or record by technical or electronic means
traffic data in real-time associated with specified communications transmitted by means
of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed: (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

I have no doubt that the state interest that this section seeks to protect is a compelling
one. This can be gleaned from Section 2 of the Cybercrime Law which clearly sets out
the law’s objective – to equip the State with sufficient powers to prevent and combat
cybercrime. The means or tools to this objective, Section 12 among them, would enable
our law enforcers to investigate incidences of cybercrime, and apprehend and prosecute
cybercriminals. According to the Department of Justice, nearly nine out of ten Filipino
Internet users had been victims of crimes and malicious activities committed online.
Contrast this to the mere 2,778 cases of computer crimes referred to the Anti-
Transnational Crime Division (ATCD) of the Criminal Investigation and Detection Group
(CIDG) of the Philippine National Police (PNP) from 2003 to 2012,[52] to get a picture of
just how vulnerable the citizenry is to computer-related crimes.

But bad might the situation be and as already mentioned in passing above, a
demonstrated and compelling state interest effectively serves only as starting point and
basis for the authority to grant collection and recording authority to state agents faced
with clearly established right to privacy. In addition to and as equally important as the
invoked compelling state interest, is the requirement that the authorizing law or rule
must provide safeguards to ensure that no unwarranted intrusion would take place to
lay open the information or activities not covered by the state interest involved; the law
or rule must be narrowly drawn to confine access to what the proven state interests
require.

I submit that, on its face, Section 12 fails to satisfy this latter constitutional requirement.
In Section 12 terms, its “due cause” requirement does not suffice as the safeguard that
the Constitution requires.

My examination of Section 12 shows that it properly deals with the various types of data
that computer communication generates, i.e., with traffic data per se, with data other
than the defined traffic data (thus, of content data), and with the real-time collection of
these data over time. The law, however, is wanting on the required safeguards when
private data are accessed.

True, traffic data per se does not require any safeguard or measure stricter than the
“due cause” that the law already requires, while content data can be accessed only on
the basis of a judicial warrant. The real time collection and recording of traffic data and
its “due cause” basis, however, suffer from fatal flaws.

The law’s “due cause” standard is vague in terms of the substance of what is “due
cause” and the procedure to be followed in determining the required “cause”. The law
is likewise overly broad so that real-time monitoring of traffic data can effectively
overreach its allowable coverage and encroach into the realm of constitutionally-
protected activities of Internet users, specifically, data that a cybercrime may not even
address.

Consider, in this regard, that as worded, law enforcement agents, i.e., members of the
National Bureau Investigation (NBI) and the Philippine National Police (PNP),
[53]
 practically have carte blanche authority to conduct the real-time collection and
recording of traffic data at anytime and on any Internet user, given that the law does
not specifically define or give the parameters of the purpose for which law enforcement
authorities are authorized to conduct these intrusive activities. Without sufficient
guiding standards, the “due cause” basis in effect allows law enforcement agents to
monitor all traffic data. This approach, to my mind, may even allow law enforcement to
conduct constitutionally-prohibited fishing expeditions for violations and their
supporting evidence.

Additionally, while Section 2 empowers the State to adopt sufficient powers to

conduct the detection, investigation and prosecution of cybercrime as an expressed
policy, Section 12, however, does not provide a standard sufficient to render
enforcement rules certain or determinable; it also fails to provide guiding particulars on
the real-time monitoring of traffic data. Assuming that the Cybercrime Law
contemplates that real-time collection of traffic data would assist in criminal
investigations, the provision does not provide any specified or determinable trigger for
this activity -- should collection and recording be connected with criminal investigation
in general? Is it necessary that a cybercrime has already been committed, or could it be
used to prevent its commission? Would it only apply to investigations on cybercrime, or
would it include investigations on crimes in the physical world whose aspects have
seeped into the Internet?

In the absence of standards, guidelines or clean definitions, the ‘due cause’ requirement
of Section 12 fatally opens itself to being vague as it does not even provide the context
in which it should be used. It merely provides that the real-time monitoring would be
related to ‘specified communications’ without mentioning as to what these
communications pertain to, how these communications will be specified, and as well as
the extent of the specificity of the communications.

Section 12 likewise does not provide for the extent and depth of the real-time collection
and recording of traffic data. It does not limit the length of time law enforcement agents
may conduct real-time monitoring and recording of traffic data, as well as the allowable
contours by which a specified communication may be monitored and recorded. In other
words, it does not state how long the monitoring and recording of the traffic data
connected to a specified communication could take place, how specific a specified
communication should be, as well as the extent of the association allowable.

The absolute lack of standards in the collection and recording of traffic data under
Section 12 in effect negates the safeguards under Section 13 of the Cybercrime Law.
Section 13 obligates internet service providers to collect and store traffic data for six
months, which data law enforcement agents can only access based on a judicial order
under Section 14. Properly understood, Section 13 is a recognition that traffic data once
collected in depth and for a considerable period of time, would produce information
that are private. But because Section 12 does not specify the length and extent of the
real-time collection, monitoring and storage of traffic data, it in effect skirts the judicial
warrant requirement before any data may be viewed under Section 13. The limitation in
this section also does not also apply if the law enforcement agency has its own
collection and recording facilities, a possibility that in these days is not farfetched.

Neither does Section 12 as worded sufficiently limit the information that would be
collected and recorded in real-time only to traffic data. The lack of standards in Section
12 regarding the extent and conduct of the real-time collection and recording of traffic
data effectively allows for its collection in bulk, which, as earlier pointed out, reveals
information that are private. The lack of standards also does not prevent the possibility
of using technologies that translates traffic data collected in real-time to content data or
disclose a person’s online activities.

Significantly, the Cybercrime Law’s omissions in limiting the scope and conduct of the
real-time collection and recording of traffic data cannot be saved by statutory
construction; neither could it be filled-in by implementing rules and regulations. We can
only construe what the law provides, harmonize its provisions and interpret its
language. We cannot, no matter how noble the cause, add to what is not provided in
the law.

The same limitation applies to law enforcement agents in the implementation of a law –
assuming they have been delegated to provide for its rules and regulations. They
cannot, in fixing the details of a law’s implementation, legislate and add to the law that
they seek to implement.

Given the importance of Section 12 in cybercrime prevention and its possible impact on
the right to privacy, we cannot, in interpreting a law, usurp what is rightfully the
Congress’s duty and prerogative to ensure that the real-time collection of traffic data
does not overreach into constitutionally-protected activities. In other words, it is
Congress, through law, which should draw the limits of traffic data collection. Our duty
in the Court comes only in determining whether these limits suffice to meet the
principles enshrined in the Constitution.

In sum, as worded, the authorization for a warrantless real-time collection and

recording of traffic data is not narrowly drawn to ensure that it would not encroach
upon the privacy of Internet users online. Like A.O. No. 308 in Ople v. Torres, Section 12
of the Cybercrime threatens the right to privacy of our people, and should thus be
struck down as unconstitutional.

D. Implications for law enforcement of the unconstitutionality of Sec. 12

The Court has, in addition to its constitutional duty to decide cases and correct
jurisdictional errors, the duty to provide guidance to the bench and bar.[54] It is in
consideration of this duty, as well as the pressing need for balance between the
investigation and prosecution of cybercrimes and the right to privacy, that I discuss the
repercussions of my proposed ruling on law enforcement.

The declaration of the unconstitutionality of Section 12 in the manner framed by the

Court, should not tie the hands of Congress in enacting a replacement provision
empowering the conduct of warrantless real-time collection of traffic data by law
enforcement agents. This grant of power should of course avoid the infirmities of the
present unconstitutional provision by providing for standards and safeguards to protect
private data and activities from unwarranted intrusion.
I clarify as well that the unconstitutionality of Section 12 does not remove from the
police the authority to undertake real-time collection and recording of traffic data as an
investigation tool that law enforcement agents may avail of in the investigation and
prosecution of criminal offenses, both for offenses involving cybercrime and ordinary
crimes. Law enforcement agencies may still conduct these activities under their general
powers, but with a prior judicial authorization in light of the nature of the data to be
collected. To cite an example in today’s current crime situation, this tool may effectively
be used against the drug menace whose leadership has so far evaded arrest and whose
operations continue despite police interdiction efforts.

Notably, Section 24 of Republic Act No. 6975 empowers the Philippine National Police to
enforce all laws and ordinances relative to the protection of lives and properties;
maintain peace and order and take all necessary steps to ensure public safety;
investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution; and to exercise the general powers to make
arrest, search and seizure in accordance with the Constitution and pertinent laws.

Section 1 of Republic Act No. 157 as amended, on the other hand, mandates the
National Bureau of Investigation to investigate crimes and other offenses against
Philippine laws, assist, upon request, in the investigation or detection of crimes, and to
establish and maintain an up-to-date scientific crime laboratory and to conduct
researches in furtherance of scientific knowledge in criminal investigation.

These laws sufficiently empower the PNP and the NBI to make use of up-to-date
equipment in the investigation of crimes and in the apprehension and prosecution of
criminals, including cybercriminals. The PNP is particularly empowered to undertake
search and seizure under RA 6975. The need for a judicial warrant does not need be a
stumbling block in these efforts in the sensitive area of Internet data, as the grant of
warrant is merely a question of the existence of a probable cause, proven of course
according to the requirements of the Constitution.

E. The role of the courts in cybercrime prevention and prosecution

Internet has significantly changed the way crimes are committed, and has paved the
way for the emergence of new crimes committed in a totally different plane: from the
previous real, physical world, to the abstract, borderless plane of interconnected
computers linked through the Internet.

In the same manner that technology unleashed these new threats to security and peace,
it also devised new means to detect, apprehend and prosecute those who threaten
society. The Cybercrime Law is notable in its aim to penalize these new threats, and in
giving clear signals and actually empowering our law enforcement agents in the
investigation of these cybercrimes, in the apprehension of cybercriminals, and in the
prosecution of cases against them.

In the same manner likewise that our laws and law enforcement have been adapting to
the threats posed by cybercrime, we in the judiciary must also rise up to the challenge
of competently performing our adjudicative functions in the cyber world.

The judicial steps in cybercrime prosecution start as early as the investigation of

cybercrimes, through the issuance of warrants necessary for real-time collection of
traffic data, as well as the issuance of the orders for the disclosure of data retained by
internet service providers.[55] After these, courts also determine the probable cause for
the arrest of suspects accused of committing cybercrimes. The suspect’s arrest would
then lead to a trial that, depending on the suspect’s conviction or acquittal, could then
go through the judiciary appellate process. During trial, pieces of evidence would be
presented and testimonies heard, and trial courts would then exercise their
constitutional duty to adjudicate the cases brought before them.

Judicial involvement in all these processes requires the handling members of the
Judiciary to be computer literate, at the very least. We cannot fully grasp the
methodologies and intricacies of cybercrimes unless we have a basic understanding of
how the world of computers operates. From the point of law, basic knowledge must be
there to grasp how cybercrimes may be proven before us during trial, and what
constitutes the evidentiary threshold that would allow us to determine, beyond
reasonable doubt, that the person accused really did commit a cybercrime.

For instance, I agree with the Solicitor General’s observation that time is of the utmost
essence in cybercrime law enforcement, as the breadth and speed of technology make
the commission of these crimes and the subsequent destruction of its evidence faster
and easier. To my mind, our current rules of procedure for the issuance of search
warrants might not be responsive enough to effectively track down cybercriminals and
obtain evidence of their crimes. Search warrants for instance, might be issued too late
to seize evidence of the commission of a cybercrime, or may not properly describe what
should be seized, among others.

Due to the highly-technical nature of investigating and prosecuting cybercrimes, as well

as the apparent need to expedite our criminal procedure to make it more responsive to
cybercrime law enforcement, I propose that special cybercrime courts be designated
to specifically handle cases involving cybercrime. In addition, these cybercrime courts
should have  their own rules of procedure tailor-fitted to respond to the technical
requirements of cybercrime prosecution and adjudication.

The designation of special cybercrime courts of course is not outside our power to
undertake: Section 21[56] of the Cybercrime Law grants the Regional Trial Courts
jurisdiction over any violation of the Cybercrime Law, and provides that special
cybercrime courts manned by specially trained judges should be designated. Section 5,
Article VIII of the 1987 Constitution,[57] on the other hand, empowers this Court to
promulgate rules on the pleading, practice, and procedure in all courts.

As with every petition involving the constitutionality of a law, we seek to find the proper
balance between protecting a society where each individual may lawfully enjoy his or
her fundamental freedoms, and where the safety and security of the members of
society are assured through proper regulation and enforcement. In the present petition,
I agree with the ponencia that the Cybercrime Law is improperly tilted towards
strengthening law enforcement, to the detriment of our society’s fundamental right to
privacy. This is highlighted by the law’s position under Section 12 which, as discussed,
goes beyond what is constitutionally permissible. Beyond this finding, however, we need
to provide – within the limits of our judicial power, remedies that will still allow effective
law enforcement in the cyber world. It is in these lights that I urge my colleagues in this
Court to consider the immediate training and designation of specialized cybercrime
courts and the drafting of their own rules of procedure.

As I mentioned in the opening statements of this Concurring Opinion, I have prepared a

table for easy reference to my votes. This table is attached as Annex “A” and is made an
integral part this Opinion.

[1]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[2]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[3]
 Section 19. Restricting or Blocking Access to Computer Data. — When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ shall
issue an order to restrict or block access to such computer data.
[4]
 Guinguing v. Court of Appeals, 508 Phil. 193, 197 – 198 (2005).

See: Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A

Commentary, 2003 Edition, p. 272;

In as early as 1909, our jurisprudence in US v. Sedano has recognized the

constitutionality of libel, noting that “the provisions of the Constitution of the United
States guaranteeing the liberty of the press, from which the provisions of the Philippine
Bill were adopted, have never been held to secure immunity to the person responsible
for the publication of libelous defamatory matter in a newspaper.”

[5]
 Libel, as defined by Article 353 of the Revised Penal Code as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead.

[6]
 During the interpellations of the cybercrime bill before the Senate, Senator Edgardo J.
Angara, the bill’s principal sponsor, pointed out that cyberspace is just a new avenue for
publicizing or communicating a libellous statement which is subject to prosecution and
punishment as defined by the Revised Penal Code. Senate Journal, December 12, 2011,
available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-
deliberations-on-the-cybercrime-prevention-bill/

[7]
 American Jurisprudence (Vol. 33, p. 292) explains that "Under the common-law
theory, which is embodied in some of the statutory provisions on the subject, the
criminality of a defamatory statement consist in the tendency thereof to provoke a
breach of the peace," but, it adds, "many of the modern enactments, ... ignore this
aspect altogether and make a libelous publication criminal if its tendency is to injure
the person defamed, regardless of its effect upon the public."

The present Philippine law on libel conforms to this modern tendency. For a little
digression on the present law of libel or defamation, let it be noted that the Revised
Penal Code has absorbed libel under Act No. 277 and calumny and insult under the old
Penal Code. (Commentaries on the Revised Penal Code, Guevarra, p. 764.) The new
Penal Code includes "All kinds of attacks against honor and reputation, thereby
eliminating once and for all the idle distinction between calumny, insult and
libel."(Idem, p. 765.) People v. del Rosario, 86 Phil. 163, 165 – 166 (1950).

[8]
 Worcester v. Ocampo, 22 Phil. 42, 73 – 74 (1912).

[9]
 During the senate’s deliberations on the cybercrime bill, Senator Sotto asked Senator
Angara if the bill also addresses internet libel or internet defamation. Senator Angara
answered that the bill includes it as a crime, an actionable offense, because one can be
defamed through Twitter or social media.

To the comment that one’s reputation can easily be ruined and damaged by posts and
comments in social network sites, Senator Angara stated that under the proposed law,
the offended party can sue the person responsible for posting such comments. Senate
Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-
record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/

[10]
 One of the most striking aspects of cyberspace is that it "provides an easy and
inexpensive way for a speaker to reach a large audience, potentially of millions." n1 This
characteristic sharply contrasts with traditional forms of mass communication, such as
television, radio, newspapers, and magazines, which require significant start-up and
operating costs and therefore tend to concentrate communications power in a limited
number of hands. Anyone with access to the Internet, however, can communicate and
interact with a vast and rapidly expanding cyberspace audience. n2 As the Supreme
Court opined in its recent landmark decision, Reno v. ACLU, n3 the Internet enables any
person with a phone line to "become a pamphleteer" or "a town crier with a voice that
resonates farther than it could from any soapbox." n4 Indeed, the Internet is "a unique
and wholly new medium of worldwide human communication" n5 that contains content
"as diverse as human thought." n6

The term "cyber-reach" can be used to describe cyberspace's ability to extend the reach
of an individual's voice. Cyber-reach makes the Internet unique, accounts for much of its
explosive growth and popularity, and perhaps holds the promise of a true and
meaningful "free trade in ideas" that Justice Holmes imagined eighty years ago. Bill
Mcswain, Developments in the Law - The Long Arm of Cyber-reach, 112 Harv. L. Rev.
1610 (1998).

[11]
 Alcantara v. Ponce, 545 Phil. 678, 683 (2007).

[12]
 US v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).

[13]
 People v. Casten, CA-G.R. No. 07924-CR, December 13, 1974.

[14]
 Fermin v. People of the Philippines, 573 Phil. 12 (2008).

[15]
 Article 355 of the Revised Penal Code

[16]
 People v. Santiago, G.R. No. L-17663, May 30, 1962, 5 SCRA 231, 233 – 234.

[17]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[18]
 Section 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.

[19]
 Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making it
is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

[20]
 508 Phil. 193 (2005).

[21]
 361 Phil. 3 (1999).

[22]
 376 US 254.

[23]
 209. The type of data that can be collected is of two types: traffic data and content
data. ‘Traffic data’ is defined in Article 1 d to mean any computer data relating to a
communication made by means of a computer system, which is generated by the
computer system and which formed a part in the chain of communication, indicating the
communication’s origin, destination, route, time, date, size and duration or the type of
service. ‘Content data’ is not defined in the Convention but refers to the communication
content of the communication; i.e., the meaning or purport of the communication, or
the message or information being conveyed by the communication (other than traffic
data).

210. In many States, a distinction is made between the real-time interception of content
data and real-time collection of traffic data in terms of both the legal prerequisites
required to authorize such investigative measure and the offences in respect of which
this measure can be employed. While recognizing that both types of data may have
associated privacy interests, many States consider that the privacy interests in respect
of content data are greater due to the nature of the communication content or
message. Greater limitations may be imposed with respect to the real-time collection of
content data than traffic data. To assist in recognizing this distinction for these States,
the Convention, while operationally acknowledging that the data is collected or
recorded in both situations, refers normatively in the titles of the articles to the
collection of traffic data as ‘real-time collection’ and the collection of content data as
‘real-time interception’.

xxx

215. The conditions and safeguards regarding the powers and procedures related to
real-time interception of content data and real-time collection of traffic data are subject
to Articles 14 and 15. As interception of content data is a very intrusive measure on
private life, stringent safeguards are required to ensure an appropriate balance
between the interests of justice and the fundamental rights of the individual. In the
area of interception, the present Convention itself does not set out specific safeguards
other than limiting authorisation of interception of content data to investigations into
serious criminal offences as defined in domestic law. Nevertheless, the following
important conditions and safeguards in this area, applied in domestic laws, are: judicial
or other independent supervision; specificity as to the communications or persons to be
intercepted; necessity, subsidiarity and proportionality (e.g. legal predicates justifying
the taking of the measure; other less intrusive measures not effective); limitation on the
duration of interception; right of redress. Many of these safeguards reflect the
European Convention on Human Rights and its subsequent case-law (see judgements in
Klass (5), Kruslin (6), Huvig (7), Malone (8), Halford (9), Lambert (10) cases). Some of
these safeguards are applicable also to the collection of traffic data in real-time.

Explanatory Report on the Budapest Convention on Cybercrime, [2001] COETSER 8

(November 23, 2001), available
at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm

[24]
 Morfe v. Mutuc, 130 Phil. 415, 436 (1968).

[25]
 Ople v. Torres, 354 Phil. 948, 970 (1998).

[26]
 See, for instance, the following cases where the Court upheld the governmental
action over the right to privacy: Kilusang Mayo Uno v. NEDA, 521 Phil. 732 (2006)
(regarding the validity of Executive Order No. 420, which established the unified multi-
purpose identification (ID) system for government); Standard Chartered Bank v. Senate
Committee on Banks, 565 Phil. 744 (2007) (regarding the Senate’s resolution compelling
petitioners who are officers of petitioner SCB-Philippines to attend and testify before
any further hearing to be conducted by the Senate); Gamboa v. Chan, G.R. No. 193636,
July 24, 2012, 677 SCRA 385, 395 – 399 (regarding the Regional Trial Court of Laoag’s
decision denying the petitioner’s petition for the privilege of the writ of habeas data).

[27]
 See, for instance, the following cases where the Court nullified governmental actions
and upheld the right to privacy: City of Manila v. Laguio Jr., 495 Phil. 289, 317 – 319
(2005) (regarding a city ordinance barring the operation of motels and inns, among
other establishments, within the Ermita-Malate area); Social Justice Society v.
Dangerous Drugs Board, 591 Phil. 393, 413 – 417 (2008) (regarding mandatory drug-
testing for of candidates for public office and persons charged with a crime having an
imposable penalty of imprisonment of not less than six (6) years and one (1) day before
the prosecutor’s office); White Light Corporation v. City of Manila, 596 Phil. 444, 464 –
467 (2009) (regarding a city ordinance prohibiting motels and inns from offering short-
time admission, as well as pro-rated or “wash up” rates).

[28]
 Ople v. Torres, 354 Phil. 948, 970 (1998).

[29]
 City of Manila v. Laguio Jr., 495 Phil. 289 (2005).

[30]
 White Light Corporation v. City of Manila, 596 Phil. 444 (2009).

[31]
 Internet definition, Merriam Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/internet

[32]
 As the technology exists now, data is usually sent through the Internet through a
packet-switching network. Under this system, data sent through the Internet is first
broken down into tiny packets of data which pass through different networks until it
reaches its destination, where it is reassembled into the data sent. These tiny packets of
data generally contain a header and a payload. The header keeps overhead information
about the packet, the service and other transmission-related information. This includes
the source and destination of the data, the sequence number of the packets, and the
type of service, among others. The payload, on the other hand, is the actual data carried
by the packet. Traffic data may be monitored, recorded and collected from the headers
of packets.

[33]
 Chapter 1, Article 1 (d) of the Cybercrime Convention; see also Section 3 (p) of
Republic Act No. 10175.

[34]
 Chapter 1, Article 1 (b) of the Cybercrime Convention

[35]
 What is a packet?, HowStuffWorks.com (Dec. 01,
2000) http://computer.howstuffworks.com/question525.htm See also: Structure of the
Internet: Packet switching, in A-level Computing/AQA, http://en.wikibooks.org/wiki/A-
level_Computing/AQA/Computer_Components,_The_Stored_Program_Concept_and_th
e_Internet/Structure_of_the_Internet/Packet_switching; and What is Packet
Switching?, Teach-ICT.com, http://www.teach-
ict.com/technology_explained/packet_switching/packet_switching.html.

[36]
 Edward J. Wegman and David J. Marchette, On Some Techniques for Streaming Data:

A Case Study of Internet Packet Headers,

p.7, http://www.dmarchette.com/Papers/VisPacketHeadersRev1.pdf.

[37]
 167. Often more than one service provider may be involved in the transmission of a
communication. Each service provider may possess some traffic data related to the
transmission of the specified communication, which either has been generated and
retained by that service provider in relation to the passage of the communication
through its system or has been provided from other service providers. Sometimes traffic
data, or at least some types of traffic data, are shared among the service providers
involved in the transmission of the communication for commercial, security, or technical
purposes. In such a case, any one of the service providers may possess the crucial traffic
data that is needed to determine the source or destination of the communication.
Often, however, no single service provider possesses enough of the crucial traffic data to
be able to determine the actual source or destination of the communication. Each
possesses one part of the puzzle, and each of these parts needs to be examined in order
to identify the source or destination. Explanatory Report on the Budapest Convention
on Cybercrime, [2001] COETSER 8 (Nov. 23, 2001), available
at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.

[38]
 A law enforcement agent’s unauthorized access to content data may constitute illegal
interception, which is penalized by Section 4, paragraph 2 of the Cybercrime Law:

(2) Illegal Interception. – The interception made by technical means without right of any
non-public transmission of computer data to, from, or within a computer system
including electromagnetic emissions from a computer system carrying such computer
data.

[39]
 442 U.S. 735 (1979).

[40]
 In Smith v. Maryland 442 U.S. 735 (1979), the petitioner had been charged with
robbery, and prior to his trial, moved that the evidence acquired by the police through
the installation of a pen register at a telephone company’s central offices. This allowed
the police to record the numbers dialed from the telephone at the petitioner’s home.
The US Supreme Court eventually held that this act did not violate the petitioner’s right
to privacy, as it does not constitute a search. The petitioner did not entertain an actual,
legitimate and reasonable expectation of privacy to the phone numbers he dialed.

[41]
 In the Philippines, data privacy is governed by Republic Act 10173 or The Data Privacy
Act of 2012. RA 10173 established the country’s data privacy framework. It recognizes
the individual’s rights to his personal information and sensitive information, and fines
the unlawful processing of these kinds of information and the violation of the rights of a
data subject.

[42]
 Section 16 of the Data Privacy Act provides:

Section 16. Rights of the Data Subject. – The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are
being or have been processed;

xxxx

(e) Suspend, withdraw or order the blocking, removal or destruction of his or her
personal information from the personal information controller’s filing system upon
discovery and substantial proof that the personal information are incomplete, outdated,
false, unlawfully obtained, used for unauthorized purposes or are no longer necessary
for the purposes for which they were collected. In this case, the personal information
controller may notify third parties who have previously received such processed
personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete,
outdated, false, unlawfully obtained or unauthorized use of personal information.

[43]
 Section 31 and 32 of the Data Privacy Act provide:

Section 31. Malicious Disclosure. – Any personal information controller or personal

information processor or any of its officials, employees or agents, who, with malice or in
bad faith, discloses unwarranted or false information relative to any personal
information or personal sensitive information obtained by him or her, shall be subject to
imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of
not less than Five hundred thousand pesos (Php500,000.00) but not more than One
million pesos (Php1,000,000.00).

Section 32. Unauthorized Disclosure. – (a) Any personal information controller or

personal information processor or any of its officials, employees or agents, who
discloses to a third party personal information not covered by the immediately
preceding section without the consent of the data subject, shall he subject to
imprisonment ranging from one (1) year to three (3) years and a fine of not less than
Five hundred thousand pesos (Php500,000.00) but not more than One million pesos
(Php1,000,000.00).

(b) Any personal information controller or personal information processor or any of its
officials, employees or agents, who discloses to a third party sensitive personal
information not covered by the immediately preceding section without the consent of
the data subject, shall be subject to imprisonment ranging from three (3) years to five
(5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but
not more than Two million pesos (Php2,000,000.00).

[44]
 Mindi McDowell, Staying Safe on Social Network Sites, US-CERT, (Feb. 6,
2013) http://www.us-cert.gov/ncas/tips/ST06-003; See Adam Tanner, Users more savvy
about social media privacy than thought, poll says, Forbes Magazine, (Nov. 11,
2013) http://www.forbes.com/sites/adamtanner/2013/11/13/users-more-savvy-about-
social-media-privacy-than-thought-poll-finds/.

[45]
 533 U.S. 27 (2001).

[46]
 533 U.S. 27, 37 (2001).

[47]
 Riccardo Bettatti, Traffic Analysis and its Capabilities, (Sept. 10,
2008) http://usacac.army.mil/cac2/cew/repository/papers/Modern_Traffic_Analysis_an
d_its_Capabilities.pdf; Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring
Users’ Online Activities Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf citing C.V. Wright, L. Ballard, F. Monrose, and G. M. Masson, Language identification
of encrypted VoIP traffic: Alejandra y roberto or alice and bob in Proceedings of USENIX
Security Symposium, 2007 and C.V. Wright, L. Ballard, S. E. Coull, F. Monrose, and G. M.
Masson, Spot me if you can: Uncovering spoken phrases in encrypted VoIP
conversations, In Proceedings of IEEE Symposium on Security and Privacy, 2008.

[48]
 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities
Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf.

[49]
 See: James Manyika, Michael Chui, Brad Brown, Jacques Bughin, Richard Dobbs,
Charles Roxburgh, Angela Hung Byers, Big data: The next frontier for innovation,
competition, and productivity, Mckinsey Global Institute, (May
2011) http://www.mckinsey.com/insights/business_technology/big_data_the_next_fro
ntier_for_innovation
[50]
 More objects are becoming embedded with sensors and gaining the ability to
communicate. The resulting information networks promise to create new business
models, improve business processes, and reduce costs and risks. Michael Chui, Markus
Loffler, and Roger Roberts, The Internet of Things, Mckinsey Global Institute, (March
2010) http://www.mckinsey.com/insights/high_tech_telecoms_internet/the_internet_o
f_things.

[51]
 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities
Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf citing T. Jiang, H.J. Wang, and Y. Hu. Preserving location privacy in wireless LANs In
Proceedings of MobiSys, pages 246–257, 2007 and J. Wilson and N. Patwari, See
through walls: Motion tracking using variance-based radio tomography networks, IEEE
Transactions on Mobile Computing, 2010.

[52]
 Department of Justice Primer on Cybercrime, available
at http://www.upm.edu.ph/downloads/announcement/DOJ%20Primer%20on
%20Cybercrime%20Law.pdf; see also “Quashing Cybercrime,” Senator Edgardo Angara’s
sponsorship speech on the Cybercrime Prevention Act (May 11,
2011) http://www.senate.gov.ph/press_release/2011/0511_angara3.asp

[53]
 Section 10 of the Cybercrime Law provides:

Section 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI)
and the Philippine National Police (PNP) shall be responsible for the efficient and
effective law enforcement of the provisions of this Act. The NBI and the PNP shall
organize a cybercrime unit or center manned by special investigators to exclusively
handle cases involving violations of this Act.

[54]
 See for instance, Fernandez v. Comelec, 579 Phil. 235, 240 (2008) and Villanueva v.
Adre, 254 Phil. 882, 887 (1989), where the Court declared a petition moot and
academic, but proceeded to rule on the issue of jurisdiction for the guidance of the
bench and the bar; or Altres v. Empleo, 594 Phil. 246, 261 – 262 (2008), where the Court
restated in capsule form the jurisprudential pronouncements on forum-shopping;
or Republic v. CA and Molina, 335 Phil. 664, 676 – 680 (1997), where the Court
formulated guidelines in the interpretation and application of Art. 36 of the Family
Code.

[55]
 Section 14 and 16 of the Cybercrime Law provides:

Section 14. Disclosure of Computer Data. — Law enforcement authorities, upon

securing a court warrant, shall issue an order requiring any person or service provider
to disclose or submit subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt of the order in relation
to a valid complaint officially docketed and assigned for investigation and the disclosure
is necessary and relevant for the purpose of investigation.

Section 16. Custody of Computer Data. — All computer data, including content and
traffic data, examined under a proper warrant shall, within forty-eight (48) hours after
the expiration of the period fixed therein, be deposited with the court in a sealed
package, and shall be accompanied by an affidavit of the law enforcement authority
executing it stating the dates and times covered by the examination, and the law
enforcement authority who may access the deposit, among other relevant data. The law
enforcement authority shall also certify that no duplicates or copies of the whole or any
part thereof have been made, or if made, that all such duplicates or copies are included
in the package deposited with the court. The package so deposited shall not be opened,
or the recordings replayed, or used in evidence, or then contents revealed, except upon
order of the court, which shall not be granted except upon motion, with due notice and
opportunity to be heard to the person or persons whose conversation or
communications have been recorded.

[56]
 Section 21 of the Cybercrime Law provides:

Section 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any
violation of the provisions of this Act. including any violation committed by a Filipino
national regardless of the place of commission. Jurisdiction shall lie if any of the
elements was committed within the Philippines or committed with the use of any
computer system wholly or partly situated in the country, or when by such commission
any damage is caused to a natural or juridical person who, at the time the offense was
committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges
to handle cybercrime cases.

[57]
 Article VIII, Section 5, paragraph 5 of the 1987 Constitution provides:

Section 5. The Supreme Court shall have the following powers:

xxx

5) Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

DISSENTING AND CONCURRING OPINION

LEONEN, J.:

Most of the challenges to the constitutionality of some provisions of the Cybercrime

Prevention Act of 2012 (Republic Act No. 10175) are raised without an actual case or
controversy. Thus, the consolidated petitions should fail except for those that raise
questions that involve the imminent possibility that the constitutional guarantees to
freedom of expression will be stifled because of the broadness of the scope of the text
of the provision. In view of the primacy of this fundamental right, judicial review of the
statute itself, even absent an actual case, is viable.

With this approach, I am of the opinion that the constitution requires that libel as
presently contained in the Revised Penal Code and as reenacted in the Cybercrime
Prevention Act of 2012 (Rep. Act No. 10175) be struck down as infringing upon the
guarantee of freedom of expression provided in Article III, Section 4 of our Constitution.
I am also of the firm view that the provisions on cybersex as well as the provisions
increasing the penalties of all crimes committed with the use of computers are
unconstitutional. The provision limiting unsolicited commercial communications should
survive facial review and should not be declared as unconstitutional.

I concur with the majority insofar as they declare that the “take down” clause, the
provision allowing dual prosecutions of all cybercrimes, and the provision that broadly
allows warrantless searches and seizures of traffic data, are unconstitutional. This is
mainly because these present unwarranted chilling effects on the guaranteed and
fundamental rights of expression.

Framework of this Opinion

Reality can become far richer and more complex than our collective ability to imagine
and predict. Thus, conscious and deliberate restraint — at times — may be the better
part of judicial wisdom.

The judiciary’s constitutionally mandated role is to interpret and apply the law. It is not
to create or amend law on the basis of speculative facts which have not yet happened
and which have not yet fully ripened into clear breaches of legally demandable rights or
obligations. Without facts that present an actual controversy, our inquiry will be roving
and unlimited. We substitute our ability to predict for the rigor required by issues
properly shaped in adversarial argument of the real. We become oracles rather than a
court of law.

This is especially so when the law is made to apply in an environment of rapidly evolving
technologies that have deep and far-reaching consequences on human expression,
interaction, and relationships. The internet creates communities which virtually cross
cultures, creating cosmopolitarian actors present in so many ways and in platforms that
we are yet starting to understand.

Petitioners came to this court via several petitions for certiorari and/or prohibition
under Rule 65 of the Rules of Court. They seek to declare certain provisions of Rep. Act
No. 10175 or the Cybercrime Prevention Act of 2012[1] as unconstitutional. They allege
grave abuse of discretion on the part of Congress. They invoke our power of judicial
review on the basis of the textual provisions of the statute in question, their reading of
provisions of the Constitution, and their speculation of facts that have not happened —
may or may not happen — in the context of one of the many technologies available and
evolving in cyberspace. They ask us to choose the most evil among the many possible
but still ambiguous future factual permutations and on that basis declare provisions not
yet implemented by the Executive or affecting rights in the concrete as unconstitutional.
In effect, they ask us to do what the Constitution has not even granted to the President:
a provision-by-provision veto in the guise of their interpretation of judicial review.

Although pleaded, it is difficult to assess whether there was grave abuse of discretion on
the part of the Executive. This court issued a temporary restraining order to even
proceed with the drafting of the implementing rules. There has been no execution of
any of the provisions of the law.

This is facial review in its most concrete form. We are asked to render a pre-
enforcement advisory opinion of a criminal statute. Generally, this cannot be done if we
are to be faithful to the design of our Constitution.

The only instance when a facial review is permissible is when there is a clear showing
that the provisions are too broad under any reasonable reading that it imminently
threatens expression. In these cases, there must be more of a showing than simply
the in terrorem effect of a criminal statute. It must clearly and convincingly show that
there can be no determinable standards that can guide interpretation. Freedom of
expression enjoys a primordial status in the scheme of our basic rights. It is fundamental
to the concept of the people as sovereign. Any law — regardless of stage of
implementation — that allows vague and unlimited latitude for law enforcers to do prior
restraints on speech must be struck down on its face.
This is the framework taken by this opinion.

The discussion in this dissenting and concurring opinion is presented in the following
order:

1. Justiciability

2. The Complexity of the Internet and the Context of the Law

3. The Doctrine of Overbreadth and the Internet

4. Take Down Clause

5. Libel Clauses

6. Cybersex Provisions

7. Speech Component in the Collection of Traffic Data

8. Commercial Speech

I (A)

Justiciability

Judicial review — the power to declare a law, ordinance, or treaty as unconstitutional or

invalid — is inherent in judicial power.[2] It includes the power to “settle actual
controversies involving rights which are legally demandable”[3] and “to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on any part of any branch or instrumentality of Government.”[4] The
second aspect of judicial review articulated in the 1987 Constitution nuances the
political question doctrine.[5] It is not licensed to do away with the requirements of
justiciability.

The general rule is still that: “the constitutionality of a statute will be passed on only if,
and to the extent that, it is directly and necessarily involved in a justiciable controversy
and is essential to the protection of the rights of the parties concerned.”[6] Justiciability
on the other hand requires that: (a) there must be an actual case or
controversy involving legal rights that are capable of judicial determination; (b) the
parties raising the issue must have standing or locus standi to raise the constitutional
issue; (c) the constitutionality must be raised at the earliest possible opportunity,
thus ripe for adjudication; and (d) the constitutionality must be the very lis mota of the
case, or the constitutionality must be essential to the disposition of the case.[7]
It is essential that there be an actual case or controversy.[8] “There must be existing
conflicts ripe for judicial determination — not conjectural or anticipatory. Otherwise,
the decision of the Court will amount to an advisory opinion.”[9]

In Information Technology Foundation of the Phils. v. COMELEC,[10] this court described

the standard within which to ascertain the existence of an actual case or controversy:

It is well-established in this jurisdiction that "x x x for a court to exercise its power of
adjudication, there must be an actual case or controversy -- one which involves a
conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging." The controversy must be justiciable -- definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other; that is, it must concern a real and not a
merely theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state
of facts.[11] (Citations omitted, emphasis supplied)

In Lozano v. Nograles,[12] this court also dismissed the petitions to nullify House

Resolution No. 1109 or “A Resolution Calling upon the Members of Congress to Convene
for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a
Three-fourths Vote of All the Members of Congress.” In dismissing the petitions, this
court held:

It is well settled that it is the duty of the judiciary to say what the law is. The
determination of the nature, scope and extent of the powers of government is the
exclusive province of the judiciary, such that any mediation on the part of the latter for
the allocation of constitutional boundaries would amount, not to its supremacy, but to
its mere fulfillment of its "solemn and sacred obligation" under the Constitution. This
Court’s power of review may be awesome, but it is limited to actual cases and
controversies dealing with parties having adversely legal claims, to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. The "case-or-controversy" requirement
bans this court from deciding "abstract, hypothetical or contingent questions," 5  lest
the court give opinions in the nature of advice concerning legislative or executive
action.”(Emphasis supplied)[13]

Then, citing the classic words in Angara v. Electoral Commission:[14]

Any attempt at abstraction could only lead to dialectics and barren legal questions and
to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government.
[15]
 (Citations omitted)

In Republic of the Philippines v. Herminio Harry Roque et al.,[16] this court ruled in favor
of the petitioner and dismissed the petitions for declaratory relief filed by respondents
before the Quezon City Regional Trial Court against certain provisions of the Human
Security Act. In that case, the court discussed the necessity of the requirement of an
actual case or controversy:

Pertinently, a justiciable controversy refers to an existing case or controversy that is

appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory. Corollary thereto, by "ripening seeds" it is meant, not that sufficient
accrued facts may be dispensed with, but that a dispute may be tried at its inception
before it has accumulated the asperity, distemper, animosity, passion, and violence of
a full blown battle that looms ahead. The concept describes a state of facts indicating
imminent and inevitable litigation provided that the issue is not settled and stabilized by
tranquilizing declaration.

A perusal of private respondents’ petition for declaratory relief would show that they
have failed to demonstrate how they are left to sustain or are in immediate danger to
sustain some direct injury as a result of the enforcement of the assailed provisions of
RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases,
private respondents only assert general interests as citizens, and taxpayers and
infractions which the government could prospectively commit if the enforcement of the
said law would remain untrammeled. As their petition would disclose, private
respondents’ fear of prosecution was solely based on remarks of certain government
officials which were addressed to the general public. They, however, failed to show how
these remarks tended towards any prosecutorial or governmental action geared
towards the implementation of RA 9372 against them. In other words, there was no
particular, real or imminent threat to any of them.”[17] (Emphasis supplied)

Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council:

[18]

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility
is not peculiar to RA 9372 since the exercise of any power granted by law may be
abused. Allegations of abuse must be anchored on real events before courts may step
in to settle actual controversies involving rights which are legally demandable and
enforceable. (Emphasis supplied; citations omitted)[19]

None of the petitioners in this case have been charged of any offense arising from the
law being challenged for having committed any act which they have committed or are
about to commit. No private party or any agency of government has invoked any of the
statutory provisions in question against any of the petitioners. The invocations of the
various constitutional provisions cited in petitions are in the abstract. Generally,
petitioners have ardently argued possible applications of statutory provisions to be
invoked for future but theoretical state of facts.

The blanket prayer of assailing the validity of the provisions cannot be allowed without
the proper factual bases emanating from an actual case or controversy.

II

The Complexity of the Internet and the Context of the Law

This is especially so when the milieu is cyberspace.

The internet or cyberspace is a complex phenomenon. It has pervasive effects and are,
by now, ubiquitous in many communities. Its possibilities for reordering human
relationships are limited only by the state of its constantly evolving technologies and the
designs of various user interfaces. The internet contains exciting potentials as well as
pernicious dangers.

The essential framework for governance of the parts of cyberspace that have reasonable
connections with our territory and our people should find definite references in our
Constitution. However, effective governance of cyberspace requires cooperation and
harmonization with other approaches in other jurisdictions. Certainly, its scope and
continuous evolution require that we calibrate our constitutional doctrines carefully: in
concrete steps and with full and deeper understanding of incidents that involve various
parts of this phenomenon. The internet is neither just one relationship nor is it a single
technology. It is an interrelationship of many technologies and cultures.

An overview may be necessary if only to show that judicial pre-enforcement review —

or a facial evaluation of only the statute in question — may be inadvisable. Cases that
involve cyberspace are the paradigmatic examples where courts should do an
evaluation of enshrined constitutional rights only in the context of real and actual
controversies.

II (A)

A “Network of Networks”[20]

The very concept of an “internet” envisions pervasiveness. The first recorded

description of the interactions that would come to typify the internet was contained in a
series of memos in August 1962 by J.C.R. Licklider. In these memos, the pioneering head
of the computer research program at the United States Department of Defense’s
Advanced Research Projects Agency (ARPA) discussed his concept of a “Galactic
Network.”[21]

The term “internet” is an abbreviation for “inter-networking.”[22] It refers to a

“combination of networks that communicate between themselves.”[23] A “network”
pertains to the interconnection of several distinct components. To speak of an
“internet” is, therefore, to speak of the interconnection of interconnections. Thus,
“[t]he Internet today is a widespread information infrastructure.”[24] It is “at once a
world-wide broadcasting capability, a mechanism for information dissemination, and a
medium for collaboration and interaction between individuals and their computers
without regard for geographic location.”[25]

The internet grew from ARPA’s ARPANet. It took off from the revolutionary concept of
packet-switching as opposed to circuit switching. Packet switching eliminated the need
for connecting at the circuit level where individual bits of data are passed synchronously
along an end-to-end circuit between two end locations. Instead, packet switching
allowed for the partitioning of data into packets, which are then transmitted individually
and independently, even through varying and disjointed paths. The packets are then
reassembled in their destination.[26] At any given microsecond, without our jurisdiction,
complete content may be sent from any computer connected by wire or wirelessly to
the internet. At the same time, there can be small parts or packets of information
passing through other computers destined to be reassembled in a requesting computer
somewhere in this planet.

Packet switching requires that “open architecture networking” be the underlying

technical foundation of the internet. Separately designed and developed networks are
connected to each other. Each of these participating networks may have its own unique
interfaces that it offers to its users. Every user in each of these separate but
participating networks, however, remains connected to each other.[27]

This open-architecture network environment in turn requires a communications

protocol that allows a uniform way of joining different networks.[28] Developed in 1973,
this protocol eventually came to be known as the Transmission Control
Protocol/Internet Protocol (TCP/IP).[29] “The Internet Protocol (IP) sets how data is
broken down into chunks for transmission, as well as how the source and destination
addresses are specified.”[30]

To identify connected devices, each device on the internet is assigned a unique address
in the form of a “dotted quad,” otherwise known as the IP address (100.962.28.27).
These IP addresses are used to route data packets to their respective destinations.
[31]
 There are a finite number of IP addresses available. With the growth of the internet
beyond all expectations, the expansion of available IP addresses became imperative.
There is now an ongoing effort to shift from IP version 4 (IPv4) to IP version 6 (Ipv6).
From a communication protocol that allows for roughly 4.3 billion unique addresses, the
new version will allow for 2128 unique addresses. Written in ordinary decimal form, this
number is 39 digits long.[32]

TCP/IP addressed the need for connected devices to have a unique identification and
designation. But, to make these addresses accessible and readable to its human users,
“domain names” were introduced. Internet addresses are now also written as “domain
names” under what is known as the Domain Name System (DNS).”[33] The internet
address of this court is thus: sc.judiciary.gov.ph.

The allocation of unique identifiers for the internet, such as IP addresses and domain
names, is administered not by a public[34] entity but by a nonprofit public benefit
corporation based in the United States of America: the Internet Corporation for
Assigned Names and Numbers (ICANN). ICANN allocates IP addresses and “administers
the DNS through delegated authority to domain name registries.”[35] These registries
consist of databases of all domain names registered in generic top level domains (gTLD),
such as .com, .org, .gov, and country code top level domains (ccTLD), such as .ph and .sg.
[36]

II (B)

Openness and the World Wide Web

In 1989, Tim Berners-Lee of the European Organization for Nuclear Research (CERN)
developed the World Wide Web (WWW). The World Wide Web “allowed documents,
or pages, to link to other documents stored across a network.”[37] Together with
electronic mail (email), the World Wide Web has been the “driving force” of the
internet.[38] The World Wide Web provided the impetus for others to develop software
called “browsers,” which allowed the user to navigate access to content as well as to
exchange information through “web pages.” Information can be carried through
different media. Thus, text can be combined with pictures, audio, and video. These
media can likewise be “hyperlinked” or marked so that it could provide easy access to
other pages containing related information.

This new form of interface hastened the internet’s environment of openness.[39] It is this
openness and the innovation it continuously engendered that enabled the internet to
eclipse networks built around appliances connected or tethered to specific proprietary
infrastructure such as America Online and CompuServe.[40] It is this openness that
enabled the internet to become the present-day “widespread information
infrastructure”[41] or universal “network of networks.”[42]

Today, the use of the internet and its prevalence are not only inevitable facts, these are
also escalating phenomena. By the end of 2011, it was estimated that some 2.3 billion
individuals, or more than one-third of the world’s population, had access to the
internet.[43] The use of the internet is inevitably bound to increase as wireless or mobile
broadband services become more affordable and available. By 2015, the estimates are
that the extent of global internet users will rise to nearly two-thirds of the world’s
population.[44]

II (C)

The Inevitability of Use and Increasing Dependency on the Internet

Contemporary developments also challenge the nature of internet use. No longer are
we confined to a desktop computer to access information on the internet. There are
more mobile and wireless broadband subscriptions. As of 2011, the number of
networked devices[45] has exceeded the global population. By 2020, this disparity of
connected devices as opposed to connected individuals is expected to escalate to a ratio
of six to one.[46] Today, individuals may have all or a combination of a desktop, a mobile
laptop, a tablet, several smart mobile phones, a smart television, and a version of an
Xbox or a PlayStation or gaming devices that may connect to the internet. It is now
common to find homes with Wi-Fi routers having broadband connection to the internet.

This reality has increased the density of communication among individuals. A July 2011
study reported that every day, 294 billion electronic mails (emails) and 5 billion phone
messages are exchanged worldwide.[47] Another survey yielded the following:[48]

Global Philippine
s

Percentage of respondents who said they 89% 78%

access the Internet many or several times
a day

Percentage of respondents who used e- 87% 79%

mail at least once a day
Percentage of respondents who used 60% 72%
social media at least once a day

Percentage of respondents who used 43% 51%

instant messaging at least once a day

The accelerating rate of increase of internet users is relevant to developing countries

like the Philippines. Reports reveal that, as of 2011, “[i]nternet user growth was higher
in developing (16 per cent) than developed (5 per cent) countries.”[49] Thus, “[i]nternet
user penetration rates in developing countries have tripled over the past five years, and
the developing countries’ share of the world’s total number of Internet users has
increased, from 44 per cent in 2006 to 62 per cent in 2011.”[50] Consistent with this
accelerating trend, the internet-user penetration rate for developing countries stood at
24% at the end of 2011; the estimates are that this will double by 2015.[51] There are
more citizens in developing countries using the internet. The share, in internet traffic, by
developing countries, has also increased as compared with developed countries.

The attitude of users shows a marked trend towards dependence. A survey showed that
the internet is viewed by its users as playing a positive role; not only for individual lives
but also for society at large. Moreover, the internet has come to be perceived as
somewhat of an imperative. Of its many findings, the following data from the 2012
Global Internet Survey are particularly notable:[52]

Percentage
Percentage of
of respondents
respondent who agreed
s who or agreed
  agreed or  
strongly
agreed
strongly

(GLOBAL) (PHILIPPINES
)

The Internet does more to help 83% 91%

 
society than it does to hurt it

Their lives have improved due to 85% 93%

 
using the Internet

The Internet is essential to their 89% 96%

 
knowledge and education
The Internet can play a significant
 
role in:

1. Increasing global trade and 81% 95%

  economic relationships among  
countries

2. Achieving universal primary 76% 91%

   
school education

  3. Promoting gender equality 70% 89%  

  4. Protecting the environment 74% 92%  

5. Helping to combat serious 72% 92%

   
diseases

6. Eliminating extreme poverty and 61% 75%

   
hunger

  7. Improving maternal health 65% 84%  

  8. Reducing child mortality 63% 80%  

9. Improving emergency response 77% 92%

  and assistance during natural  
disasters

10. Preventing the trafficking of 69% 84%

   
women and children

11. Improving the quality of 80% 95%

   
education

12. Improving social problems by

increasing communication
   
between and among various
groups in society 76% 93%

13. Reducing rural and remote 80% 96%

   
community isolation

14. Keeping local experts in or

bringing experts back to their
   
country because they can use
technology to create business 75% 94%

Of more pronounced legal significance are the following findings:[53]

  Percentage Percentage  
 of of
respondent respondents
s who who agreed
agreed or or agreed
agreed strongly
strongly

   
   

(PHILIPPINES
(GLOBAL) )

The Internet should be

considered a basic human 83% 88%  
right

Their respective governments

have an obligation to ensure
that they have the  
80% 85%
opportunity to access the
Internet

Freedom of expression should

86% 86%  
be guaranteed on the Internet

Services such as social media

enhance their right to
 
peaceful assembly and 80% 91%
association

The relationship of internet use and growth in the economy has likewise been
established. The significance of the internet is as real as it is perceived, thus:
Research by the World Bank suggests that a 10% increase in broadband penetration
could boost GDP by 1.38% in low- and middle-income countries.”[54] More specifically, it
cited that, in the Philippines, “[m]obile broadband adoption was found to contribute an
annual 0.32% of GDP, [representing] 6.9% of all GDP growth for the economy during the
past decade.[55]

II (D)

The Dangers in the Internet

While the internet has engendered innovation and growth, it has also engendered new
types of disruption. A noted expert employs an “evolutionary metaphor” as he asserts:

[Generative technologies] encourage mutations, branchings away from the status quo—
some that are curious dead ends, others that spread like wild?re. They invite disruption
—along with the good things and bad things that can come with such disruption.[56]

Addressing the implications of disruption, he adds:

Disruption bene?ts some while others lose, and the power of the generative Internet,
available to anyone with a modicum of knowledge and a broadband connection, can be
turned to network-destroying ends. x x x [T]he Internet’s very generativity — combined
with that of the PCs attached — sows the seeds for a “digital Pearl Harbor.”[57]

The internet is an infrastructure that allows for a “network of networks.”[58] It is also a

means for several purposes. As with all other “means enhancing capabilities of human
interaction,”[59] it can be used to facilitate benefits as well as nefarious ends. The
internet can be a means for criminal activity.

Parallel to the unprecedented escalation of the use of the internet and its various
technologies is also an escalation in what has been termed as cybercrimes. As noted in
the 2010 Salvador Declaration on Comprehensive Strategies for Global Challenges,
annexed to United Nations General Assembly resolution 65/230:

[The] development of information and communications technologies and the increasing

use of the Internet create new opportunities for offenders and facilitate the growth of
crime.[60]

Also as observed elsewhere:

Over the past few years, the global cyber crime landscape has changed dramatically,
with criminals employing more sophisticated technology and greater knowledge of
cyber security. Until recently, malware, spam emails, hacking into corporate sites and
other attacks of this nature were mostly the work of computer ‘geniuses’ showcasing
their talent. These attacks, which were rarely malicious, have gradually evolved into
cyber crime syndicates siphoning off money through illegal cyber channels. By 2010,
however, politically motivated cyber crime had penetrated global cyberspace. In fact,
weaponry and command and control systems have also transitioned into the cyberspace
to deploy and execute espionage and sabotage, as seen in the example of digital
espionage attacks on computer networks at Lockheed Martin and NASA.[61]

Computer-related criminal activity is not peculiar to the 21st century.[62] One of the first
reported “major” instances of cybercrime was in 2000 when the mass-mailed “I Love
You” Worm (which originated from Pandacan, Manila)[63] “affected nearly 45 million
computer users worldwide.”[64] This entailed as much as US$ 15 billion to repair the
damage. Cyber attacks have morphed into myriad forms. The following is just a
summary of some of the known attacks:[65]

Type of
Details
Attack

Viruses Viruses and worms are computer programs that affect the storage devices of
and a computer or network, which then replicate information without the
worms knowledge of the user.

Spam Spam emails are unsolicited emails or junk newsgroup postings. Spam emails
emails are sent without the consent of the receiver — potentially creating a wide
range of problems if they are not filtered appropriately.

Trojan A Trojan is a program that appears legitimate. However, once run, it moves
on to locate password information or makes the system more vulnerable to
future entry. Or a Trojan may simply destroy programs or data on the hard
disk.

Denial-of- DoS occurs when criminals attempt to bring down or cripple individual
service websites, computers or networks, often by flooding them with messages.
(DoS)

Malware Malware is a software that takes control of any individual’s computer to

spread a bug to other people’s devices or social networking profiles. Such
software can also be used to create a ‘botnet’ — a network of computers
controlled remotely by hackers, known as ‘herders,’ — to spread spam or
viruses.

Scarewar Using fear tactics, some cyber criminals compel users to download certain
e software. While such software is usually presented as antivirus software,
after some time, these programs start attacking the user’s system. The user
then has to pay the criminals to remove such viruses.

Phishing Phishing attacks are designed to steal a person’s login and password. For
instance, the phisher can access the victims’ bank accounts or assume
control of their social network.

Fiscal By targeting official online payment channels, cyber attackers can hamper
fraud processes such as tax collection or make fraudulent claims for benefits.

State Experts believe that some government agencies may also be using cyber
cyber attacks as a new means of warfare. One such attack occurred in 2010, when a
attacks computer virus called Stuxnet was used to carry out an invisible attack on
Iran’s secret nuclear program. The virus was aimed at disabling Iran’s
uranium enrichment centrifuges.

Carders Stealing bank or credit card details is another major cyber crime. Duplicate
 cards are then used to withdraw cash at ATMs or in shops.

The shift from wired to mobile devices has also brought with it the escalation of attacks
on mobile devices. As reported by IT security group McAfee, “[t]he number of pieces of
new mobile malware in 2010 increased by 46 percent compared with 2009.”[66] Hackers
have also increased targeting mobile devices using Apple’s iOS and Google’s Android
systems as these increased their market share. As McAfee put it, “cybercriminals are
keeping tabs on what’s popular.”[67]

Cybercrimes come at tremendous costs. A report notes that “[i]n the US over the course
of one year in 2009, the amount of information lost to cyber crime nearly doubled, from
US$265 million in 2008 to US$560 million x x x.”[68] In the United Kingdom, the annual
cost arising from cybercrime was estimated at GBP27 billion (US$ 43 billion). Of this
amount, intellectual property theft accounts for GBP9.2 billion (US$ 14 billion), while
espionage activities account for more than GBP7 billion (US$ 11 billion).[69] In Germany, a
joint report by the information technology trade group Bitkom and the German Federal
Criminal Police Office estimates phishing to have increased 70 percent year on year in
2010, resulting in a loss of as much as EUR 17 million (US$ 22 million).[70]

The costs in the Philippines are certainly present, but the revelation of its magnitude
awaits research that may come as a result of the implementation of the Cybercrime
Prevention Act of 2012.

Another report summarizes the costs to government as follows:[71]

1.  Costs in anticipation of cyber crime

-  Security measures, such as antiviral software installation, cost of insurance and IT

security standards maintenance.

2.  Costs as a consequence of cyber crime

-  Monetary losses to organizations, such as gaps in business continuity and losses due
to IP theft.

3.  Costs in response to cyber crime

-  Paying regulatory fines and compensations to victims of identity theft, and cost
associated with investigation of the crime.

4.  Indirect costs associated with cyber crime

-  Costs resulting from reputational damage to organizations and loss of confidence in

cyber transactions.
 II (E)

The Challenges for

“Internet Governance”

All these have triggered spirited discussion on what has been termed as “internet
governance” or “internet/cyberspace regulation.”

Particularly challenging are the “jurisdictional challenges that ‘virtual’ computer

networks posed to territorially constituted nation states x x x.”[72]John Perry Barlow, for
example, proclaimed in his Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from
Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to
leave us alone. You are not welcome among us. You have no sovereignty where we
gather.[73]

Many have considered the internet as “ungovernable,”[74] having the ability to

“undermine traditional forms of governance,”[75] and “radically subvert[ing] a system of
rule-making based on borders between physical spaces, at least with respect to the
claim that cyberspace should naturally be governed by territorially defined rules.”[76]

Adding to the complexity of internet regulation is the private character of the internet
as manifested in: (1) the ownership and operation of internet infrastructure; and (2) the
organizational framework of the internet. This private character, in turn, gives rise to
pressing questions on legitimacy and accountability.

The United Nations Office on Drugs and Crime (UNODC) describes the private ownership
and operation of internet infrastructure as follows:

A significant proportion of internet infrastructure is owned and operated by the private

sector. Internet access requires a “passive” infrastructure layer of trenches, ducts,
optical fibre, mobile base stations, and satellite hardware. It also requires an ‘active’
infrastructure layer of electronic equipment, and a ‘service’ layer of content services
and applications.

xxxx

As an infrastructure, the internet’s growth can be compared to the development of

roads, railways, and electricity, which are dependent on private sector investment,
construction and maintenance, but regulated and incentivized by national governments.
At the same time, the internet is often regarded as more private-sector led.[77]

As to the organizational framework of the internet, a professor writes:

As far as the organizational framework of the Internet is concerned, the present
“system” is mainly designed by private bodies and organizations, i.e. a self-regulatory
system applies in reality. Thereby, the key player is the Internet Corporation for
Assigned Names and Numbers (ICANN), being in place since November 1998.[78]

There are private bodies and organizations that exist for the purpose of regulation.
There are commercial entities – vendors and service providers – that emerge as de
facto regulators. A noted expert observes that an increasing response has been the
creation of devices and services which rely on a continuing relationship with vendors
and service providers who are then accountable for ensuring security and privacy.
[79]
 There is now a marked tendency to resort to “sterile appliances tethered to a
network of control.”[80] This may stunt the very “capacity to produce unanticipated
change through unfiltered contributions from broad and varied audiences.”[81] It is these
unanticipated changes which facilitated the internet’s rise to ubiquity.

The fear is that too much reliance on commercial vendors and their standards and
technologies transfers control over the all important internet from innovation from
varied sources. In a way, it stunts democratic creativity of an important media.

On the other end, states have consciously started more legal intervention. As observed
by the United Nations Office on Drugs and Crime:

Legal measures play a key role in the prevention and combating of cybercrime. Law is [a]
dynamic tool that enables the state to respond to new societal and security challenges,
such as the appropriate balance between privacy and crime control, or the extent of
liability of corporations that provide services. In addition to national laws, at the
international level, the law of nations – international law – covers relations between
states in all their myriad forms. Provisions in both national laws and international law
are relevant to cybercrime.[82]

At the normative level, legal measures address, if not negate, apprehensions of

legitimacy, consent, and accountability. Functionally, legal measures are vital in:

1. Setting clear standards of behavior for the use of computer devices;

2. Deterring perpetrators and protecting citizens;

3. Enabling law enforcement investigations while protecting individual privacy;

4. Providing fair and effective criminal justice procedures;

5. Requiring minimum protection standards in areas such as data handling and

retention; and

6. Enabling cooperation between countries in criminal matters involving cybercrime

and electronic evidence.[83]
In performing these functions, legal measures must adapt to emerging exigencies. This
includes the emergence of a virtual, rather than physical, field of governance. It also
includes specific approaches for specific acts and specific technologies. Effective internet
governance through law cannot be approached too generally or in the abstract:
The technological developments associated with cybercrime mean that – while
traditional laws can be applied to some extent – legislation must also grapple with new
concepts and objects, not traditionally addressed by law. In many states, laws on
technical developments date back to the 19th century. These laws were, and to a great
extent, still are, focused on physical objects – around which the daily life of industrial
society revolved. For this reason, many traditional general laws do not take into account
the particularities of information and information technology that are associated with
cybercrime and crimes generating electronic evidence. These acts are largely
characterized by new intangible objects, such as data or information.

xxxx

This raises the question of whether cybercrime should be covered by general, existing
criminal law provisions, or whether new, computer-specific offences are required. The
question cannot be answered generally, but rather depends upon the nature of
individual acts, and the scope and interpretation of national laws.[84] (Emphasis
provided)

II (F)

The Lack of a Universal

Policy Consensus: Political
Nature of the Content of
Cybercrime Legislation

The description of the acts in cyberspace which relates to “new concepts and objects,
not traditionally addressed by law”[85] challenges the very concept of crimes. This is of
preeminent significance as there can be no crime where there is no law punishing an act
(nullum crimen, nulla poena sine lege).[86]

The Comprehensive Study on Cybercrime prepared by UNODC for the

Intergovernmental Expert Group on Cybercrime, February 2013, reports that a survey of
almost 200 pieces of national legislation fails to establish a clear definition of
cybercrime. If at all, domestic laws tend to evade having to use the term “cybercrime”
altogether:

Out of almost 200 items of national legislation cited by countries in response to the
Study questionnaire, fewer than five per cent used the word “cybercrime” in the title or
scope of legislative provisions. Rather, legislation more commonly referred
to “computer crimes,” “electronic communications,” “information technologies,” or
“high-tech crime.” In practice, many of these pieces of legislation created criminal
offences that are included in the concept of cybercrime, such as unauthorized access to
a computer system, or interference with a computer system or data. Where national
legislation did specifically use cybercrime in the title of an act or section (such as
“Cybercrime Act”), the definitional section of the legislation rarely included a definition
for the word “cybercrime.” When the term “cybercrime” was included as a legal
definition, a common approach was to define it simply as “the crimes referred to in this
law.”[87]

International or regional legal instruments are also important for states because they
articulate a consensus, established or emerging, among several jurisdictions. With
respect to international or legal instruments however, the United Nations Office on
Drugs and Crime notes the same lack of a conceptual consensus as to what makes
cybercrimes:

In a similar manner, very few international or regional legal instruments define

cybercrime. Neither the Council of Europe Cybercrime Convention, the League of Arab
States Convention, nor the Draft African Union Convention, for example, contains a
definition of cybercrime for the purposes of the instrument. The Commonwealth of
Independent States Agreement, without using the term “cybercrime,” defines an
“offence relating to computer information” as a “criminal act of which the target is
computer information.” Similarly, the Shanghai Cooperation Organization Agreement
defines “information offences” as “the use of information resources and (or) the impact
on them in the informational sphere for illegal purposes.” [88]

More than defining the term “cybercrime,” international legal instruments list acts
which may be considered as falling under the broad umbrella of cybercrimes. As
surveyed in 'The Comprehensive Study on Cybercrime prepared by UNODC for the
Intergovernmental Expert Group on Cybercrime, February 2013,' there are sixteen (16)
international or regional instruments which exist with the objective of countering
cybercrime. The UNODC notes that nine (9) of these instruments are binding,[89] while
seven (7) are non-binding.[90] In all, these instruments include a total of eighty-two (82)
countries which have signed and/or ratified them. Of these, it is the Council of Europe
Cybercrime Convention which has the widest coverage: Forty-eight (48) countries,
[91]
 including five (5) non-member states of the Council of Europe, have ratified and/or
acceded to it. Other instruments have significantly smaller scopes. For example, the
League of Arab States Convention only included eighteen (18) countries or territories;
the Commonwealth of Independent States Agreement, with ten (10) countries; and the
Shanghai Cooperation Organization Agreement, with six (6) countries.[92]

Surveying these sixteen (16) instruments, the United Nations Office on Drugs and Crime
summarizes acts of cybercrimes vis-a-vis the instruments (and specific provisions of such
instruments) covering each act as follows:
Criminalized Act

  African Union[93]

  COMESA[94]

  The Commonwealth[95]

  Commonwealth of Independent States[96]

Council of Europe
 
(Budapest Convention)[97]

Council of Europe
 
(Lanzarote Convention)[98]

  ECOWAS[99]

European Union
 
(Framework Decision 2005/222/JHA)[100]

European Union
 
(Directive Proposal 2010/0273)[101]

European Union      

 
(Directive Framewrok Decision 2001/413/JHA)[102]

European Union 
 
(Directive 2011/92/EU and 2002/58/EC)[103]

ITU / CARICOM / CTU   

 
(Model Legislative Texts[104]

League of Arab States

 
(Convention)[105]

League of Arab States

 
(Model Law)[106]

  Shanghai Cooperation Organization[107]

United Nations
 
(CRC OP)[108]

1 Illegal access Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
to a 18 5 2 2 2(1 3 4 6 3,
computer and and and ) and 5,
     
system 19 7 3 5 15
III and
 (15) 22

   

III
(16)

2 Illegal access, Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
interception III 19 5 3 2 6 6 6 6, 7 3
or acquisition (23) and and (1) and and and and
of computer 21 8 (a) 3 8 18 8
data

3 Illegal Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
intereference III 20 6 3 4 5 4 5 3 7 8 6
with (19) and (1) and
computer , 22(a (c) 7
data (20) )
and
(24)

4 Illegal Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
intereference III 22 7 3 5 4 3 4 3 9 6 7
with a (18) (a) (1)
computer and (c)
system (19)

5 Computer Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
misuse tools III 22 9 3 6 12 5 7 4 10 9
(22) (b) (1)
and (b)
(c)

6 Breach of Art. Art. Art. Art.

privacy or III 3 11 15
data (27) (a)
protection and (1)
measures (54)

7 Computer- Art. Art. Art. Art. Art. Art. Art. Art.

related III 23 7 8 2 11 10 4
forgery (24) and and
and 4 18
(25)

8 Computer- Art. Art. Art. Art. Art. Art. Art. Art.

 related fraud III 24 8 9, 2 12 11 10,
(25) (a) 10 and 11
, and and 4 and
(26) (b) 23 12
and
(41)

9 Electronic Art. Art. Art.

payment 2 18 11
tools offenses

10 Identity- Art.
related crime 14

11 Computer- Art. Art. Art. Art.

related 3 10 17 14
copyright and (1)
trademark (d)
offenses

12 Spam Art. Art. Art.

19 13 15
(g) (3)

13 Computer- Art. Art. Art. Art.

related III 25 18 9
harassment, (40)
extortion or and
acts causing (41)
personal
harm

14 Computer- Art. Art. Art.

related acts III 3, 18,
involving (34) 4, 5 19
racism or , (OP and
xenophobia (35) ) 20
and
(36)

15 Computer- Art. Art. Art.

related denial III 6 21
or (37) (OP
justification )
of genocide
or crimes
 against
humanity

16 Computer- Art. Art. Art. Art. Art, Art. Art. Art. Art.
related III 10 9 20 14, 5 13 12 3
production, (29) 15,
distribution, , 16
or possession (30) and
of child , 17
pornography (31)
and
(32)

17 Computer- Art. Art.

related 23 6
solicitation or
‘grooming’ of
children

18 Computer- Art. Art. Art. Art.

related acts III 18, 15 21
in support of (40) 19,
terrorism 20
and
22
(a)

19 Computer- Art. Art.

related 15 19
offenses
involving
money
laundering

20 Computer- Art. Art.

related 16 17
offenses and
involving 18
illicit
trafficking

21 Computer- Art. Art. Art.

related 14, 12, 13,
offenses 15, 13, 16
against public 16 14 and
order, and and
 morality or 17 15 20
security

22 Law Art. Art. Art. Art. Art.

enforcement III 13 16 16 23
investigation- (54) and (3), and (3),
related 21 20 17 28
offenses (3) (3)
and and
21 29
(3) (3)

23 Aggravating Art. Art. Art.

circumstance III 22 21
s for (40)
conventional
crime
committed by
means of a
computer
system

24 Attempt and Art. Art. Art. Art.

aiding or 26 11 24 8
abetting and
7
(OP
)

25 Corporate Art Art. Art.

liability 27 12 26

Informed by the various approaches and challenges to defining cybercrime, 'The

Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental
Expert Group on Cybercrime, February 2013' suggests that “cybercrime” is “best
considered as a collection of acts or conduct.”[109] Thus, in a manner consistent with the
approach adopted by international instruments such as the United Nations Convention
Against Corruption,[110] it “identifies a list, or ‘basket’, of acts which could constitute
cybercrime.”[111] The list, however, is tentative and not exhaustive, provided “with a view
to establishing a basis for analysis,”[112] rather than to “represent legal
definitions.”[113] These acts are “organized in three broad categories”,[114] as follows:

1. Acts against the confidentiality, integrity and availability of computer data or

systems
 a. Illegal access to a computer system

b. Illegal access, interception or acquisition of computer data

c. Illegal interference with a computer system or computer data

d. Production, distribution or possession of computer misuse tools

e. Breach of privacy or data protection measures

2. Computer-related acts for personal or financial gain or harm

a. Computer-related fraud or forgery

b. Computer-related identity offences

c. Computer-related copyright or trademark offences

d. Sending or controlling sending of Spam

e. Computer-related acts causing personal harm

f. Computer-related solicitation or 'grooming' of children

3. Computer content-related acts

a. Computer-related acts involving hate speech

b. Computer-related production, distribution or possession of child

pornography

c. Computer-related acts in support of terrorism offences[115]

Apart from the conceptual and definitional mooring of cybercrimes, equally significant
are the “procedural powers including search, seizure, orders for computer data, real-
time collection of computer data, and preservation of data x x x.”[116] As noted by the
United Nations Office on Drugs and Crime, these procedural powers, along with the
criminalization of certain acts and obligations for international cooperation, form the
“core provisions” shared by international and legal instruments.[117]

The United Nations Office on Drugs and Crime’s survey of key international and regional
instruments summarizes each instrument’s provision of procedural powers as follows:
Procedural Power

  African Union[118]

  COMESA[119]

  The Commonwealth[120]

  Commonwealth of Independent States[121]

  Council of Europe

  (Budapest Convention)[122]

  Council of Europe

  (Lanzarote Convention)[123]

  ECOWAS[124]

European Union
 
(Framework Decision 2005/222/JHA)[125]

European Union
 
(Directive Proposal 2010/0273)[126]

European Union
 
(Directive Framewrok Decision 2001/413/JHA)[127]

European Union
 
(Directive 2011/92/EU and 2002/58/EC)[128]

ITU / CARICOM / CTU

 
(Model Legislative Texts[129]

League of Arab States

 
(Convention)[130]

League of Arab States

 
(Model Law)[131]

  Shanghai Cooperation Organization[132]

United Nations
 
(CRC OP)[133]

1 Search for Art. Art. Art.   Art.   Art.         Art. Art.      

computer III 37 12 19 33 20 26
hardware or (50 (a) (1)
data ) and and
 (b) (2)

2 Seizure of Art. Art. Art.   Art.   Art.         Art. Art.      

computer III 37 12 19 33 20 27
hardware or (51 (c) and (3) (1)
data ) 14

3 Order for   Art. Art.   Art.             Art. Art.      

stored 36 15 18 22 25
computer (a) (1) (a) (1)
date (1)

4 Order for   Art.     Art.             Art. Art.      

subscriber 36 18 22 25
information (b) (1) (b) (2)
(b)

5 Order for   Art. Art.   Art.             Art. Art.      

stored 34 16 17 24 24
traffic data (a) (1)
(ii) (b)

6 Real-time   Art. Art.   At.             Art. Art.      

collection of 38 19 20 25 28
traffic data

7 Real-time Art. Art. Art.   Art.             Art. Art.      

collection of III 39 18 21 26 29
content- (55
data )

8 Expedited Art. Art. Art.   Art.   Art.         Art. Art.      

preservatio III 33, 17 16, 33 23 23
n of (53 34 17 (2)
computer- ) (a) (1)
data (i) (a)
and
35

9 Use of           Art.         Art. Art.        

(remote) 30 15 27
forensic (5)
tools

10 Trans-   Art.     Art.               Art.      

border 49 32 40
access to (b) (b) (2)
 computer
data

11 Provision of   Art. Art.   Art.             Art. Art.      

assistance 37 13 19 21 27
(d) (4) (2)

12 Retention of   Art.               Art.            

computer 29, 3
data 30 and
and 6
31

In the Philippines, Republic Act No. 10175 adopts an approach which is similar to the
UNODC’s appreciation of cybercrimes as a “collection of acts or conduct.” We have thus
transplanted some of the provisions that are still part of an emerging consensus. Thus,
the Cybercrime Prevention Act of 2012 in question provides for the following “basket”
of punishable acts:

CHAPTER II

PUNISHABLE ACTS
SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(1)  Illegal Access. – The access to the whole or any part of a computer system without
right.

(2)  Illegal Interception. – The interception made by technical means without right of any
non-public transmission of computer data to, from, or within a computer system
including electromagnetic emissions from a computer system carrying such computer
data.

(3)  Data Interference. — The intentional or reckless alteration, damaging, deletion or

deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.

(4)  System Interference. — The intentional alteration or reckless hindering or

interference with the functioning of a computer or computer network by inputting,
transmitting, damaging, deleting, deteriorating, altering or suppressing computer data
or program, electronic document, or electronic data message, without right or
authority, including the introduction or transmission of viruses.

(5)  Misuse of Devices.

(i) The use, production, sale, procurement, importation, distribution, or otherwise

making available, without right, of:

(aa) A device, including a computer program, designed or adapted primarily for the
purpose of committing any of the offenses under this Act; or

(bb) A computer password, access code, or similar data by which the whole or any part
of a computer system is capable of being accessed with intent that it be used for the
purpose of committing any of the offenses under this Act.

(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent
to use said devices for the purpose of committing any of the offenses under this section.

(6)  Cyber-squatting. – The acquisition of a domain name over the internet in bad faith
to profit, mislead, destroy reputation, and deprive others from registering the same, if
such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration:

(ii) Identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

(b)  Computer-related Offenses:

(1)  Computer-related Forgery. —

(i) The input, alteration, or deletion of any computer data without right resulting in
inauthentic data with the intent that it be considered or acted upon for legal purposes
as if it were authentic, regardless whether or not the data is directly readable and
intelligible; or

(ii) The act of knowingly using computer data which is the product of computer-related
forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest
design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of

computer data or program or interference in the functioning of a computer system,
causing damage thereby with fraudulent intent: Provided, That if no damage has yet
been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer,
possession, alteration or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided, That if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.

(c) Content-related Offenses:

(1)  Cybersex. — The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.

(2)  Child Pornography. — The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.

(3)  Unsolicited Commercial Communications. — The transmission of commercial

electronic communication with the use of computer system which seek to advertise,
sell, or offer for sale products and services are prohibited unless:

(i)   There is prior affirmative consent from the recipient; or

(ii)  The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii)   The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;

(bb) The commercial electronic communication does not purposely disguise the source
of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

(4)  Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b)  Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

II (G)

No Actual Controversy

The overview of the internet and the context of cyberspace regulation should readily
highlight the dangers of proceeding to rule on the constitutional challenges presented
by these consolidated petitions barren of actual controversies. The platforms and
technologies that move through an ever expanding network of networks are varied. The
activities of its users, administrators, commercial vendors, and governments are also as
complex as they are varied.

The internet continues to grow. End User License Agreements (EULA) of various
applications may change its terms based on the feedback of its users. Technology may
progress to ensure that some of the fears that amount to a violation of a constitutional
right or privilege will be addressed. Possibly, the violations, with new technologies, may
become more intrusive and malignant than jurisprudential cures that we can only
imagine at present.

All these point to various reasons for judicial restraint as a natural component of
judicial review when there is no actual case. The court’s power is extraordinary and
residual. That is, it should be invoked only when private actors or other public
instrumentalities fail to comply with the law or the provisions of the Constitution. Our
faith in deliberative democracy requires that we presume that political forums are as
competent to read the Constitution as this court.

Also, the court’s competence to deal with these issues needs to evolve as we
understand the context and detail of each technology implicated in acts that are
alleged to violate law or the Constitution. The internet is an environment, a
phenomenon, a network of complex relationships and, thus, a subject that cannot be
fully grasped at first instance. This is where adversarial positions with concrete
contending claims of rights violated or duties not exercised will become important.
Without the benefit of these adversarial presentations, the implications and
consequences of judicial pronouncements cannot be fully evaluated.

Finally, judicial economy and adjudicative pragmatism requires that we stay our hand
when the facts are not clear. Our pronouncements may not be enough or may be too
detailed. Parties might be required to adjudicate again. Without an actual case, our
pronouncements may also be irrelevant to the technologies and relationships that
really exist. This will tend to undermine our own credibility as an institution.

We are possessed with none of the facts. We have no context of the assertion of any
right or the failure of any duty contained in the Constitution. To borrow a meme that
has now become popular in virtual environments: We cannot be asked to doubt the
application of provisions of law with most of the facts in the cloud.

III

Limited Exception: Overbreadth Doctrine

There is, however, a limited instance where facial review of a statute is not only allowed
but essential: when the provision in question is so broad that there is a clear and
imminent threat that actually operates or it can be used as a prior restraint of speech.
This is when there can be an invalidation of the statute “on its face” rather than “as
applied.”

The use of the doctrine gained attention in this jurisdiction within a separate opinion by
Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources,[134] thus:

The only instance where a facial challenge to a statute is allowed is when it operates
in the area of freedom of expression. In such instance, the overbreadth doctrine
permits a party to challenge the validity of a statute even though as applied to him it is
not unconstitutional but it might be if applied to others not before the Court whose
activities are constitutionally protected. Invalidation of the statute “on its face” rather
than “as applied” is permitted in the interest of preventing a “chilling” effect on
freedom of expression. But in other cases, even if it is found that a provision of a statute
is unconstitutional, courts will decree only partial invalidity unless the invalid portion is
so far inseparable from the rest of the statute that a declaration of partial invalidity is
not possible.[135] (Emphasis supplied)

The doctrine was again revisited in the celebrated plunder case of former President
Joseph Estrada, when Justice Mendoza, in his concurring opinion, explained at length
when a facial challenge may be allowed:

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible “chilling effect” upon protected speech. The theory is
that “[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.” The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area
of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized
an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”
In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words” and, again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to
protected conduct.” For this reason, it has been held that “a facial challenge to a
legislative Act is … the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would
be valid.” As for the vagueness doctrine, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. “A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.”

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing “on their faces” statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the established rule is that
“one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons
or other situations in which its application might be unconstitutional.” As has been
pointed out, “vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter
of due process typically are invalidated [only] ‘as applied’ to a particular
defendant.”Consequently, there is no basis for petitioner’s claim that this Court review
the Anti-Plunder Law on its face and in its entirety.[136]

The overbreadth doctrine in the context of a facial challenge was refined further
in David v. Arroyo,[137] where this court speaking through Justice Sandoval-Gutierrez
disallowed petitioners from challenging Proclamation No. 1017 on its face for being
overbroad. In doing so, it laid down the guidelines for when a facial challenge may be
properly brought before this court, thus:

First and foremost, the overbreadth doctrine is an analytical tool developed for testing
“on their faces” statutes in free speech cases, also known under the American Law as
First Amendment cases.

xxxx

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
“reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.” x x x

xxxx

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only “spoken words” and again, that “overbreadth claims,
if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct.” Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be

used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for
this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied unconstitutionally to
others, i.e., in other situations not before the Court. A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute “on its
face,” not merely “as applied for” so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the “chilling;”
deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s “very existence may cause others
not before the court to refrain from constitutionally protected speech or expression.”
An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris, it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.[138] (Emphasis originally provided)

The Mendoza opinion, however, found its way back into the legal spectrum when it was
eventually adopted by this court in the cases of Romualdez v.
Sandiganbayan[139] and Romualdez v. Commission on Elections.[140] Upon motion for
reconsideration in Romualdez v. Commission on Elections,[141] however, this court revised
its earlier pronouncement that a facial challenge only applies to free speech cases,
thereby expanding its scope and usage. It stated that:

x x x The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge.[142]

However, the latest pronouncement of this court on the doctrine was the case
of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council.[143] In it,
this court, while reiterating Justice Mendoza’s opinion as cited in the Romualdez cases,
explained further the difference between a “facial” challenge and an “as applied”
challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the “chilling effect” on protected speech, the exercise of which should not at all times
be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts formerly considered innocent and
lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.

The Court reiterated that there are “critical limitations by which a criminal statute may
be challenged” and “underscored that an ‘on-its-face’ invalidation of penal statutes x x x
may not be allowed.”

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the State’s
ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding that
the law is clear as applied to him.

It is settled, on the other hand, that the application of the overbreadth doctrine is

limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the
litigants.

xxxx

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment, and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are
justified by the “transcendent value to all society of constitutionally protected
expression.”[144] (Emphasis and underscoring originally supplied)

III (A)

Test for Allowable Facial Review

In my view, the prevailing doctrine now is that a facial challenge only applies to cases
where the free speech and its cognates are asserted before the court. While as a
general rule penal statutes cannot be subjected to facial attacks, a provision in a
statute can be struck down as unconstitutional when there is a clear showing that
there is an imminent possibility that its broad language will allow ordinary law
enforcement to cause prior restraints of speech and the value of that speech is such
that its absence will be socially irreparable.

This, therefore, requires the following:

First, the ground for the challenge of the provision in the statute is that it violates
freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an interpretation
that will allow prior restraints;
Fourth, the “chilling effect” is not simply because the provision is found in a penal
statute but because there can be a clear showing that there are special circumstances
which show the imminence that the provision will be invoked by law enforcers;

Fifth, the application of the provision in question will entail prior restraints; and

Sixth, the value of the speech that will be restrained is such that its absence will be
socially irreparable. This will necessarily mean balancing between the state interests
protected by the regulation and the value of the speech excluded from society.

III (B)

Reason for the Doctrine

The reason for this exception can be easily discerned.

The right to free speech and freedom of expression take paramount consideration
among all the rights of the sovereign people. In Philippine Blooming Mills Employment
Organization et al. v. Philippine Blooming Mills, Co. Inc.,[145] this court discussed this
hierarchy at length:

(1) In a democracy, the preservation and enhancement of the dignity and worth of the
human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person."

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security
"against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, and the scorn and derision of those who have no patience with
general principles."

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to
withdraw "certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty and property, to free speech, or free
press, freedom of worship and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no elections." Laski proclaimed
that "the happiness of the individual, not the well-being of the State, was the criterion
by which its behaviour was to be judged. His interests, not its power, set the limits to
the authority it was entitled to exercise."

(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the
ideas we cherish; or as Socrates insinuated, not only to protect the minority who want
to talk, but also to benefit the majority who refuse to listen. And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one
are not safe unless the liberties of all are protected.

(4) The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment. Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through their suffrage but also
in the administration of public affairs as well as in the discipline of abusive public
officers. The citizen is accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized. Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the actual application of sanctions," they
"need breathing space to survive," permitting government regulation only "with narrow
specificity."

Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."

The superiority of these freedoms over property rights is underscored by the fact that a
mere reasonable or rational relation between the means employed by the law and its
object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive
— would suffice to validate a law which restricts or impairs property rights. On the other
hand, a constitutional or valid infringement of human rights requires a more stringent
criterion, namely existence of a grave and immediate danger of a substantive evil which
the State has the right to prevent.[146] (Citations omitted)

The right to freedom of expression is a primordial right because it is not only an

affirmation but a positive execution of the basic nature of the state defined in Article II,
Section 1 of the 1987 Constitution:
The Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them.

The power of the State is derived from the authority and mandate given to it by the
people, through their representatives elected in the legislative and executive branches
of government. The sovereignty of the Filipino people is dependent on their ability to
freely express themselves without fear of undue reprisal by the government.
Government, too, is shaped by comments and criticisms of the various publics that it
serves.

The ability to express and communicate also defines individual and collective
autonomies. That is, we shape and refine our identity and, therefore, also our thoughts
as well as our viewpoints through interaction with others. We choose the modes of our
expression that will also affect the way that others receive our ideas. Thoughts
remembered when expressed with witty eloquence are imbibed through art. Ideas,
however, can be rejected with a passion when expressed through uncouth caustic
verbal remarks or presented with tasteless memes. In any of these instances, those who
receive the message see the speaker in a particular way, perhaps even belonging to a
category or culture.

Furthermore, what we learn from others bears on what we think as well as what and
how we express. For the quality of our own expression, it is as important to tolerate the
expression of others.

This fundamental and primordial freedom has its important inherent and utilitarian
justifications. With the imminent possibility of prior restraints, the protection must be
extraordinarily vigilant.

In Chavez v. Gonzales,[147] the court elaborated further on the primacy of the right to

freedom of speech:

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. When atrophied, the right becomes meaningless. The right belongs as
well – if not more – to those who question, who do not conform, who differ. 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.” To paraphrase Justice Holmes, it is freedom for the thought that we
hate, no less than for the thought that agrees with us.
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, 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. (Citations
omitted) [148]

III (C)

Overbreadth versus Vagueness

A facial challenge, however, can only be raised on the basis of overbreadth, not
vagueness. Vagueness relates to a violation of the rights of due process. A facial
challenge, on the other hand, can only be raised on the basis of overbreadth, which
affects freedom of expression.

Southern Hemisphere provided the necessary distinction:

A statute or act suffers from the defect of vagueness when it lacks comprehensible

standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control
or prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from
that behavior, even though some of it is protected.[149]
The facial challenge is different from an “as-applied” challenge or determination of a
penal law. In an “as-applied” challenge, the court undertakes judicial review of the
constitutionality of legislation “as applied” to particular facts, parties or defendants and
on a case-to-case basis. In a challenge “as applied,” the violation also involves an
abridgement of the due process clause. In such instances, the burden of the petitioner
must be to show that the only reasonable interpretation is one that is arbitrary or
unfair.

III (D)

“Chilling Effect”

In the petitions before this court, the facial challenge can be used but only insofar as
those provisions that are so broad as to ordinarily produce a “chilling effect” on speech.

We have transplanted and adopted the doctrine relating to “chilling effects” from the
jurisprudence of the United States Supreme Court. The evolution of their doctrine,
therefore, should be advisory but not binding for this court.

The concept of a “chilling effect” was first introduced in the case of Wieman v.
Updegraff.[150] In that case, the United States Supreme Court declared as
unconstitutional Oklahoma state legislature which authorized the docking of salaries of
employees within the state who failed to render a “loyalty oath” disavowing
membership in communist organizations. The validity of the Oklahama state legislature
included teachers in public schools who alleged violations of the Due Process Clause. In
his concurring opinion, Justice Frankfurter first introduced the concept of a “chilling
effect,” stating:

By limiting the power of the States to interfere with freedom of speech and freedom of
inquiry and freedom of association, the Fourteenth Amendment protects all persons, no
matter what their calling. But, in view of the nature of the teacher's relation to the
effective exercise of the rights which are safeguarded by the Bill of Rights and by
the Fourteenth Amendment, inhibition of freedom of thought, and of action upon
thought, in the case of teachers brings the safeguards of those amendments vividly into
operation. Such unwarranted inhibition upon the free spirit of teachers affects not only
those who, like the appellants, are immediately before the Court. It has an unmistakable
tendency to chill that free play of the spirit which all teachers ought especially to
cultivate and practice; it makes for caution and timidity in their associations by potential
teachers.[151]

The concept of a “chilling effect” was further elaborated in the landmark case of New
York Times v. Sullivan:[152]

We should be particularly careful, therefore, adequately to protect the liberties which

are embodied in the First and Fourteenth Amendments. It may be urged that
deliberately and maliciously false statements have no conceivable value as free speech.
That argument, however, is not responsive to the real issue presented by this case,
which is whether that freedom of speech which all agree is constitutionally protected
can be effectively safeguarded by a rule allowing the imposition of liability upon a jury's
evaluation of the speaker's state of mind. If individual citizens may be held liable in
damages for strong words, which a jury finds false and maliciously motivated, there can
be little doubt that public debate and advocacy will be constrained. And if newspapers,
publishing advertisements dealing with public issues, thereby risk liability, there can also
be little doubt that the ability of minority groups to secure publication of their views on
public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers
Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 530. The opinion of the Court
conclusively demonstrates the chilling effect of the Alabama libel laws on First
Amendment freedoms in the area of race relations. The American Colonists were not
willing, nor should we be, to take the risk that "[m]en who injure and oppress the
people under their administration [and] provoke them to cry out and complain" will also
be empowered to "make that very complaint the foundation for new oppressions and
prosecutions." The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721-722 (1735)
(argument of counsel to the jury). To impose liability for critical, albeit erroneous or
even malicious, comments on official conduct would effectively resurrect "the obsolete
doctrine that the governed must not criticize their governors." Cf. Sweeney v. Patterson,
76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458.[153]

In National Association for the Advancement of Colored People v. Button,[154] the United

States Supreme Court categorically qualified the concept of a “chilling effect”:

Our concern is with the impact of enforcement of Chapter 33 upon First Amendment
freedoms.

xxxx

For, in appraising a statute's inhibitory effect upon such rights, this Court has not
hesitated to take into account possible applications of the statute in other factual
contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98; Winters
v. New York, supra,at 333 U. S. 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It
makes no difference that the instant case was not a criminal prosecution, and not based
on a refusal to comply with a licensing requirement. The objectionable quality of
vagueness and overbreadth does not depend upon absence of fair notice to a
criminally accused or upon unchanneled delegation of legislative powers, but upon
the danger of tolerating, in the area of First Amendment freedoms, the existence of a
penal statute susceptible of sweeping and improper application. Marcus v. Search
Warrant, 367 U. S. 717, 367 U. S. 733. These freedoms are delicate and vulnerable, as
well as supremely precious in our society. The threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions. Cf. Smith v.
California, supra, at 361 U. S. 151-154; Speiser v. Randall, 357 U. S. 513, 357 U. S. 526.
Because First Amendment freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296,
3 310 U. S. 11. (Emphasis supplied)[155]

Philippine jurisprudence has incorporated the concept of a “chilling effect,” but the
definition has remained abstract. In Chavez v. Gonzales,[156] this court stated that a
“chilling effect” took place upon the issuance of a press release by the National
Telecommunications Commission warning radio and television broadcasters from using
taped conversations involving former President Gloria Macapagal-Arroyo and the
allegations of fixing elections:

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 person’s 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.
[157]

Taking all these into consideration, as mentioned earlier, a facial attack of a provision
can only succeed when the basis is freedom of expression, when there is a clear
showing that there is an imminent possibility that its broad language will allow
ordinary law enforcement to cause prior restraints of speech, and when the value of
that speech is such that its absence will be socially irreparable.

Among all the provisions challenged in these consolidated petitions, there are only four
instances when the “chilling effect” on speech can be palpable: (a) the “take down”
provision; (b) the provision on cyber libel; (c) the provision on cybersex; and (d) the
clause relating to unbridled surveillance of traffic data. The provisions that provide for
higher penalties for these as well as for dual prosecutions should likewise be declared
unconstitutional because they magnify the “chilling effect” that stifles protected
expression.

For this reason alone, these provisions and clauses are unconstitutional.

IV

The “Take Down” Clause

Section 19 of Republic Act No. 10175 is unconstitutional because it clearly allows prior
restraint. This section provides:

SEC. 19. Restricting or Blocking Access to Computer Data — When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.

Among all the provisions, this is the sole provision that the Office of the Solicitor General
agrees to be declared as unconstitutional.

IV (A)

A Paradigmatic Example of Prior Restraint

There is no doubt of the “chilling effect” of Section 19 of Republic Act No. 10175. It is
indeed an example of an instance when law enforcers are clearly invited to do prior
restraints within vague parameters. It is blatantlyunconstitutional.

Chavez v. Gonzales presents a clear and concise summary of the doctrines governing

prior restraint:

Prior restraint refers to official governmental restrictions on the press or other forms of

expression in advance of actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive, legislative
or judicial branch of the government. Thus, it precludes governmental acts that required
approval of a proposal to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or official that requires some form
of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts.

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, and "any act
that restrains speech is hobbled by the presumption of invalidity and should be greeted
with furrowed brows," 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.

As worded, Section 19 provides an arbitrary standard by which the Department of

Justice may exercise this power to restrict or block access. A prima facie finding is sui
generis and cannot be accepted as basis to stop speech even before it is made. It does
not provide for judicially determinable parameters. It, thus, ensures that all computer
data will automatically be subject to the control and power of the Department of
Justice. This provision is a looming threat that hampers the possibility of free speech and
expression through the internet. The sheer possibility that the State has the ability to
unilaterally decide whether data, ideas or thoughts constitute evidence of a prima
facie commission of a cybercrime will limit the free exchange of ideas, criticism, and
communication that is the bulwark of a free democracy.

There is no question that Section 19 is, thus, unconstitutional.

Cyber Libel

Also unconstitutional is Section 4(c)(4) which reads:

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.

The intent of this provision seems to be to prohibit the defense that libel committed
through the use of a computer is not punishable. Respondents counter that, to date,
libel has not been declared unconstitutional as a violation of the rights to free speech,
freedom of expression, and of the press.

Reference to Article 355 of the Revised Penal Code in Section 4(c)(4) resulted in the
implied incorporation of Articles 353 and 354 as well. Articles 353 to 355 of the Revised
Penal Code provide:

Title Thirteen

CRIMES AGAINST HONOR

Chapter One

LIBEL
Section One. — Definitions, forms, and punishment of this crime.

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be

malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

The ponencia claims that “libel is not a constitutionally protected speech” and “that
government has an obligation to protect private individuals from defamation.”[158]

I strongly dissent from the first statement. Libel is a label that is often used to stifle
protected speech. I agree with the second statement but only to the extent that
defamation can be protected with civil rather than criminal liabilities.

Given the statutory text, the history of the concept of criminal libel and our court’s
experience with libel, I am of the view that its continued criminalization especially in
platforms using the internet unqualifiedly produces a “chilling effect” that stifles our
fundamental guarantees of free expression. Criminalizing libel contradicts our notions
of a genuinely democratic society.

V (B)

As Currently Worded, Libel is Unconstitutional

The crime of libel in its 1930 version in the Revised Penal Code was again reenacted
through the Cybercrime Prevention Act of 2012. It simply added the use of the internet
as one of the means to commit the criminal acts. The reenactment of these archaic
provisions is unconstitutional for many reasons. At minimum, it failed to take into
consideration refinements in the interpretation of the old law through decades of
jurisprudence. It now stands starkly in contrast with the required constitutional
protection of freedom of expression.

The ponencia fails to account for the evolution of the requirement of malice in
situations involving public officers and public figures. At best, the majority will have us
believe that jurisprudence can be read into the current text of the libel law as referred
to in the Cybercrime Prevention Act of 2012.

However, this does not appear to be the intent of the legislature based on the text of
the provision. Congress reenacted the provisions defining and characterizing the crime
of libel as it was worded in 1930. I concur with Justice Carpio’s observations that the law
as crafted fails to distinguish the malice requirement for criticisms of public officers (and
public figures) on the one hand and that for ordinary defamation of private citizens
carefully crafted by jurisprudence. Understandably, it creates doubt on the part of those
who may be subject to its provisions. The vagueness of the current text, reenacted by
reference by Rep. Act No. 10175 is as plain as day.

It is difficult to accept the majority’s view that present jurisprudence is read into the
present version of the law. This is troubling as it is perplexing. The majority of the 200
plus members of the House of Representatives and the 24 Senators chose the old text
defining the crime of libel. The old text does not conform to the delicate balance carved
out by jurisprudence. Just the sheer number of distinguished and learned lawyers in
both chambers would rule out oversight or negligence. As representatives of our
people, they would have wanted the crime to be clearly and plainly spelled out so that
the public will be properly informed. They could not have wanted the ordinary Filipino
to consult the volumes of Philippine Reports in order to find out that the text did not
mean plainly what it contained before they exercised their right to express.

It is, thus, reasonable to presume that Congress insists on the plain meaning of the old
text. Possibly, through inaction, they would replace jurisprudential interpretation of the
freedom of expression clause in relation to defamation by reenacting the same 1930
provisions.

V (C)

Negating the Balance Struck

Through Jurisprudence
A survey of these constant efforts in jurisprudence to qualify libel as provided in the old
statute is needed to understand this point.

United States v. Bustos[159] interpreted the requirement of malice for libel under Act No.
277.[160] This court ruled that “malice in fact” is required to sustain a conviction under
the law when there are “justifiable motives present” in a case. Thus:

In an action for libel suppose the defendant fails to prove that the injurious publication
or communication was true. Can he relieve himself from liability by showing that it was
published with "justifiable motives" whether such publication was true or false or even
malicious? There is no malice in law when "justifiable motives" exist, and, in the
absence of malice, there is no libel under the law. (U. S. vs. Lerma, supra.) But if there
is malice in fact, justifiable motives can not exist. The law will not allow one person to
injure another by an injurious publication, under the cloak of "good ends" or "justifiable
motives," when, as a matter of fact, the publication was made with a malicious intent. It
is then a malicious defamation. The law punishes a malicious defamation and it was
not intended to permit one to maliciously injure another under the garb of "justifiable
motives." When malice in fact is shown to exist the publisher can not be relieved from
liability by a pretense of "justifiable motives." Section 3 relieves the plaintiff from the
necessity of proving malice simply when no justifiable motives are shown, but it does
not relieve the defendant from liability under the guise of "justifiable motives" when
malice actually is proved. The defense of "the truth" of the "injurious publication" (sec.
4) and its character as a privileged communication (sec. 9) means nothing more than the
truth in one instance and the occasion of making it in the other together with proof of
justifiable motive, rebuts the prima facie inference of malice in law and throws upon the
plaintiff or the State, the onus of proving malice in fact. The publication of a malicious
defamation, whether it be true or not, is clearly an offense under Act No. 277.
[161]
 (Emphasis supplied)

Actual malice as a requirement evolved further.

It was in the American case of New York Times Co. v. Sullivan,[162] which this court
adopted later on,[163] that the “actual malice”[164] requirement was expounded and
categorically required for cases of libel involving public officers. In resolving the issue of
“whether x x x an action brought by a public official against critics of his official conduct,
abridges the freedom of speech and of the press that is guaranteed by the First and
Fourteenth Amendments”,[165] the New York Times case required that actual malice
should be proven when a case for defamation “includes matters of public concern,
public men, and candidates for office.”[166] Thus:

Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business, and the various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy
the First Amendment.

The general proposition that freedom of expression upon public questions is secured by
the First Amendment has long been settled by our decisions. The constitutional
safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people." Roth v.
United States, 354 U.S. 476, 484.

The maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system.

xxxx

Injury to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error. Where judicial officers are involved, this
Court has held that concern for the dignity and reputation of the courts does not
justify the punishment as criminal contempt of criticism of the judge or his
decision. Bridges v. California, 314 U.S. 252.This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342,
343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present
danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367; Wood v.
Georgia, 370 U.S. 375. If judges are to be treated as "men of fortitude, able to thrive in a
hardy climate," Craig v. Harney, supra, 331 U.S. at 376, surely the same must be true of
other government officials, such as elected city commissioners. Criticism of their official
conduct does not lose its constitutional protection merely because it is effective
criticism, and hence diminishes their official reputations. Stromberg v. California, 283
U.S. 359, 369.[167] (Emphasis supplied)

Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M.
Capulong,[168] as affirmed in the case of Borjal v. Court of Appeals,[169] adopted the
doctrine in New York Times to “public figures.” In Ayer Productions:

A limited intrusion into a person's privacy has long been regarded as permissible where
that person is a public figure and the information sought to be elicited from him or to be
published about him constitute of a public character. Succinctly put, the right of privacy
cannot be invoked resist publication and dissemination of matters of public interest. The
interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate public concern.[170]

Public figures were defined as:

A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this category
are those who have achieved some degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball player, a pugilist, or any other
entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and
no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public attention is focused upon him as a
person.

Such public figures were held to have lost, to some extent at least, their tight to privacy.
Three reasons were given, more or less indiscriminately, in the decisions" that they had
sought publicity and consented to it, and so could not complaint when they received it;
that their personalities and their affairs has already public, and could no longer be
regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News"
includes all events and items of information which are out of the ordinary hum-drum
routine, and which have 'that indefinable quality of information which arouses public
attention.' To a very great extent the press, with its experience or instinct as to what its
readers will want, has succeeded in making its own definition of news, as a glance at any
morning newspaper will sufficiently indicate. It includes homicide and other crimes,
arrests and police raids, suicides, marriages and divorces, accidents, a death from the
use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old
girl, the reappearance of one supposed to have been murdered years ago, and
undoubtedly many other similar matters of genuine, if more or less deplorable, popular
appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination
of news in the scene of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line,
the courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt.[171] (Emphasis supplied)

This doctrine was reiterated in Vasquez v. Court of Appeals.[172] Petitioner was charged

with libel for allegedly defaming his Barangay Chairperson in an article published in the
newspaper, Ang Tinig ng Masa. Petitioner allegedly caused the dishonor and discredit of
the Barangay Chairperson through the malicious imputation that the public officer
landgrabbed and that he was involved in other illegal activities. In acquitting the
petitioner:

The question is whether from the fact that the statements were defamatory, malice can
be presumed so that it was incumbent upon petitioner to overcome such presumption.
Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against
a public official with respect to the discharge of his official duties and functions and the
truth of the allegation is shown, the accused will be entitled to an acquittal even though
he does not prove that the imputation was published with good motives and for
justifiable ends.

xxxx

In denouncing the barangay chairman in this case, petitioner and the other residents of
the Tondo Foreshore Area were not only acting in their self-interest but engaging in the
performance of a civic duty to see to it that public duty is discharged faithfully and well
by those on whom such duty is incumbent. The recognition of this right and duty of
every citizen in a democracy is inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if it
relates to official conduct, unless the public official concerned proves that the
statement was made with actual malice—that is, with knowledge that it was false or
with reckless disregard of whether it was false or not. This is the gist of the ruling in
the landmark case of New York Times v. Sullivan, which this Court has cited with
approval in several of its own decisions. This is the rule of “actual malice.”

A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations
would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all,
infringe on the constitutionally guaranteed freedom of expression. Such a rule would
deter citizens from performing their duties as members of a self-governing community.
Without free speech and assembly, discussions of our most abiding concerns as a nation
would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and
the “greatest menace to freedom is an inert people.”[173] (Emphasis supplied)
Guingguing v. Court of Appeals[174] involved the publication of information on private
complainant’s criminal cases including photographs of him being arrested. This court
again reiterated:

[Article 354 of the Revised Penal Code], as applied to public figures complaining of

criminal libel, must be construed in light of the constitutional guarantee of free
expression, and this Court’s precedents upholding the standard of actual malice with the
necessary implication that a statement regarding a public figure if true is not libelous.
The provision itself allows for such leeway, accepting as a defense “good intention and
justifiable motive.” The exercise of free expression, and its concordant assurance of
commentary on public affairs and public figures, certainly qualify as “justifiable motive,”
if not “good intention.”

xxxx

As adverted earlier, the guarantee of free speech was enacted to protect not only
polite speech, but even expression in its most unsophisticated form. Criminal libel
stands as a necessary qualification to any absolutist interpretation of the free speech
clause, if only because it prevents the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to safeguard against
fears that the public debate might be muted due to the reckless enforcement of libel
laws, truth has been sanctioned as a defense, much more in the case when the
statements in question address public issues or involve public figures.[175] (Emphasis
supplied)

In Villanueva v. Philippine Daily Inquirer, Inc.,[176] despite the respondents’ false

reporting, this court continued to apply the actual malice doctrine that evolved
from Ayer Productions. Hence:

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
malice or damages, i.e. libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.[177]

V (D)

Overbreadth by Reenactment

With the definite evolution of jurisprudence to accommodate free speech values, it is

clear that the reenactment of the old text of libel is now unconstitutional. Articles 353,
354, and 355 of the Revised Penal Code — and by reference, Section 4(c)4 of the law in
question — are now overbroad as it prescribes a definition and presumption that have
been repeatedly struck down by this court for several decades.
A statute falls under the overbreadth doctrine when “a governmental purpose may not
be achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.”[178] Section 4(c)(4) of Rep. Act No. 10175 and Articles 353, 354,
and 355 produce a chilling effect on speech by being fatally inconsistent with Ayer
Productions as well as by imposing criminal liability in addition to civil ones. Not only
once, but several times, did this court uphold the freedom of speech and expression
under Article III, Section 4 of the 1987 Constitution[179] over an alleged infringement of
privacy or defamation. This trend implies an evolving rejection of the criminal nature of
libel and must be expressly recognized in view of this court’s duty to uphold the
guarantees under the Constitution.

The threat to freedom of speech and the public’s participation in matters of general
public interest is greater than any satisfaction from imprisonment of one who has
allegedly “malicious[ly] imput[ed] x x x a crime, or x x x a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or xxx blacken[ed] the
memory of [the] dead.”[180] The law provides for other means of preventing abuse and
unwarranted attacks on the reputation or credibility of a private person. Among others,
this remedy is granted under the Chapter on Human Relations in the Civil Code,
particularly Articles 19,[181] 20,[182] 21,[183] and even 26.[184] There is, thus, no cogent
reason that a penal statute would overbroadly subsume the primordial right of
freedom of speech provided for in the Constitution.

V (E)

Dangers to Protected Speech Posed by Libel

Exacerbated in the Internet

The effect on speech of the dangerously broad provisions of the current law on libel is
even more palpable in the internet.

Libel under Article 353 is textually defined as the:

x x x public and malicious imputation of a crime, or of a vice or defect, real or

imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead. (Emphasis supplied)

Social media allows users to create various groups of various sizes. Some of these sites
are for specific purposes. Others are only open to a select group of “friends” or
“followers”. The ponencia’s distinction between the author and those who share (or
simply express their approval) of the posted message oversimplifies the phenomenon of
exchanges through these sites.
Social media or social networking sites are websites that primarily exist to allow users to
post a profile online and exchange or broadcast messages and information with their
friends and contacts.[185]

Social media or social networking as it is used today began in the United States in 1994
when Beverly Hills Internet created the online community known as Geocities.[186] In
Geocities, individuals were able to design custom-made websites using hypertext mark-
up language or HTML and upload content online. This community then paved the way
for widespread online interaction, leading to the inception of America Online’s Instant
Messenger, where subscribers of the internet service provider could send real-time
exchanges through the network. This led to the prevalence of instant messaging
applications such as ICQ and online chatrooms such as mIRC.[187] In 1999, British website
Friends Reunited was the first popular online hub whose primary purpose was to allow
users to interact and reconnect with former classmates through the internet.
[188]
 Friendster, launched in 2002, became one the first and largest online social
networking sites, reaching up to 117 million users before its decline.[189] The site was
dedicated to connecting with as many people as possible, without a need for prior
physical contact or established relationships. MySpace, another social networking site
launched in 2003, garnered more visitors than popular search engine sites Google and
Yahoo in 2006.[190] These online social networking sites have had several popular
iterations such as Multiply, LiveJournal or Blogger, which serve as venues for individuals
who wish to post individual journal entries, photographs or videos.

Today, the most popular social networking sites are Facebook and Twitter. Facebook,
which was initially known as Facesmash for exclusive use of Harvard University students
and alumni, began in 2003. Eventually, Facebook became the most prevalent and
ubiquitous online social networking site, with some 750 million users worldwide, as of
July 2011.[191]

Twitter gained popularity immediately after its founding in 2006. It gained prominence
by positioning itself as a real-time information network while allowing ease of access
and immediate sharing to an expanding set of users. To date, Twitter has about 750
million registered users, with about 200 million users making use of the platform on a
regular basis.[192] In its latest initial public offering, Twitter disclosed that there are over
500 million tweets (messages with a140-character limit) made in a day.[193]

The most recent social networking phenomenon is Instagram, which was launched in
October 2010. This application allows instantaneous sharing of photographs especially
through smartphones. Today, Instagram has 150 million active users and with over 1.5
billion “likes” of photos shared on the network every day.[194]

These platforms in social media allow users to establish their own social network. It
enables instantaneous online interaction, with each social networking platform thriving
on its ability to engage more and more users. In order to acquire more users, the
owners and developers of these social media sites constantly provide their users with
more features, and with more opportunities to interact. The number of networks grows
as each participant is invited to bring in more of their friends and acquaintances to use
the platforms. Social media platforms, thus, continue to expand in terms of its influence
and its ability to serve as a medium for human interaction. These also encourage self-
expression through words, pictures, video, and a combination of these genres.

There can be personal networks created through these platforms simply for
conversations among friends. Like its counterpart in the real world, this can be similar to
a meeting over coffee where friends or acquaintances exchange views about any and all
matters of their interest. In normal conversation, the context provided by the
participants’ relationships assure levels of confidence that will allow them to exchange
remarks that may be caustic, ironic, sarcastic or even defamatory.

With social media, one’s message in virtual conversations may be reposted and may
come in different forms. On Facebook, the post can be “shared” while on Twitter, the
message can be “retweeted.” In these instances, the author remains the same but the
reposted message can be put in a different context by the one sharing it which the
author may not have originally intended. The message that someone is a thief and an
idiot in friendly and private conversation when taken out of that context will become
defamatory. This applies regardless of the standing of the subject of conversation: The
person called a thief and an idiot may be an important public figure or an ordinary
person.

The ponencia proposes to exonerate the user who reposts but maintain the liability of
the author. This classification is not clear anywhere in the text of the law.
Parenthetically, whether calling someone a thief or an idiot is considered defamatory is
not also clear in the text of the law.

Even if we assume arguendo that this is a reasonable text-based distinction, the result
proposed by the majority does not meet the proposed intent of the law. Private
individuals (as opposed to public officials or figures) are similarly maligned by reposts.

This shows the arbitrariness of the text of the law as well as the categorization proposed
by the ponencia. It leaves too much room for the law enforcer to decide which kinds of
posts or reposts are defamatory. The limits will not be clear to the speaker or writer.
Hence, they will then limit their expression or stifle the sharing of their ideas. They are
definite victims of the chilling effect of the vagueness of the provisions in question.

The problem becomes compounded with messages that are reposted with or without
comment. The following tweets are examples which will provide the heuristic to
understand the problem:

Form A: “@marvicleonen: RT @somebody: Juan is a liar, a thief and an idiot” #thetruth

Form B: “@marvicleonen: This! RT @somebody: Juan is a liar, a thief and an idiot”

#thetruth

Both are posts from a user with the handle @marvicleonen. RT means that the following
message was only reposted (retweeted), and the hashtag #thetruth is simply a way of
categorizing one’s messages. The hashtag itself may also contain speech elements.

Form A is a simple repost. The reasons for reposting are ambiguous. Since reposting is
only a matter of a click of a button, it could be that it was done without a lot of
deliberation. It is also possible that the user agreed with the message and wanted his
network to know of his agreement. It is possible that the user also wanted his network
to understand and accept the message.

Form B is a repost with a comment “This!”. While it may be clearer that there is some
deliberation in the intent to share, it is not clear whether this is an endorsement of the
statement or simply sarcasm. This form is not part of the categorization proposed by the
ponencia.

There are other permutations as there are new platforms that continue to emerge.
Viber and WhatsApp for instance now enable SMS users to create their own network.

There are other problems created by such broad law in the internet. The network made
by the original author may only be of real friends of about 10 people. The network
where his or her post was shared might consist of a thousand participants. Again, the
current law on libel fails to take these problems of context into consideration.

A post, comment or status message regarding government or a public figure has the
tendency to be shared. It easily becomes “viral.” After all, there will be more interest
among those who use the internet with messages that involve issues that are common
to them or are about people that are known to them—usually public officers and public
figures. When the decision in this case will be made known to the public, it is certain to
stimulate internet users to initially post their gut reactions. It will also entice others to
write thought pieces that will also be shared among their friends and followers.

Then, there is the problem of extraterritoriality and the evils that it spawns on speech.
Enforcement of the crime of libel will be viable only if the speaker is within our national
territory. Those residing in other countries are beyond our jurisdiction. To be extradited,
they will have to have laws similar to ours. If they reside in a state different from our
1930 version of libel, then we will have the phenomenon of foreigners or expatriates
having more leeway to criticize and contribute to democratic exchanges than those who
have stayed within our borders.

The broad and simplistic formulation now in Article 353 of the Revised Penal Code
essential for the punishment of cyber libel can only cope with these variations produced
by the technologies in the internet by giving law enforcers wide latitude to determine
which acts are defamatory. There are no judicially determinable standards. The
approach will allow subjective case-by-case ad hoc determination. There will be no real
notice to the speaker or writer. The speaker or writer will calibrate speech not on the
basis of what the law provides but on who enforces it.

This is quintessentially the chilling effect of this law.

The threat of being prosecuted for libel stifles the dynamism of the conversations that
take place in cyberspace. These conversations can be loose yet full of emotion. These
can be analytical and the product of painstaking deliberation. Other conversations can
just be exponential combinations of these forms that provide canisters to evolving ideas
as people from different communities with varied identities and cultures come together
to test their messages.

Certainly, there will be a mix of the public and the private; the serious and the not so
serious. But, this might be the kind of democratic spaces needed by our society: a
mishmash of emotion and logic that may creatively spring solutions to grave public
issues in better and more entertaining ways than a symposium of scholars. Libel with its
broad bright lines, thus, is an anachronistic tool that may have had its uses in older
societies: a monkey wrench that will steal inspiration from the democratic mob.

V (F)

No State Interest in Criminalizing Libel

The kinds of speech that are actually deterred by libel law are more valuable than the
state interest that is sought to be protected by the crime. Besides, there are less
draconian alternatives which have very minimal impact on the public’s fundamental
right of expression. Civil actions for defamation do not threaten the public’s
fundamental right to free speech. They narrow its availability such that there is no
unnecessary chilling effect on criticisms of public officials or policy. They also place the
proper economic burden on the complainant and, therefore, reduce the possibility that
they be used as tools to harass or silence dissenters.

The purposes of criminalizing libel come to better light when we review its history. This
court has had the opportunity to trace its historical development. Guingguing v. Court
of Appeals[195] narrated:
Originally, the truth of a defamatory imputation was not considered a defense in the
prosecution for libel. In the landmark opinion of England's Star Chamber in the Libelis
Famosis case in 1603, two major propositions in the prosecution of defamatory remarks
were established: first, that libel against a public person is a greater offense than one
directed against an ordinary man, and second, that it is immaterial that the libel be true.
These propositions were due to the fact that the law of defamatory libel was
developed under the common law to help government protect itself from criticism
and to provide an outlet for individuals to defend their honor and reputation so they
would not resort to taking the law into their own hands.

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

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

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

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral
defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man
who once famously opined, “Were it left to me to decide whether we should have a
government without newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter.”[196]
It was in that case where the court noted the history of early American media that
focused on a “mad dog rhetoric” approach. This, in turn, led the court to conclude that
“[t]hese observations are important in light of the misconception that freedom of
expression extends only to polite, temperate, or reasoned expression. x x x Evidently,
the First Amendment was designed to protect expression even at its most rambunctious
and vitriolic form as it had prevalently taken during the time the clause was
enacted.”[197]

The case that has defined our understanding of the concept of modern libel – the New
York Times Co. v. Sullivan[198] – then followed. As discussed earlier, the New York
Times case required proof of actual malice when a case for defamation “includes
matters of public concern, public men, and candidates for office.”[199]

The cases of Garrison v. Louisiana, and Curtis Publishing Co. v. Butts both expanded

the New York Times’ actual malice test to public officials and public figures, respectively.
[200]

Libel in the Philippines first emerged during the Spanish colonial times. The Spanish
Penal Code criminalized “rebellion, sedition, assaults, upon persons in authority, and
their agents, and contempts, insults, injurias, and threats against persons in authority
and insults, injurias, and threats against their agents and other public officers.”[201] Thus,
noting the developments in both the Spanish and American colonial periods, it was
correctly observed that:

The use of criminal libel to regulate speech – especially speech critical of foreign rule or
advocating Philippine independence – was a feature of both the Spanish and American
colonial regimes. The Spanish Penal Code and the Penal Code of the Philippines made
insult and calumny a crime. In the early 1900s, the Philippine Commission (whose
members were all appointed by the President of the United States) punished both civil
and criminal libel under Act No. 277, one of its earliest laws.[202]

During the American occupation, Governor-General William Howard Taft explained how
“libel was made into a criminal offense in the Philippines because ‘the limitations of free
speech are not very well understood’ unlike in the US’”[203] Then came the case of U.S. v.
Ocampo,[204] where Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes,
and Faustino Aguilar were charged with libel in connection with the publication of the
article “Birds of Prey” in the newspaper El Renacimiento. The article allegedly defamed
Philippine Commission member and Interior Secretary Mr. Dean C. Worcester. This
court affirmed the conviction of Ocampo and Kalaw stating that there were no
justifiable motives found in the publication of the article.

In essence, Philippine libel law is “a ‘fusion’ of the Spanish law on defamacion and the
American law on libel.”[205] It started as a legal tool to protect government and the status
quo. The bare text of the law had to be qualified through jurisprudential interpretation
as the fundamental right to expression became clearer. In theory, libel prosecution has
slowly evolved from protecting both private citizens and public figures to its modern
notion of shielding only private parties from defamatory utterances.

But, a survey of libel cases during the past two (2) decades will reveal that the libel cases
that have gone up to the Supreme Court[206] generally involved notable personalities for
parties. Relatively, libel cases that involve private parties before the Supreme Court are
sparse.[207] Dean Raul Pangalangan, former dean of the University of the Philippines
College of Law and now publisher of the Philippine Daily Inquirer, observed that “libel
cases are pursued to their conclusion mainly by public figures, x x x [since those filed] by
private persons are settled amicably before the prosecutor.”[208] Among the cases that
reached the Supreme Court were those involving offended parties who were electoral
candidates,[209] ambassadors and business tycoons,[210] lawyers,[211] actors or celebrities,
[212]
 corporations, [213] and, public officers.[214] Even court officials have been involved as
complainants in libel cases.[215]

This attests to the propensity to use the advantages of criminal libel by those who are
powerful and influential to silence their critics. Without doubt, the continuous evolution
and reiteration of the jurisprudential limitations in the interpretation of criminal libel as
currently worded has not been a deterrent. The present law on libel as reenacted by
Section 4(c)(4) of Rep. Act No. 10175 will certainly do little to shield protected speech.
This is clear because there has been no improvement in statutory text from its version in
1930.

Libel law now is used not so much to prosecute but to deter speech. What is charged as
criminal libel may contain precious protected speech. There is very little to support the
view of the majority that the law will not continue to have this effect on speech.

This court has adopted the American case of Garrison v. Louisiana, albeit qualifiedly, in
recognizing that there is an “international trend in diminishing the scope, if not the
viability, of criminal libel prosecutions.”[216] Garrison struck down the Louisiana Criminal
Defamation Statute and held that the statute incorporated constitutionally invalid
standards when it came to criticizing or commenting on the official conduct of public
officials.

It is time that we now go further and declare libel, as provided in the Revised Penal
Code and in the Cybercrime Prevention Act of 2012, as unconstitutional.

This does not mean that abuse and unwarranted attacks on the reputation or credibility
of a private person will not be legally addressed. The legal remedy is civil in nature and
granted in provisions such as the Chapter on Human Relations in the Civil Code,
particularly Articles 19, 20, and 21.[217] These articles provide:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

Article 21. Any person who wilfully causes loss or injury to another in manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

This court previously discussed the nature and applicability of Articles 19 to 21 of the
Civil Code, stating that:

[Article 19], known to contain what is commonly referred to as the principle of abuse of
rights, sets certain standards which must be observed not only in the exercise of one's
rights but also in the performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty and good faith. The
law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may nevertheless become the
source of some illegality. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal wrong
is thereby committed for which the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the government of human relations and for
the maintenance of social order, it does not provide a remedy for its violation.
Generally, an action for damages under either Article 20 or Article 21 would be proper.

Article 20, which pertains to damage arising from a violation of law, provides that:

Art. 20. Every person who contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

x x x Article 21 of the Civil Code provides that:

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

This article, adopted to remedy the "countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and
moral injury" [Id.] should "vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to provide for specifically in the
statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18, 1978, 83 SCRA 237,
247].
In determining whether or not the principle of abuse of rights may be invoked, there is
no rigid test which can be applied. While the Court has not hesitated to apply Article 19
whether the legal and factual circumstances called for its application [See for e.g.,
Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union
Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL
v. CA, G.R. No. L-46558, July 31, 1981,106 SCRA 391; United General Industries, Inc, v.
Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911,
August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 or other
applicable provision of law, depends on the circumstances of each case. x x x.[218]

In affirming award of damages under Article 19 of the Civil Code, this court has said that
“[t]he legitimate state interest underlying the law of libel is the compensation of the
individuals for the harm inflicted upon them by defamatory falsehood. After all, the
individual’s right to protection of his own good name ‘reflects no more than our basic
concept of the essential dignity and worth of every human being – a concept at the root
of any decent system of ordered liberty.’”[219]

In a civil action, the complainant decides what to allege in the complaint, how much
damages to request, whether to proceed or at what point to compromise with the
defendant. Whether reputation is tarnished or not is a matter that depends on the
toleration, maturity, and notoriety of the person involved. Varying personal thresholds
exists. Various social contexts will vary at these levels of toleration. Sarcasm, for
instance, may be acceptable in some conversations but highly improper in others.

In a criminal action, on the other hand, the offended party does not have full control of
the case. He or she must get the concurrence of the public prosecutor as well as the
court whenever he or she wants the complaint to be dismissed. The state, thus, has its
own agency. It will decide for itself through the prosecutor and the court.

Criminalizing libel imposes a standard threshold and context for the entire society. It
masks individual differences and unique contexts. Criminal libel, in the guise of
protecting reputation, makes differences invisible.

Libel as an element of civil liability makes defamation a matter between the parties. Of
course, because trial is always public, it also provides for measured retribution for the
offended person. The possibility of being sued also provides for some degree of
deterrence.

The state’s interest to protect private defamation is better served with laws providing
for civil remedies for the affected party. It is entirely within the control of the offended
party. The facts that will constitute the cause of action will be narrowly tailored to
address the perceived wrong. The relief, whether injunctive or in damages, will be
appropriate to the wrong.

Declaring criminal libel as unconstitutional, therefore, does not mean that the state
countenances private defamation. It is just consistent with our democratic values.

VI

Cybersex is Unconstitutional

Section 4(c)(1) of Rep. Act No. 10175 is also overbroad and, therefore, unconstitutional.
As presently worded:

SEC. 4. Cybercrime Offenses. —The following acts constitute the offense of cybercrime
punishable under this Act:

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.

The ponencia invites us to go beyond the plain and ordinary text of the law and replace
it with the deliberations in committees that prepared the provision. Thus, it claims:
“(t)he Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and
pornography, i.e. by webcam.”[220]

The majority is not clear why the tighter language defining the crimes of prostitution
and white slavery was not referred to clearly in the provision. Neither does it explain the
state’s interest in prohibiting intimate private exhibition (even for favor or
consideration) by web cam as opposed to physical carnal knowledge required now in
the crime of prostitution.

Worse, the ponencia fails to appreciate the precarious balance that decades of
jurisprudence carved out in relation to criminalizing expression with sexual content.
Instead, the ponencia points out that the “x x x subject of section 4(c)(1)—lascivious
exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC
punishes ‘obscene publications and exhibitions and indecent shows.’”[221] Again, we are
thrown back to the 1930 version of the Revised Penal Code. With constant and
painstaking tests that will bring enlightenment to expression with sexual content
evolved through jurisprudence, it seems that we, as a society, are being thrown back to
the dark ages.
 VI (B)

Sweeping Scope of Section 4(c)(1)

This provision is too sweeping in its scope.

As worded, it unreasonably empowers the state to police intimate human expression.

The standard for “lascivious exhibition” and the meaning of “sexual organ or sexual
activity” empowers law enforcers to pass off their very personal standards of their own
morality. Enforcement will be strict or loose depending on their tastes. Works of art sold
in the market in the form of photographs, paintings, memes, and other genre posted in
the internet would have to shape their expression in accordance with the tastes of local
law enforcers. Art — whether free, sold or bartered — will not expand our horizons; it
will be limited by the status quo in our culture wherein the dominant themes will
remain dominant. There will be patriarchal control over what is acceptable intimate
expression.

This provision, thus, produces a chilling effect. It provides for no restrictions to power
and allows power to determine what is “lascivious” and what is not.

Respondents concede that certain artistic works — even if they feature nudity and the
sexual act — are protected speech. They argue that the interpretation of the provision
should allow for these kinds of expression. However, this reading cannot be found from
the current text of the provision. The Solicitor General, though an important public
officer, is not the local policeman in either an urban or rural setting in the Philippines.

Certain art works that depict the nude human body or the various forms of human
intimacies will necessarily have a certain degree of lasciviousness. Human intimacy,
depicted in the sexual act, is not sterile. It is necessarily evocative, expressive, and full of
emotions. Sexual expression can be titillating and engaging. It is to be felt perhaps more
than it should be rationally understood.

Michaelangelo’s marble statue, David, powerfully depicted an exposed Biblical hero.

Sandro Boticelli’s painting, Birth of Venus, emphatically portrays the naked, full-grown
mythological Roman goddess Venus. The Moche erotic pots of Peru depict various
sexual acts. These representations of human nakedness may be lascivious for some but
expressively educational for others. This can be in images, video files, scientific
publications, or simply the modes of expression by internet users that can be exchanged
in public.

VI (C)

Standards for “Obscenity”

This is not the first time that this court deals with sexually-related expression. This court
has carefully crafted operative parameters to distinguish the “obscene” from the
protected sexual expression. While I do not necessarily agree with the current standards
as these have evolved, it is clear that even these standards have not been met by the
provision in question. I definitely agree that “lascivious” is a standard that is too loose
and, therefore, unconstitutional.

Even for this reason, the provision cannot survive the constitutional challenge.

Obscenity is not easy to define.[222] In Pita v. Court of Appeals, we recognized that

“individual tastes develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five decades ago, is not
necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today.”[223]

Using the concept of obscenity or defining this term is far from being settled.[224] The
court’s task, therefore, is to “[evolve] standards for proper police conduct faced with
the problem” and not so much as to arrive at the perfect definition.[225]

In Gonzales v. Kalaw-Katigbak,[226] we noted the persuasiveness of Roth v. United

States[227] and borrowed some of its concepts in judging obscenity.

There is persuasiveness to the approach followed in Roth: ‘The early leading standard of
obscenity allowed material to be judged merely by the effect of an isolated excerpt
upon particularly susceptible persons. Regina v. Hicklin [1968] LR 3 QB 360. Some American
courts adopted this standard but later decisions have rejected it and substituted this
test: whether to the average person, applying contemporary community standards,
the dominant theme of the material taken as a whole appeals to prurient interest. The
Hicklin test, judging obscenity by the effect of isolated passages upon the most
susceptible persons, might well encompass material legitimately treating with sex, and
so it must be rejected as unconstitutionally restrictive of the freedoms of speech and
press. On the other hand, the substituted standard provides safeguards to withstand
the charge of constitutional infirmity.”[228] (Emphasis supplied)

Thus, at present, we follow Miller v. California,[229] a United States case, as the latest

authority on the guidelines in characterizing obscenity.[230] The guidelines, which already
integrated the Roth standard on prurient interest, are as follows:

a.  Whether the ‘average person, applying contemporary standards’ would find the
work, taken as a whole, appeals to the prurient interest x x x;

b.  Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
c.  Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.[231]

The guidelines in Miller were adopted in Pita v. Court of Appeals[232] and Fernando v.

Court of Appeals.[233] It was also cited in the 2009 case of Soriano v.
Laguardia[234] wherein we stated:

Following the contextual lessons of the cited case of Miller v. California a patently
offensive utterance would come within the pale of the term obscenity should it appeal
to the prurient interest of an average listener applying contemporary standards.[235]

The tests or guidelines cited above were created and applied as demarcations between
protected expression or speech and obscene expressions. The distinction is crucial
because censorship or prohibition beyond these guidelines is a possible danger to the
protected freedom. For this reason, the courts, as “guard[ians] against any
impermissible infringement on the freedom of x x x expression,” “should be mindful that
no violation of such is freedom is allowable.”[236]

The scope of the cybersex provision is defective. Contrary to the minimum standards
evolved through jurisprudence, the law inexplicably reverts to the use of the term
“lascivious” to qualify the prohibited exhibition of one’s sexuality. This effectively
broadens state intrusion. It is an attempt to reset this court’s interpretation of the
constitutional guarantee of freedom of expression as it applies to sexual expression.

First, the current text does not refer to the standpoint of the “average person, applying
contemporary standards.” Rather it refers only to the law enforcer’s taste.

Second, there is no requirement that the “work depicts or describes in a patently

offensive way sexual conduct”[237] properly defined by law. Instead, it simply requires
“exhibition of sexual organs or sexual activity”[238] without reference to its impact on its
audience.

Third, there is no reference to a judgment of the “work taken as a whole”[239] and that

this work “lacks serious literary, artistic, political or scientific” value. Rather, it simply
needs to be “lascivious.”[240]

Roth v. United States[241] sheds light on the relationship between sex and obscenity, and
ultimately, cybersex as defined in Rep. Act No. 10175 and obscenity:

However, sex and obscenity are not synonymous. Obscene material is material which
deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. in
art, literature and scientific works, is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a great and mysterious
motive force in human life, has indisputably been a subject of absorbing interest to
mankind through the ages; it is one of the vital problems of human interest and public
concern.[242]

This court adopted these views in Gonzales v. Kalaw-Katigbak.[243]

VI (D)

Obscenity and Equal Protection

Some of the petitioners have raised potential violations of the equal protection clause in
relation to provisions relating to obscenity.

We are aware that certain kinds of offensive and obscene expression can be stricken
down as unconstitutional as it violates the equal protection clause. At this point, any
assessment of this argument must require the framework of adversarial positions arising
from actual facts. However, a survey of this argument may be necessary in order to
show that even the current text will not be able to survive this challenge.

Catharine MacKinnon suggests that there is a conflict between the application of

doctrines on free expression and the idea of equality between the sexes.[244] The issue of
obscenity, particularly pornography, is “legally framed as a vehicle for the expression of
ideas.”[245] Pornography, in essence, is treated as “only words” or expressions that are
distinct from what it does (from its acts).[246] As such, it is accorded the status of
preferred freedom, without regard to its harmful effects, that is perpetuating a social
reality that women are subordinate to men.[247] Hence, in protecting pornography as an
expression, the actions depicted become protected in the name of free expression.[248]

The issue of inequality had, in the past, been rendered irrelevant when faced with the
issue of obscenity or pornography.[249] This was not addressed by our jurisprudence on
obscenity.[250] The guidelines on determining what is obscene are premised on the idea
that men and women are equal and viewed equally — which basically pertains to the
male’s point of view of equality that women are inferior.[251]

In treating pornography, therefore, as protected expression, it is alleged that the State

protects only the men’s freedom of speech.[252] Simultaneously, however, women’s
freedom of speech is trampled upon.[253] Each time pornography is protected as free
expression, the male view of equality is perpetuated.[254] It becomes more and more
integrated into the consciousness of the society, silencing women, and rendering the
reality of female subordination so unremarkable that it becomes inconsequential and
even doubtful.[255]

Others do not agree with MacKinnon’s view. According to Edwin Baker, MacKinnon’s
theory “fails to recognize or provide for the primary value of or justification for
protecting expression.”[256] It fails to recognize the status of this freedom vis a
vis individual liberty, and why this freedom is fundamental.[257] More than through
arguments about ideas, people induce changes and transform their social and political
environments through expressive behavior.[258] Also, being able to participate in the
process of social and political change is “encompassed in the protected liberty.”[259]

Baker provides an example, thus:

Even expression that is received less as argument than “masturbation material”,

becomes a part of a cultural or behavioral “debate” about sexuality, about the nature of
human relations, and about pleasure and morality, as well as about the roles of men and
women. Historically, puritanical attempts to suppress sexually explicit materials appear
largely designed to shut down this cultural contestation in favor of a traditional practice
of keeping women in the private sphere. Opening up this cultural debate has in the past,
and can in the future, contribute to progressive change.[260]

Baker also points out that MacKinnon disregards that receivers of communicated
expressions are presumably autonomous agents who bear the responsibility for their
actions and are capable of moral choice.[261]

The expression should also be treated as independent of the act or offense. The
expression or “autonomous act of the speaker does not itself cause x x x harm. Rather,
the harm occurs through how the other person, presumably an autonomous agent
whom we normally treat as bearing the responsibility for her own acts, responds.”[262]

Baker agrees that expressions “[construct] the social reality in which [offenses] take
place.”[263] However, the expression itself is not the offense.[264]

Part of the reason to protect speech, or, more broadly, to protect liberty, is a
commitment to the view that people should be able to participate in constructing their
world, or to the belief that this popular participation provides the best way to move
toward a better world. The guarantee of liberty represents a deep faith in people and in
democracy.[265]

Punishing or even threatening to punish “lascivious exhibition of sexual organs or sexual

activity” through “the aid of a computer system” for “favor or consideration” does
nothing to alleviate the subordination of women. Rather, it facilitates the patriarchy. It
will allow control of what a woman does with her body in a society that will be
dominated by men or by the ideas that facilitate men’s hegemony.

The current provision prohibiting cybersex will reduce, through its chilling effect, the
kind of expression that can be the subject of mature discussion of our sexuality. The
public will, therefore, lose out on the exchanges relating to the various dimensions of
our relationships with others. The cybersex provisions stifles speech, aggravates
inequalities between genders, and will only succeed to encrust the views of the
powerful.
If freedom of expression is a means that allows the minority to be heard, then the
current version of this law fails miserably to protect it. It is overbroad and
unconstitutional and should not be allowed to exist within our constitutional order.

VI (E)

Child Pornography Different from Cybersex

It is apt to express some caution about how the parties confused child pornography
done through the internet and cybersex.

Section 4(c)(2), which pertains to child pornography, is different from the cybersex
provision. The provision on child pornography provides:

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.

In my view, this provision should survive constitutional challenge. Furthermore, it is not

raised in this case. The explicit reference to the Anti-Pornography Law or Republic Act
No. 9775 constitutes sufficient standard within which to base the application of the law
and which will allow it to survive a facial challenge for now.

VII

Traffic Data and Warrants

Section 12 of the Cybercrime Prevention Act of 2012 provides:

Real-Time Collection of Traffic Data — Law enforcement authorities, with due cause,
shall be authorized to collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing:

(1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed:

(2) that there are reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to the prevention
of, any such crimes; and

(3) that there are no other means readily available for obtaining such evidence.

VII (B)

Traffic Data and Expression

Traffic data, even as it is defined, still contains speech elements. When, how, to whom,
and how often messages are sent in the internet may nuance the content of the speech.
The message may be short (as in the 140-character limit of a tweet) but when it is
repeated often enough in the proper context, it may imply emphasis or desperation.
That a message used the email with a limited number of recipients with some blind
carbon copies (Bcc) characterizes the message when it is compared to the possibility of
actually putting the same content in a public social media post.

The intended or unintended interception of these parts of the message may be enough
deterrent for some to make use of the space provided in cyberspace. The parameters
are so loosely and broadly defined as “due cause” to be determined by “law enforcers”.
Given the pervasive nature of the internet, it can rightly be assumed by some users that
law enforcers will make use of this provision and, hence, will definitely chill their
expression.

Besides, the provision — insofar as it allows warrantless intrusion and interception by

law enforcers upon its own determination of due cause — does not specify the limits of
the technologies that they can use. Traffic data is related to and intimately bound to the
content of the packets of information sent from one user to the other or from one user
to another server. The provision is silent on the limits of the technologies and methods
that will be used by the law enforcer in tracking traffic data. This causes an
understandable apprehension on the part of those who make use of the same servers
but who are not the subject of the surveillance. Even those under surveillance — even
only with respect to the traffic data — have no assurances that the method of
interception will truly exclude the content of the message.
As observed by one author who sees the effect of general and roving searches on
freedom of expression:

Most broadly, freedom from random governmental monitoring—of both public spaces
and recorded transactions—might be an essential predicate for self definition and
development of the viewpoints that make democracy vibrant. This reason to be
concerned about virtual searches, while somewhat amorphous, is important enough to
have been remarked on by two Supreme Court justices. The first wrote, ‘walking and
strolling and wandering…have been in part responsible for giving our people the feeling
of independence and self-confidence, the feeling of creativity. These amenities have
dignified the right to dissent and have honoured the right to be nonconformists and the
right to defy submissiveness. They have encouraged lives of high spirits rather than
hushed suffocating silence.’ The second justice wrote:

Suppose that the local police in a particular jurisdiction were to decide to station a
police car at the entrance to the parking lot of a well-patronised bar from 5:30 p.m. to
7:30 p.m. every day…I would guess that the great majority of people…would say that
this is not a proper police function…There would be an uneasiness, and I think a justified
uneasiness, if those who patronised the bar felt that their names were being taken
down and filed for future reference…This ought not to be governmental function when
the facts are as extreme as I put them.[266]

It will be different if it will be in the context of a warrant from a court of law. Its
duration, scope, and targets can be more defined. The methods and technologies that
will be used can be more limited. There will thus be an assurance that the surveillance
will be reasonably surgical and provided on the basis of probable cause. Surveillance
under warrant, therefore, will not cause a chilling effect on internet expression.

In Blo Umpar Adiong v. COMELEC, [267] this court reiterated:

A statute is considered void for overbreadth when "it offends the constitutional
principle that a governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose.

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

ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia,
without a license, pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155,
60 S Ct. 146, the Court dealt with ordinances of four different municipalities which
either banned or imposed prior restraints upon the distribution of handbills. In holding
the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to
examine the effect of the challenged legislation. Mere legislative preferences or beliefs
respecting matters of public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as diminishes the exercise of rights
so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v
Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of society," but pointed out
that in each case "the power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960][268]

Section 12 of Rep. Act No. 10175 broadly authorizes law enforcement authorities “with
due cause” to intercept traffic data in real time. “Due cause” is a uniquely broad
standard different from the “probable cause” requirement in the constitution or the
parameters of “reasonable searches” in our jurisprudence.

The statute does not care to make use of labels of standards replete in our
jurisprudence. It foists upon the public a standard that will only be defined by those who
will execute the law. It therefore amounts to a carte blanche and roving authority whose
limits are not statutorily limited. Affecting as it does our fundamental rights to
expression, it therefore is clearly unconstitutional.

VII (C)

Traffic Data and Privacy Rights

Traffic data is defined by the second paragraph of Section 12 of Rep. Act No. 10175,
thus:

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

As worded, the collection, aggregation, analysis, storage and dissemination of these

types of data may implicate both the originator’s and the recipient’s rights to privacy.

That these data move through privately owned networks, administered by private
internet service providers, and run through privately owned internet exchange nodes is
no moment. We will have to decide in some future case (where the facts and
controversy would be clearer and more concrete) the nature and levels of intrusion that
would be determined as a “reasonable search” and the uses of such data that would be
reasonable “seizures” within the meaning of Article III, Section 2 of the Constitution. In
such cases, we will have to delimit the privacy interests in the datum in question as well
as in the data that may be collaterally acquired.

There are many types of “searches”.

There are instances when the observation is done only for purposes of surveillance. In
these types of “searches,” the law enforcers may not yet have a specific criminal act in
mind that has already been committed. Perhaps, these are instances when government
will just want to have access to prevent the occurrence of cyber attacks of some kind.
Surveillance can be general, i.e., one where there is no specific actor being observed.
Some general surveillance may also be suspicionless. This means that there is no
concrete indication that there will be some perpetrator. It is the surveillance itself that is
the preventive action to deter any wrongdoing. It can also be specific, i.e., that there is
already an actor or a specific group or classification of actors that is of interest to the
government.

Then, there are the “searches” which are more properly called investigations. That is,
that there is already a crime that has been committed or certain to be committed and
law enforcers will want to find evidence to support a case. Then there is the “search”
that simply enables law enforcers to enter a physical or virtual space in order to retrieve
and preserve evidence already known to law enforcers.

For the moment, it is enough to take note that almost all of our jurisprudence in this
regard has emerged from physical intrusions into personal spaces.

In In the Matter of the Petition for the Writ of the Petition for Issuance of Writ of Habeas
Corpus of Camilo L. Sabio v. Gordon,[269] this court explained the determination of a
violation of the right of privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two
guarantees that explicitly create zones of privacy. It highlights a person's "right to be let
alone" or the "right to determine what, how much, to whom and when information
about himself shall be disclosed." Section 2 guarantees "the right of the people to be
secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose." Section 3 renders inviolable the
"privacy of communication and correspondence" and further cautions that "any
evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if so, whether
that expectation has been violated by unreasonable government intrusion.[270]

“Reasonable expectations of privacy,” however, may not be the only criterion that may
be useful in situations arising from internet use. Some have suggested that in view of
the infrastructure or the permeability of the networks created virtually and its
cosmopolitarian or cross-cultural character, it may be difficult to identify what may be
the normative understanding of all the participants with respect to privacy.[271] It has
been suggested that privacy may best be understood in its phases, i.e., a core
inalienable category where personal information is within the control of the individual,
the right to initial disclosure, and the right for further dissemination.[272]

In People v. Chua Ho San,[273] this court made an explicit connection between the right to
privacy and the right against unreasonable searches and seizures. Even then, based on
the facts there alleged, a search was described as a “State intrusion to a person’s body,
personal effects or residence”:

Enshrined in the Constitution is the inviolable right to privacy of home and person. It
explicitly ordains that people have the right to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and
for any purpose. Inseparable, and not merely corollary or incidental to said right and
equally hallowed in and by the Constitution, is the exclusionary principle which decrees
that any evidence obtained in violation of said right is inadmissible for any purpose in
any proceeding.

The Constitutional proscription against unreasonable searches and seizures does not, of
course, forestall reasonable searches and seizure. What constitutes a reasonable or
even an unreasonable search in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. Verily, the rule is, the
Constitution bars State intrusions to a person's body, personal effects or residence
except if conducted by virtue of a valid search warrant issued in compliance with the
procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise
such search and seizure become ‘unreasonable’ within the meaning of the
aforementioned constitutional provision.”[274]

In the more recent case of Valeroso v. People,[275] this court held that:

Unreasonable searches and seizures are the menace against which the constitutional
guarantees afford full protection. While the power to search and seize may at times be
necessary for public welfare, still it may be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for no enforcement of any statute
is of sufficient importance to justify indifference to the basic principles of government.
Those who are supposed to enforce the law are not justified in disregarding the rights of
an individual in the name of order. Order is too high a price to pay for the loss of liberty.
[276]

Very little consideration, if any, has been taken of the speed of information transfers
and the ephemeral character of information exchanged in the internet.

I concede that the general rule is that in order for a search to be considered reasonable,
a warrant must be obtained. In Prudente v. Dayrit:[277]

For a valid search warrant to issue, there must be probable cause, which is to be
determined personally by the judge, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. The probable cause must be in
connection with one specific offense and the judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and
under oath, the complainant and any witness he may produce, on facts personally
known to them and attach to the record their sworn statements together with any
affidavits submitted.

The "probable cause" for a valid search warrant, has been defined "as such facts and
circumstances which would lead a reasonably discreet arid prudent man to believe that
an offense has been committed, and that objects sought in connection with the offense
are in the place sought to be searched." This probable cause must be shown to be
within the personal knowledge of the complainant or the witnesses he may produce and
not based on mere hearsay.[278] (Citations omitted)

However, not all searches without a warrant are per se invalid. Jurisprudence is replete
with the exceptions to the general rule.

In People v. Rodrigueza,[279] this court reiterated the enumeration of the instances when

a search and seizure may be conducted reasonably without the necessity of a search
warrant:

As provided in the present Constitution, a search, to be valid, must generally be

authorized by a search warrant duly issued by the proper government authority. True, in
some instances, this Court has allowed government authorities to conduct searches and
seizures even without a search warrant. Thus, when the owner of the premises waives
his right against such incursion; when the search is incidental to a lawful arrest; when it
is made on vessels and aircraft for violation of customs laws; when it is made on
automobiles for the purpose of preventing violations of smuggling or immigration laws;
when it involves prohibited articles in plain view; or in cases of inspection of buildings
and other premises for the enforcement of fire, sanitary and building regulations, a
search may be validly made even without a search warrant.[280] (Citations omitted)

In specific instances involving computer data, there may be analogies with searches of
moving or movable vehicles. People v. Bagista[281] is one of many that explains this
exception:

The constitutional proscription against warrantless searches and seizures admits of

certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search
had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.

With regard to the search of moving vehicles, this had been justified on the ground that
the mobility of motor vehicles makes it possible for the vehicle to be searched to move
out of the locality or jurisdiction in which the warrant must be sought.

This in no way, however, gives the police officers unlimited discretion to conduct
warrantless searches of automobiles in the absence of probable cause. When a vehicle
is stopped and subjected to an extensive search, such a warrantless search has been
held to be valid only as long as the officers conducting the search have reasonable or
probable cause to believe before the search that they will find the instrumentality or
evidence pertaining to a crime, in the vehicle to be searched.[282] (Citations omitted)

Then again in People v. Balingan,[283] this court held that there was a valid search and
seizure, even if done in a moving vehicle. It gave the rationale for this holding:

We also find no merit in appellant's argument that the marijuana flowering tops should
be excluded as evidence, they being the products of an alleged illegal warrantless
search. The search and seizure in the case at bench happened in a moving, public
vehicle. In the recent case of People vs. Lo Ho Wing, 193 SCRA 122 (1991), this Court
gave its approval to a warrantless search done on a taxicab which yielded the illegal
drug commonly known as shabu. In that case, we raciocinated:

xxxx

The contentions are without writ. As correctly averred by appellee, that search and
seizure must be supported by a valid warrant is not an absolute rule. There are at least
three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs.
Sandiganbayan, these are: [1] a search incidental to an arrest, [2] a search of a moving
vehicle, and [3] seizure of evidence in plain view (emphasis supplied). The circumstances
of the case clearly show that the search in question was made as regards a moving
vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant
and his co-accused.

In this connection, We cite with approval the averment of the Solicitor General, as
contained in the appellee's brief, that the rules governing search and seizure have over
the years been steadily liberalized whenever a moving vehicle is the object of the search
on the basis of practicality. This is so considering that before a warrant could be
obtained, the place, things and persons to be searched must be described to the
satisfaction of the issuing judge — a requirement which borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport contraband
from one place to another with impunity. We might add that a warrantless search of a
moving vehicle is justified on the ground that "it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought."[284]

Another instance of a reasonable and valid warrantless search which can be used
analogously for facts arising from internet or computer use would be in instances where
the existence of the crime has been categorically acknowledged. People v. De Gracia,
[285]
 explains:

The next question that may be asked is whether or not there was a valid search and
seizure in this case. While the matter has not been squarely put in issue, we deem it our
bounden duty, in light of advertence thereto by the parties, to delve into the legality of
the warrantless search conducted by the raiding team, considering the gravity of the
offense for which herein appellant stands to be convicted and the penalty sought to be
imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not
armed with a search warrant at that time. The raid was actually precipitated by
intelligence reports that said office was being used as headquarters by the RAM. Prior to
the raid, there was a surveillance conducted on the premises wherein the surveillance
team was fired at by a group of men coming from the Eurocar building. When the
military operatives raided the place, the occupants thereof refused to open the door
despite requests for them to do so, thereby compelling the former to break into the
office. The Eurocar Sales Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives and ammunition. It is
primarily and solely engaged in the sale of automobiles. The presence of an unusual
quantity of high-powered firearms and explosives could not be justifiably or even
colorably explained. In addition, there was general chaos and disorder at that time
because of simultaneous and intense firing within the vicinity of the office and in the
nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the
surrounding areas were obviously closed and, for that matter, the building and houses
therein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case
falls under one of the exceptions to the prohibition against a warrantless search. In the
first place, the military operatives, taking into account the facts obtaining in this case,
had reasonable ground to believe that a crime was being committed. There was
consequently more than sufficient probable cause to warrant their action. Furthermore,
under the situation then prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. The trial judge himself manifested that on
December 5, 1989 when the raid was conducted, his court was closed. Under such
urgency and exigency of the moment, a search warrant could lawfully be dispensed
with.[286]

But the internet has created other dangers to privacy which may not be present in the
usual physical spaces that have been the subject of searches and seizures in the past.
Commercial owners of servers and information technologies as well as some
governments have collected data without the knowledge of the users of the internet. It
may be that our Data Privacy Law[287] may be sufficient.

Absent an actual case therefore, I am not prepared to declare Section 12 of Rep. Act
10175 as unconstitutional on the basis of Section 2 or Section 3(a) of Article III of the
Constitution. My vote only extends to its declaration of unconstitutionality because the
unlimited breadth of discretion given to law enforcers to acquire traffic data for “due
cause” chills expression in the internet. For now, it should be stricken down because it
violates Article III, Section 4 of the Constitution.

VIII

Limitations on Commercial Speech

are Constitutional

I dissent from the majority in their holding that Section 4(c)(3) of Rep. Act No. 10175 is
unconstitutional. This provides:

“(3) Unsolicited Commercial Communications. – The transmission of commercial

electronic communication with the use of computer system which seek to advertise,
sell, or offer for sale product and services are prohibited unless:

“(i) there is prior affirmative consent from the recipient; or

“(ii) the primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

“(iii) the following conditions are present:

“(aa) the commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt
out) from the same source;

“(bb) the commercial electronic communication does not purposely disguise the source
of the electronic message; and
“(cc) the commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.”

On the origins of this provision, the Senate Journal’s reference to the deliberations on
the Cybercrime Law[288] states:

Unsolicited Commercial Communications in Section 4(C)(3)

This offense is not included in the Budapest Convention. Although there is an ongoing
concern against receiving spams or unsolicited commercial e-mails sent in bulk through
the computer or telecommunication network, Section 4(C)(3) is too general in the sense
it can include a simple email from one person to another person, wherein the sender
offers to sell his house or car to the receiver. Therefore, to avoid such acts of injustice,
Section 4(C)(3) should be narrowed.

Senator Angara accepted the recommendation as he clarified that what the bill covers is
unsolicited emails in bulk.[289]

VIII (B)

Section 4(c)(3) Has No Chilling Effect

on Speech of Lower Value

Section 4(c)(3) of Rep. Act No. 10175 on unsolicited commercial communication has no
chilling effect. It is narrowly drawn. Absent an actual case, it should not be declared as
unconstitutional simply on the basis of its provisions. I dissent, therefore, in the
majority’s holding that it is unconstitutional.

Commercial speech merited attention in 1996 in Iglesia ni Cristo v. Court of Appeals.

[290]
 In Iglesia ni Cristo, this court stated that commercial speech is “low value” speech to
which the clear and present danger test is not applicable.[291]

In 2007, Chief Justice Reynato Puno had the opportunity to expound on the treatment
of and the protection afforded to commercial speech in his concurring and separate
opinion in Pharmaceutical and Health Care Association of the Philippines v. Duque III.
[292]
 Writing “to elucidate another reason why the absolute ban on the advertising and
promotion of breastmilk substitutes x x x should be struck down,”[293] he explained the
concept of commercial speech and traced the development of United States
jurisprudence on commercial speech:

The advertising and promotion of breastmilk substitutes properly falls within the ambit
of the term commercial speech-that is, speech that proposes an economic transaction.
This is a separate category of speech which is not accorded the same level of protection
as that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.

A look at the development of jurisprudence on the subject would show us that initially
and for many years, the United States Supreme Court took the view that commercial
speech is not protected by the First Amendment. It fastened itself to the view that the
broad powers of government to regulate commerce reasonably includes the power to
regulate speech concerning articles of commerce.

This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, the U.S. Supreme court struck down a law prohibiting the
advertising of prices for prescription drugs. It held that price information was important
to consumers, and that the First Amendment protects the "right to receive information"
as well as the right to speak. It ruled that consumers have a strong First Amendment
interest in the free flow of information about goods and services available in the
marketplace and that any state regulation must support a substantial interest.

Central Hudson Gas & Electric v. Public Service Commission is the watershed case that
established the primary test for evaluating the constitutionality of commercial speech
regulations. In this landmark decision, the U.S. Supreme Court held that the regulation
issued by the Public Service Commission of the State of New York, which reaches all
promotional advertising regardless of the impact of the touted service on overall energy
use, is more extensive than necessary to further the state's interest in energy
conservation. In addition, it ruled that there must be a showing that a more limited
restriction on the content of promotional advertising would not adequately serve the
interest of the State. In applying the First Amendment, the U.S. Court rejected the highly
paternalistic view that the government has complete power to suppress or regulate
commercial speech.

Central Hudson provides a four-part analysis for evaluating the validity of regulations of

commercial speech. To begin with, the commercial speech must "concern lawful activity
and not be misleading" if it is to be protected under the First Amendment. Next, the
asserted governmental interest must be substantial. If both of these requirements are
met, it must next be determined whether the state regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary
to serve that interest.[294] (Citations omitted)

In his separate concurring opinion in Chavez v. Gonzales,[295] Justice Antonio Carpio,

citing Pharmaceutical and Health Care Association of the Philippines, stated that “false
or misleading advertisement” is among the instances in which “expression may be
subject to prior restraint,”[296] thus:
The exceptions, when expression may be subject to prior restraint, apply in this
jurisdiction to only four categories of expression, namely: pornography, false or
misleading advertisement, advocacy of imminent lawless action, and danger to national
security. All other expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, “[T]he First Amendment
(Free Speech Clause), subject only to narrow and well understood exceptions, does not
countenance governmental control over the content of messages expressed by private
individuals.”[297] (Citations omitted)

Further in his separate concurring opinion, Justice Carpio reiterates this point. Making
reference to the norm in the United States, he states that “false or deceptive
commercial speech is categorized as unprotected expression that may be subject to
prior restraint”.[298] Conformably, he also cited Pharmaceutical and Health Care
Association of the Philippines and its having “upheld the constitutionality of Section 6 of
the Milk Code requiring the submission to a government screening committee of
advertising materials for infant formula milk to prevent false or deceptive claims to the
public.”

In his twelfth footnote, Justice Carpio made reference to the state interest, articulated
in the Constitution itself, in regulating advertisements:

Another fundamental ground for regulating false or misleading advertisement is Section

11(2), Article XVI of the Constitution which states : “The advertising industry is
impressed with public interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare.”[299]

As acknowledged by the majority, “[c]ommercial speech is a separate category of

speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to
protection.”[300]

I agree that the basis of protection accorded to commercial speech rests in its
informative character: “[t]he First Amendment's concern for commercial speech is
based on the informational function of advertising”:[301]

Commercial expression not only serves the economic interest of the speaker, but also
assists consumers and furthers the societal interest in the fullest possible [447 U.S. 557,
562] dissemination of information. In applying the First Amendment to this area, we
have rejected the "highly paternalistic" view that government has complete power to
suppress or regulate commercial speech. "[P]eople will perceive their own best interest
if only they are well enough informed, and . . . the best means to that end is to open the
channels of communication, rather than to close them. . . ." Id., at 770; see Linmark
Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising
communicates only an incomplete version of the relevant facts, the First Amendment
presumes that some accurate information is better than no information at all. Bates v.
State Bar of Arizona, supra, at 374.[302]

Since it is valuable only to the extent of its ability to inform, advertising is not at par with
other forms of expression such as political or religious speech. The other forms of
speech are indispensable to the democratic and republican mooring of the state
whereby the sovereignty residing in the people is best and most effectively exercised
through free expression. Business organizations are not among the sovereign people.
While business organizations, as juridical persons, are granted by law a capacity for
rights and obligations, they do not count themselves as among those upon
whom human rights are vested.

The distinction between commercial speech and other forms of speech is, thus, self-
evident. As the United States Supreme Court noted in a discursive footnote in Virginia
Pharmacy Board:[303]

In concluding that commercial speech enjoys First Amendment protection, we have not
held that it is wholly undifferentiable from other forms. There are commonsense
differences between speech that does "no more than propose a commercial
transaction," Pittsburgh Press Co., v. Human Relations Comm'n, 413 U.S., at 385, and
other varieties. Even if the differences do not justify the conclusion that commercial
speech is valueless, and thus subject to complete suppression by the State, they
nonetheless suggest that a different degree of protection is necessary to insure that
the flow of truthful and legitimate commercial information is unimpaired. The truth of
commercial speech, for example, may be more easily verifiable by its disseminator than,
let us say, news reporting or political commentary, in that ordinarily the advertiser seeks
to disseminate information about a specific product or service that he himself provides
and presumably knows more about than anyone else. Also, commercial speech may be
more durable than other kinds. Since advertising is the sine qua non of commercial
profits, there is little likelihood of its being chilled by proper regulation and forgone
entirely.

Attributes such as these, the greater objectivity and hardiness of commercial

speech, may make it less necessary to tolerate inaccurate statements for fear of
silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
with Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it
appropriate to require that a commercial message appear in such a form, or include
such additional information, warnings, and disclaimers, as are necessary to prevent its
being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974),
with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom.
Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf. United States v. 95 Barrels of
Vinegar, 265 U.S. 438, 443 (1924) ("It is not difficult to choose statements, designs and
devices which will not deceive"). They may also make inapplicable the prohibition
against prior restraints. Compare New York Times Co. v. United States, 403 U.S.
713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v.
Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735,
739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957).[304] (Emphasis supplied)

It follows, therefore, that the state may validly suppress commercial speech that fails to
express truthful and accurate information. As emphasized in Central Hudson:[305]

The First Amendment's concern for commercial speech is based on the informational
function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765,
783 (1978). Consequently, there can be no constitutional objection to the suppression
of commercial messages that do not accurately inform the public about lawful
activity. The government may ban forms of communication more likely to deceive the
public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State
Bar Assn., supra, at 464-465, or [447 U.S. 557, 564] commercial speech related to illegal
activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973).

If the communication is neither misleading nor related to unlawful activity, the

government's power is more circumscribed. The State must assert a substantial interest
to be achieved by restrictions on commercial speech. Moreover, the regulatory
technique must be in proportion to that interest. The limitation on expression must be
designed carefully to achieve the State's goal. Compliance with this requirement may be
measured by two criteria. First, the restriction must directly advance the state interest
involved; the regulation may not be sustained if it provides only ineffective or remote
support for the government's purpose. Second, if the governmental interest could be
served as well by a more limited restriction on commercial speech, the excessive
restrictions cannot survive.[306]

Section 4(c) (3) of the Rep. Act No. 10175 refers only to commercial speech since it
regulates communication that advertises or sells products or services. These
communications, in turn, proposes only commercial or economic transactions. Thus, the
parameters for the regulation of commercial speech as articulated in the preceding
discussions are squarely applicable.

Definitely, there is no occasion for Section 4(c)(3) to chill speech of fundamental value.
Absent an actual case, judicial review should not go past that test. Hence, this provision
should not be declared unconstitutional.

VIII (C)

The Provision has a Valid Purpose

As noted by the majority, Section 4(c)(3) refers to what, in contemporary language, has
been referred to as “spam”. The origin of the term is explained as follows:
The term “spam,” as applied to unsolicited commercial email and related undesirable
online communication, is derived from a popular Python sketch set in a cafe that
includes the canned meat product SPAM in almost every dish. As the waitress describes
the menu with increasing usage of the word “spam,” a group of Vikings in the cafe start
singing, “Spam, spam, spam, spam, spam,” drowning out all other communication with
their irrelevant repetitive song.[307]

Spam is typified by its being unsolicited and repetitive as well as by its tendency to
drown out other communication. Compared with other forms of advertising, spam has
been distinguished as a negative externality. This means that it imposes upon a party a
cost despite such party’s not having chosen to engage in any activity that engenders
such cost. Thus:

How does spam differ from legitimate advertising? If you enjoy watching network
television, using a social networking site, or checking stock quotes online, you know that
you will be subjected to advertisements, many of which you may find relevant or even
annoying. Google, Yahoo!, Microsoft, Facebook, and others provide valuable consumer
services, such as search, news, and email, supported entirely by advertising revenue.
While people may resent advertising, most consumers accept that advertising is a price
they pay for access to content and services that they value. By contrast, unsolicited
commercial email imposes a negative externality on consumers without any market-
mediated benefit, and without the opportunity to opt-out.[308]

The noxious effects of spam are clearly demonstrable. Any email user knows the
annoyance of having to sift through several spam messages in a seemingly never ending
quest to weed them out. Moreover, while certain spam messages are readily
identifiable, a significant number are designed (or disguised) in such a way as to make a
user think that they contain legitimate content.

For instance, spam emails are given titles or headings like, “Please update your
information,” “Conference Invitation,” “Please Confirm,” “Alert,” “Hello My Dearest,”
and “Unclaimed Check.” Spam messages also make reference to current events and civic
causes.

Similarly, spam messages disguise themselves as coming from legitimate sources by

using subtle or inconspicuous alterations in sender information. Thus, a letter “i,” which
appears in the middle of a word, is replaced with the number “1,” a letter “o” may be
replaced with the number zero; a spam message may be made to appear to come from
the legitimate online financial intermediary PayPal, when in fact, the sending address is
“paypol.com”. At times, entirely false names are used, making spam messages appear to
come from relatively unfamiliar but ostensibly legitimate senders such as low-key
government agencies or civic organizations. As noted by Cisco Systems: “The content in
the message looks and sounds much more legitimate and professional than it used to.
Spam often closely mimics legitimate senders' messages—not just in style but by
‘spoofing’ the sender information, making it look like it comes from a reputable
sender.”[309]

The damage cost by spamming is manifest in calculable financial and economic costs
and not just in the nebulous vexation it causes users. IT research firm Nuclear Research
found that as far back as eleven (11) years ago, in 2003, an average employee receives
13.3 spam messages a day. Moreover, a person may spend as much as ninety (90)
minutes a day managing spam. This translates to 1.4% lost productivity per person per
year and an average cost of US$ 874 per employee per year.[310] A 2012 study also noted
that some US$20 billion is spent annually to fend off unwanted email with US$6 billion
spent annually on anti-spam software.[311]

Apart from being associated with the vexation of users and costs undermining
productivity and efficiency, spamming is also a means for actually attacking IT systems.
The 2000 attack of the “I Love You” Worm, which was earlier noted in this opinion, was
committed through means of email messages sent out to a multitude of users. While
defensive technologies against spamming have been developed (e.g., IP blacklisting,
crowd sourcing, and machine learning), spammers have likewise improved on their
mechanisms. The present situation is thus indicative of escalation, an arms race playing
out in cyberspace. As is typical of escalation, the capacity of spammers to inflict damage
has significantly increased. In 2003, spamming botnets began to be used, thereby
enabling the spread of malware (i.e., malicious software):

Blacklists gradually made it impossible for spammers to use their own servers (or others’
open relay servers) with fixed IP addresses. Spammers responded with a “Whack-a-
Mole” strategy, popping up with a new computer IP address every time the old one got
shut down. This strategy was observed and named as early as 1996, and eventually
became considerably cheaper with another major innovation in spam: the botnet.

A botnet is a network of “zombie” computers infected by a piece of malicious software

(or “malware”) designed to enslave them to a master computer. The malware gets
installed in a variety of ways, such as when a user clicks on an ad promising “free
ringtones.” The infected computers are organized in a militaristic hierarchy, where early
zombies try to infect additional downstream computers and become middle managers
who transmit commands from the central “command and control” servers down to the
frontline computers

The first spamming botnets appeared in 2003. Static blacklists are powerless against
botnets. In a botnet, spam emails originate from tens of thousands of IP addresses that
are constantly changing because most individual consumers have their IP addresses
dynamically allocated by Dynamic Host Control Protocol (DHCP). Dynamic blacklisting
approaches have since been developed; Stone-Gross, Holz, Stringhini, and Vigna (2011)
document that 90 percent of zombie computers are blacklisted before the end of each
day. However, if the cable company assignsa zombie computer a new IP address each
day, that computer gets a fresh start and can once again successfully send out spam.[312]

Spam’s capacity to deceive recipients through false and misleading headers, content,
and senders likewise makes it a viable means for phishing and identity theft, thereby
enabling spammers to gain control of user accounts (e.g., online banking, social
networking). This is demonstrated by the case of Jeffrey Brett Goodin, the first person to
be convicted under the United States’ Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (more briefly and popularly known as the CAN-
SPAM Act). Goodin was found guilty of sending emails to users of America Online (AOL).
Posing as someone from AOL’s billing department, his emails directed users to go to
websites operated by Goodin himself. On the pretense that information was necessary
to prevent the termination of their AOL services, these websites prompted users to
supply personal and credit card information. This, in turn, enabled Goodin to engage in
fraudulent transactions.[313]

There can be no more direct way of curtailing spamming and its deleterious effects than
by prohibiting the “transmission of commercial electronic communication with the use
of computer system which seek to advertise, sell, or offer for sale products and
services”,[314] unless falling under any of the enumerated exceptions, as Section 4(c)(3)
does. The preceding discussion has clearly demonstrated the extent to which spamming
engenders or otherwise facilitates vexation, intrusions, larceny, deception, violence, and
economic damage. Spamming represents a hazard, and its riddance will entail the
concomitant curtailment of the perils it entails.

VIII (D)

The Provision is Narrowly Drawn

Section 4(c)(3) is phrased in a manner that is sufficiently narrow. It is not a blanket

prohibition of the “transmission of commercial electronic communication with the use
of computer system which seek to advertise, sell, or offer for sale products and
services.”[315] Quite the contrary, it recognizes instances in which commercial
information may be validly disseminated electronically. It provides multiple instances in
which such communications are not prohibited.

First, when there is prior affirmative consent from the recipient.

Second, when it is primarily in the nature of a service and/or administrative

announcement sent by a service provider to its clients.

Third, when there is a means to opt out of receiving such communication, such
communication not being deceptive in that it purposely disguises its source or does
not purposely contain misleading information.
The first exception, far from curtailing free commercial expression, actually recognizes
it. It vests upon the parties to a communication, albeit with emphasis on the receiver,
the freedom to will for themselves if the transmission of communication shall be
facilitated.

The second exception recognizes that there are instances when a service provider must
necessarily disseminate information (with or without the recipient’s consent) to ensure
the effective functioning and client’s use of its services.

The third exception directly deals with intentionally deceptive spam that intends to
ensnare users by not allowing them to opt out of receiving messages.

Section 4(c)(3) merely provides parameters to ensure that the dissemination of

commercial information online is done in a manner that is not injurious to others. For as
long as they are not vexatious (i.e., prior affirmative consent and opt-out requirement)
or misleading, to the extent that they are not intrusive on their recipients, they may
continue to be validly disseminated.

The opt-out provision provides the balance. Others may have as much right to speak
about their products and exaggerate as they offer to make a commercial transaction.
But that right is not an entitlement to vex others by their repetitive and insistent efforts
to insist that others listen even if the customer has already declined. Commercial speech
is protected only until it ceases to inform.

A FINAL NOTE
“Section 4. No law shall be passed abridging the freedom of speech, of expression or of
the press x x x”

Rather than act with tempered but decisive vigilance for the protection of these rights,
we have precariously perched the freedoms of our people on faith that those who are
powerful and influential will not use the overly broad provisions that prohibit libel,
cyber libel, and cybersex against their interests. We have exposed those that rely on our
succor to the perils of retaliation because we stayed our hand in declaring libel
provisions as unconstitutional. By diminishing the carefully drawn jurisprudential
boundaries of what is obscene and what is not, we have allowed the state to unleash
the dominant patriarchal notions of “lascivious” to police sexual expression.

On the other hand, the majority has opted to strike down what appears to be narrowly
tailored protections against unsolicited commercial communication through cyberspace.
I decline to endow this kind of speech — the commercial and the corporate — with
more value. The balance struck by the majority in this case weighs more heavily towards
those who have more resources and are more powerful. We have put the balance in
favor of what is in the hegemony. Legitimate dissent will be endangered.
That, to me, is not what the Constitution says.

The Constitution protects expression. It affirms dissent. The Constitution valorizes

messages and memes at the margins of our society. The Constitution also insists that we
will cease to become a democratic society when we diminish our tolerance for the raw
and dramatically delivered idea, the uncouth defamatory remark, and the occasional
lascivious representations of ourselves.

What may seem odd to the majority may perhaps be the very kernel that unlocks our
collective creativity.

ACCORDINGLY, I vote to declare as unconstitutional for being overbroad and violative

of Article III, Section 4 of the Constitution the following provisions of Republic Act No.
10175 or the Cybercrime Prevention Act of 2012:

(a) The entire Section 19 or the “take down” provision;

(b) The entire Section 4(c)(4) on cyber libel as well as Articles 353, 354, and 355 on libel
of the Revised Penal Code;
(c) The entire Section 4(c)(1) on cybersex;
(d) Section 5 as it relates to Sections 4(c)(1) and 4(c)(4);
(e) Section 6 as it increases the penalties to Sections 4(c)(1) and 4(c)(4);
(f) Section 7 as it allows impermissibly countless prosecution of Sections 4(c)(1) and
4(c)(4); and
(g) Section 12 on warrantless real-time traffic data surveillance.

I dissent with the majority in its finding that Section 4(c)(3) on Unsolicited Commercial
Advertising is unconstitutional.

I vote to dismiss the rest of the constitutional challenges against the other provisions
in Republic Act No. 10175 as raised in the consolidated petitions for not being
justiciable in the absence of an actual case or controversy.

[1]
 Rep. Act No. 10175, sec. 1. The law was the product of Senate Bill No. 2796 and House
Bill No. 5808.

[2]
 Consti., art. VIII, sec. 1 which provides the following:

Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of Government.

[3]
 Consti., art. VIII, sec. 1.

[4]
 Consti., art. VIII, sec. 1.

[5]
 Tanada v. Cuenco, G.R. No. L-10520, 100 Phil. 1101 (1957) [Per J. Concepcion, En
Banc].

[6]
 Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil.
806, 809 (1955) [Per J. Bengzon, En Banc].

[7]
 Levy Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993, 224
SCRA 236, 242 [Per CJ Davide, Jr., En Banc].

[8]
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc].

[9]
 Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc], citing
Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91 (2007) [Per J.
Tinga, Second Division].

[10]
 499 Phil. 281 (2005) [Per C.J. Panganiban, En Banc].

[11]
 Id. at 304-305.

[12]
 G.R. No. 187883, June 16, 2009, 589 SCRA 356 [Per C.J. Puno, En Banc].

[13]
 Id. at 357-358.

[14]
 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

[15]
 Id. at 158.

[16]
 G.R. No. 204603, September 24, 2013 [Per J. Perlas-Bernabe, En Banc].

[17]
 Id.

[18]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc].

[19]
 Id. at 179.

[20]
 D. MACLEAN, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[21]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[22]
 'Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[23]
 Id.

[24]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[25]
 Id.

[26]
 Id. at 3.

[27]
 Id.

[28]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 282
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[29]
 ‘Brief History of the Internet’, p. 4 <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[30]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 278
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[31]
 Id.
[32]
 Id. at 279.

[33]
 Id.

[34]
 Id. Government or state-run.

[35]
 Id.

[36]
 Id.

[37]
 Id. at 282.

[38]
 Id. at 280.

[39]
 Some call this “generativity”, i.e. “a system’s capacity to produce unanticipated
change through unfiltered contributions from broad and varied audiences.” J. L.
ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 70 (2008).

[40]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

[41]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[42]
 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[43]
 ‘‘Measuring the Information Society 2012’, International Telecommunication Union,
2012, Geneva, Switzerland, 6-7 <http://www.itu.int/en/ITU-
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited
October 16, 2013). The International Telecommunication Union (ITU) is the United
Nations’ specialized agency for information and communication technologies (ICTs).

[44]
 Id. at 10.

[45]
 “In the ‘Internet of things,’ objects such as household appliances, vehicles, power and
water meters, medicines or even personal belongings such as clothes, will be capable of
being assigned an IP address, and of identifying themselves and communicating using
technology such as RFID and NFC.” ‘Comprehensive Study on Cybercrime’ prepared by
United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on
Cybercrime, February 2013, 2
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[46]
 Id.

[47]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 2
<http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/Documents/
cyber-crime.pdf> (visited October 16, 2013).

[48]
 The Global Internet User Survey is “[a] worldwide survey of more than 10,000
Internet users in 20 countries conducted by the Internet Society revealed attitudes
towards the Internet and user behavior online. The Global Internet User Survey is one of
the broadest surveys of Internet user attitudes on key issues facing the Internet. This
year's survey covered areas such as how users manage personal information online,
attitudes toward the Internet and human rights, censorship, and the potential for the
Internet to address issues such as economic development and education.” The results
are available at <https://www.Internetsociety.org/news/global-Internet-user-survey-
reveals-attitudes-usage-and-behavior> (visited October 16, 2013). See also ‘Global
Internet User Survey 2012’
<https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-
20121120_0.pdf> (visited October 16, 2013).

[49]
 ‘Measuring the Information Society 2012’, International Telecommunication Union,
2012, Geneva, Switzerland, 7 <http://www.itu.int/en/ITU-
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited
October 16, 2013).

[50]
 Id.

[51]
 Id. at 10.

[52]
 ‘Global Internet User Survey 2012’
<https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-
20121120_0.pdf> (visited October 16, 2013).

[53]
 Id.

[54]
 ‘The State of Broadband 2012: Achieving Digital Inclusion for All’, Report prepared by
the Broadband Commission for Digital Development, September 2012, 23
<http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited
October 16, 2013).
[55]
 As cited by the Broadband Commission for Digital Development in ‘The State of
Broadband 2012: Achieving Digital Inclusion for All’. The Broadband Commission was set
up by the ITU and the United Nations Educational, Scientific and Cultural Organization
(UNESCO) pursuant to the Millennium Development Goals (MDGs), 78
<http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited
October 16, 2013).

[56]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 96-97 (2008).

[57]
 “The term is said to have been coined in 1991 by D. James Bidzos, the then-president
of RSA Data Security, when he said that the government’s digital signature standard
provided ‘no assurance that foreign governments cannot break the system, running the
risk of a digital Pearl Harbor.’ x x x The term has since become prominent in public
debate, being employed most notably by former member of the National Security
Council Richard A. Clarke.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO
STOP IT 97 and 275 (2008).

[58]
 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[59]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[60]
 Id. at 6-7.

[61]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 3 (visited October 16, 2013), citing National insecurity, Information
Age, January 26, 2011 and Stuxnet was about what happened next, FT.com, February 16,
2011.

[62]
 “In 1994, the United Nations Manual on the Prevention and Control of Computer
Related Crime noted that fraud by computer manipulation; computer forgery; damage
to or modifications of computer data or programs; unauthorized access to computer
systems and service; and unauthorized reproduction of legally protected computer
programs were common types of computer crime.” ‘Comprehensive Study on
Cybercrime’ prepared by United Nations Office on Drugs and Crime for the
Intergovernmental Expert Group on Cybercrime, February 2013, 5 (visited October 16,
2013).

[63]
 ‘Love bug hacker is Pandacan man, 23’
<http://www.philstar.com/networks/83717/love-bug-hacker-pandacan-man-23>
(visited October 16, 2013).

[64]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 2 (visited October 16, 2013).

[65]
 Id. at 2, citing Cyber attacks: from Facebook to nuclear weapons, The Telegraph,
February 4, 2011; A Good Decade for Cybercrime, McAfee, 2010; Spamhaus on March
10, 2011; PCMeg.com on March 10, 2011; and The cost of cybercrime, Detica, February
2011.

[66]
 ‘McAfee Q4 Threat Report Identifies New Attacks on Mobile Devices; Malware
Growth at All-Time High’
<http://www.mcafee.com/mx/about/news/2011/q1/20110208-01.aspx> (visited
October 16, 2013).

[67]
 Id.

[68]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 6 (visited October 16, 2013)

[69]
 Id., citing The cost of cybercrime, Detica, February 2011.

[70]
 Id., citing Cybercrime in Germany on the rise, DW World, September 7, 2010.

[71]
 Id., citing The cost of cybercrime, Cabinet Office (UK), February 2011.

[72]
 M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH
HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at
<http://ssrn.com/abstract=1844720 (visited October 16, 2013).

[73]
 Id.

[74]
 Id.

[75]
 Id.

[76]
 Johnson, D. R. and D. Post (1995), 'Law and borders: The rise of law in
cyberspace', Stan. L. Rev.,48, 1367, cited in M. Ziewitz and I. Brown, A Prehistory of
Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27
(2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).

[77]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 3-
4 (visited October 16, 2013).

[78]
 R. H. Weber, ‘Accountability in Internet Governance’, University of Zurich Professor,
154 <http://ijclp.net/files/ijclp_web-doc_8-13-2009.pdf> (visited October 16, 2013).

[79]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

[80]
 Id. at 3.

[81]
 Id. at 70.

[82]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
51 (visited October 16, 2013).

[83]
 Id. at 52.

[84]
 Id. at 51-52.

[85]
 Id. at 51.

[86]
 Id. at 53.

[87]
 Id. at 11-12.

[88]
 Id. at 12.

[89]
 Id. at 64.

[90]
 Id.

[91]
 Id. at 67.

[92]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
64 (visited October 16, 2013).

[93]
 African Union, 2012. Draft Convention on the Establishment of a Legal Framework
Conducive to Cybersecurity in Africa.
[94]
 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity
Draft Model Bill.

[95]
 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii)
Model Law on Electronic Evidence.

[96]
 Commonwealth of Independent States, 2001. Agreement on Cooperation in
Combating Offences related to Computer Information.

[97]
 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the
Convention on Cybercrime, concerning the criminalisation of acts of a racist and
xenophobic nature committed through computer systems.

[98]
 Council of Europe, 2007. Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.

[99]
 Economic Community of West African States (ECOWAS), 2009. Draft Directive on
Fighting Cybercrime within ECOWAS.

[100]
 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks
against information systems.

[101]
 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the
European Parliament and of the Council on attacks against information systems and
repealing Council Framework Decision 2005/222/JHA.

[102]
 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud
and counterfeiting of non-cash means of payment.

[103]
 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the
Council on combating the sexual abuse and sexual exploitation of children and child
pornography, and replacing Council Framework Decision 2004/68/JHA and European
Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council
concerning the processing of personal data and the protection of privacy in the
electronic communications sector.

[104]
 International Telecommunication Union (ITU)/Caribbean Community
(CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative
Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

[105]
 League of Arab States, 2010. Arab Convention on Combating Information Technology
Offences.
[106]
 League of Arab States, 2004. Model Arab Law on Combating Offences related to
Information Technology Systems.

[107]
 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of
International Information Security.

[108]
 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution, and child pornography.

[109]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
12 (visited October 16, 2013).

[110]
 The United Nations Convention Against Corruption “does not define ‘corruption’, but
rather obliges States Parties to criminalize a specific set of conduct which can be more
effectively described.” ‘Comprehensive Study on Cybercrime’ prepared by United
Nations Office on Drugs and Crime for the Intergovernmental Expert Group on
Cybercrime, February 2013, 12 (visited October 16, 2013).

[111]
 Id.

[112]
 Id. at 16.

[113]
 Id.

[114]
 Id.

[115]
 Id.

[116]
 Id. at 70.

[117]
 Id.

[118]
 African Union, 2012. Draft Convention on the Establishment of a Legal Framework
Conducive to Cybersecurity in Africa.

[119]
 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity
Draft Model Bill.

[120]
 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii)
Model Law on Electronic Evidence.
[121]
 Commonwealth of Independent States, 2001. Agreement on Cooperation in
Combating Offences related to Computer Information.

[122]
 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the
Convention on Cybercrime, concerning the criminalisation of acts of a racist and
xenophobic nature committed through computer systems.

[123]
 Council of Europe, 2007. Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.

[124]
 Economic Community of West African States (ECOWAS), 2009. Draft Directive on
Fighting Cybercrime within ECOWAS.

[125]
 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks
against information systems.

[126]
 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the
European Parliament and of the Council on attacks against information systems and
repealing Council Framework Decision 2005/222/JHA.

[127]
 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud
and counterfeiting of non-cash means of payment.

[128]
 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the
Council on combating the sexual abuse and sexual exploitation of children and child
pornography, and replacing Council Framework Decision 2004/68/JHA and European
Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council
concerning the processing of personal data and the protection of privacy in the
electronic communications sector.

[129]
 International Telecommunication Union (ITU)/Caribbean Community
(CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative
Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

[130]
 League of Arab States, 2010. Arab Convention on Combating Information Technology
Offences.

[131]
 League of Arab States, 2004. Model Arab Law on Combating Offences related to
Information Technology Systems.

[132]
 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of
International Information Security.
[133]
 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution, and child pornography.

[134]
 400 Phil. 904 (2002) [Per Curiam, En Banc].

[135]
 See the Separate Opinion of Justice Mendoza in Cruz v. Secretary of Environment
and Natural Resources, 400 Phil. 904,1092 (2002) [Per Curiam, En Banc].

[136]
 See the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421
Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc] citing Gooding v. Wilson, 405 U.S.
518, 521, 31 L.Ed.2d 408, 413 (1972); United States v. Salerno, 481 U.S. 739, 745, 95
L.Ed.2d 697, 707 (1987); People v. De la Piedra, 403 Phil. 31 (2001); Broadrick v.
Oklahoma, 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973); Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369
(1982); United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960); Yazoo &
Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).

[137]
 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].

[138]
 David v. Arroyo, 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc] citing the
Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-
432 (2001) [Per J. Bellosillo, En Banc]; Broadrick v. Oklahoma, 413 U.S. 601
(1973); Younger v. Harris, 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971); United States
v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox,
492 U.S. 469, 106 L.Ed.2d 388 (1989).

[139]
 479 Phil. 265 (2004) [Per J. Panganiban, En Banc].

[140]
 576 Phil. 357 (2008) [Per J. Chico-Nazario, En Banc].

[141]
 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc].

[142]
 Romualdez v. Commission on Elections, G.R. No. 167011, December 11, 2008, 573
SCRA 639, 645 [Per J. Chico-Nazario, En Banc].

[143]
 G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].

[144]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 186-189 [Per J. Carpio-Morales, En Banc], citing
David v. Macapagal-Arroyo, 489 SCRA 160, 239 (2006) [Per J. Sandoval-Gutierrez, En
Banc]; Romualdez v. Commission on Elections, 573 SCRA 639 (2008) [Per J. Chico-
Nazario, En Banc]; Estrada v. Sandiganbayan, Phil. 290 (2001) [Per J. Bellosillo, En Banc];
Consti., art. III, sec. 4; People v. Siton, 600 SCRA 476, 485 (2009) [Per J. Ynares-Santiago,
En Banc]; Virginia v. Hicks, 539 U.S. 113, 156 L. Ed. 2d 148 (2003); Gooding v. Wilson,
405 U.S. 518, 31 L. Ed 2d 408 (1972).

[145]
 151-A Phil. 656 (1973) [Per J. Makasiar, En Banc].

[146]
 Philippine Blooming Mills Employment Organization et al v. Philippine Blooming
Mills, Co. Inc., 151-A Phil. 656, 674-676 (1973) [Per J. Makasiar, En Banc].

[147]
 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

[148]
 Chavez v. Gonzales, 569 Phil. 155, 197-198 (2008) [Per C.J. Puno, En Banc].

[149]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 185 [Per J. Carpio-Morales, En Banc].

[150]
 344 U.S. 183 (1952).

[151]
 Wieman v. Updegraff, 344 U.S. 183, 195 (1952).

[152]
 376 U.S. 254 (1964).

[153]
 New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

[154]
 371 U.S. 415 (1963).

[155]
 National Association for the Advancement of Colored People v. Button, 371 U.S. 415,
431-433 (1963).

[156]
 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

[157]
 Chavez v. Gonzales, 569 Phil. 155, 219-221 (2008) [Per C.J. Puno, En Banc].

[158]
 Ponencia, J. Abad, p. 24.

[159]
 13 Phil. 690 (1918) [Per J. Johnson].

[160]
 “An Act defining the law of libel and threats to publish a libel, making libel and
threats to publish a libel misdemeanors, giving a right of civil action therefor, and
making obscene or indecent publications misdemeanors.” This was repealed by the
Revised Penal Code via Article 367, Repealing Clause.

[161]
 U.S. v. Bustos, 13 Phil. 690, 698 (1918) [Per J. Johnson].
[162]
 New York Times v. Sullivan, 376 U.S. 254 (1964).

[163]
 See Lopez v. Court of Appeals, 145 Phil. 219 (1970) [Per J. Fernando, En
Banc]; Mercado v. Court of First Instance, 201 Phil. 565 (1982) [Per J. Fernando, Second
Division]; and Adiong vs. Commission on Elections, G.R. No. 103956, March 31, 1992,
207 SCRA 712 [Per J. Gutierrez, En Banc].

[164]
 Actual malice may mean that it was with the “knowledge that it was false or with
reckless disregard of whether it was false or not.” See New York Times v. Sullivan, 376
U.S. 254, 268 (1964).

[165]
 New York Times v. Sullivan, 376 U.S. 254, 268 (1964).

[166]
 Id. at 281-282.

[167]
 Id. at 269-273.

[168]
 243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].

[169]
 361 Phil. 1 (1999) [Per J. Bellosillo, Second Division].

[170]
 Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M.
Capulong, 243 Phil. 1007, 1018-1019 (1988) [Per J. Feliciano, En Banc].

[171]
 Id. at 1023-1024, citing Professors William Lloyd Prosser and W. Page Keeton,
Prosser and Keeton on Torts, 5th ed. at 859–861 (1984).

[172]
 373 Phil. 238 (1999) [Per J. Mendoza, En Banc].

[173]
 Id. at 250-255.

[174]
 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

[175]
 Id. at 221-222.

[176]
 G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].

[177]
 Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA
1, 15 [Per J. Quisumbing, Second Division].

[178]
 Estrada v. Sandiganbayan, 421 Phil. 290, 353 (2001) [Per J. Bellosillo, En Banc] citing
NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker, 364
U.S. 479, 5 L.Ed.2d 231 (1960).
[179]
 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.

[180]
 Revised Penal Code, Art. 353.

[181]
 Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

[182]
 Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

[183]
 Art. 21. Any person who wilfully causes loss or injury to another in manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

[184]
 Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc., v. Islamic Da’wah
Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]. Justice
Carpio was of the view that the defamatory article published in the case fell under
Article 26 of the Civil Code.

[185]
 See Tucker, C. and A. Matthews, Social Networks, Advertising and Antitrust, in
GEORGE MASON LAW REVIEW, 19 Geo. Mason L. Rev. 1211, 1214.

[186]
 See <http://www2.uncp.edu/home/acurtis/NewMedia/SocialMedia/SocialMediaHist
ory.html> (visited February 19, 2014).

[187]
 See <http://im.about.com/od/imbasics/a/imhistory_3.htm> (visited February 19,
2014).

[188]
 See <http://www.friendsreunited.com/About> (visited February 19, 2014).

[189]
 D. Garcia, P. Mavrodiev, and F. Schweitzer, Social Resilience in Online Communities:
The Autopsy of Friendster. Available at <http://arxiv.org/pdf/1302.6109v1.pdf> (visited
February 19, 2014).

[190]
 See <http://www.huffingtonpost.com/2011/06/29/myspace-history-
timeline_n_887059.html#s299557&title=July_2006_Number> (visited February 19,
2014).

[191]
 See S. Davis, STUDENT COMMENT: Social Media Activity & the Workplace: Updating
the Status of Social Media, 39 Ohio N.U.L. Rev. 359, 361.

[192]
 See <http://venturebeat.com/2013/09/16/how-twitter-plans-to-make-its-750m-
users-like-its-250m-real-users/> (visited February 19, 2014).

[193]
 See <http://abcnews.go.com/Business/twitter-ipo-filing-reveals-500-million-tweets-
day/story?id=20460493> (visited February 19, 2014).

[194]
 See <http://sourcedigit.com/4023-instagram-timeline-history/> (visited February 19,
2014).

[195]
 Guingguing v. Court of Appeals, 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

[196]
 Guingguing v. Court of Appeals, 508 Phil. 193, 204-206 (2005) [Per J. Tinga, Second
Division], citing New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

[197]
 Id. at 207.

[198]
 376 U.S. 254 (1964).

[199]
 New York Times v. Sullivan, 376 U.S. 254, 281-282 (1964).

[200]
 See Guingguing v. Court of Appeals, 508 Phil. 193, 209-211 (2005) [Per J. Tinga,
Second Division], citing Garrison v. Louisiana, 379 U.S. 64 (1964) and Curtis Publishing
Co. v. Butts, 388 U.S. 130, 163-164 (1967), CJ Warren, concurring.

[201]
 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 70 (2008).

[202]
 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 17-18 (2008).
[203]
 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 71 (2008).

[204]
 18 Phil. 1 (1910) [Per J. Johnson].

[205]
 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 18 (2008) citing
People v. Del Rosario, 86 Phil. 163 (1950).

[206]
 These include cases that resolved the issue of guilt for the offense as well as cases
that tackled procedural or jurisdictional issues and remanded the main issue to the trial
court.

[207]
 See Magno v. People, 516 Phil. 72 (2006) [Per J. Garcia, Second Division]; See also
MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230
(2004) [Per J. Bellosillo, En Banc]; Villamar-Sandoval v. Cailipan, G.R. No. 200727, March
4, 2013, 692 SCRA 339 (2013) [Per J. Perlas-Bernabe, Second Division].

[208]
 R. Pangalangan, Libel as Politics, in Libel as Politics 11 (2008). Note, however, our
ruling in Crespo v. Mogul, 235 Phil. 465 (1987), where we said that, “it is the duty of the
fiscal to proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the accused
should be convicted or acquitted. x x x The rule therefore in this jurisdiction is that once
a complaint or information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of the Court.”

[209]
 See Brillante v. Court of Appeals, 483 Phil. 568 (2004) [Per J. Tinga, Second Division];
Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1
[Per J. Quisumbing, Second Division].

[210]
 See Yuchengco v. Manila Chronicle Publishing Corporation, G.R. No. 184315,
November 25, 2009, 605 SCRA 684 [Per J. Chico-Nazario, Third Division]; Bonifacio v.
Regional Trial Court of Makati, Branch 149, G.R. No. 184800, May 5, 2010, 620 SCRA 268
[Per J. Carpio-Morales, First Division]. This case involved allegedly libelous articles
published in websites.

[211]
 See Buatis v. People, 520 Phil. 149 (2006) [Per J. Austria-Martinez, First Division]; See
also Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division]; and Fortun
v. Quinsayas, G.R. No. 194578, February 13, 2013, 690 SCRA 623 [Per J. Carpio, Second
Division]. This case originated as a special civil action for contempt involving Atty. Sigfrid
A. Fortun and several media outfits. However, this court expanded the concept of public
figures to lawyers, stating that lawyers of high-profile cases involving public concern
become public figures.

[212]
 See Fermin v. People, G.R. No. 157643, March 28, 2008, 550 SCRA 132 [Per J.
Nachura, Third Division]; Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24,
2012, 684 SCRA 521 [Per J. Peralta, Third Division].

[213]
 See Banal III v. Panganiban, 511 Phil. 605 (2005) [Per J. Ynares-Santiago, First
Division]. See also Insular Life Assurance Company, Limited v. Serrano, 552 Phil. 469
(2007) [Per C.J. Puno, First Division].

[214]
 See Lagaya v. People, G.R. No. 176251, July 25, 2012, 677 SCRA 478 [Per J. Del
Castillo, First Division]; Lopez v. People, G.R. No. 172203, February 14, 2011 642 SCRA
668 [Per J. Del Castillo, First Division]; Binay v. Secretary of Justice, 532 Phil. 742 (2006)
[Per J. Ynares-Santiago, First Division]; See also Jalandoni v. Drilon, 383 Phil. 855 (2000)
[Per J. Buena, Second Division]; Macasaet v. Co, Jr., G.R. No. 156759, June 5, 2013, 697
SCRA 187; Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division].

[215]
 See Yambot v. Tuquero, G.R. No. 169895, March 23, 2011, 646 SCRA 249 [Per J.
Leonardo-De Castro, First Division].

[216]
 Guingguing v. Court of Appeals, 508 Phil. 193, 214 (2005), citing Garrison, 379 U.S.
64 (1964). This court in Guingguing said that:

Lest the impression be laid that criminal libel law was rendered extinct in regards to
public officials, the Court made this important qualification in Garrison:

The use of calculated falsehood, however, would put a different cast on the
constitutional question. Although honest utterance, even if inaccurate, may further the
fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like immunity. At the time
the First Amendment was adopted, as today, there were those unscrupulous enough
and skillful enough to use the deliberate or reckless falsehood as an effective political
tool to unseat the public servant or even topple an administration. That speech is used
as a tool for political ends does not automatically bring it under the protective mantle of
the Constitution. For the use of the known lie as a tool is at once with odds with the
premises of democratic government and with the orderly manner in which economic,
social, or political change is to be effected.
[217]
 See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc. v. Islamic
Da’wah Council of the Philippines, Inc. 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]
where he opined that the defamatory article published in the case falls under Article 26
of the Civil Code.

Article 26. Every person shall respect the dignity, personality, privacy and peace of mind
of his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief:
(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

[218]
 Globe Mackay Cable and Radio Corp. v. Court of Appeals, 257 Phil. 783, 783-785
(1989) [Per J. Cortes, Third Division].

[219]
 Philippine Journalists, Inc. (People’s Journal) v. Thoenen, 513 Phil. 607, 625 (2005)
[Per J. Chico-Nazario, Second Division], citing Garrison v. Louisiana, 379 US 64 (1964),
which in turn cited Justice Stewart’s concurring opinion in Rosenblatt v. Baer, 383 US 75
(1966).

[220]
 Ponencia, J. Abad, 17-18. Citations omitted.

[221]
 Id. at 18.

[222]
 Pita v. Court of Appeals, 258-A Phil. 134, 146 (1989) [Per J. Sarmiento, En
Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 416 (2006) [Per J.
Quisumbing, Third Division].

[223]
 Id., citing Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the
movie version in Lady Chatterley's Lover.

[224]
 Id. at 146.

[225]
 Id. at 147.

[226]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].

[227]
 354 US 476, 487 (1957).

[228]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985).

[229]
 413 US 15 (1973).

[230]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],
cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006) [Per J. Quisumbing,
Third Division].

[231]
 Id., cited in Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) and cited in
Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006).

[232]
 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc].

[233]
 539 Phil. 407, 417 [Per J. Quisumbing, Third Division].

[234]
 G.R. No. 164785 and G.R. No. 165636, April 29, 2009, 587 SCRA 79 [Per J. Velasco, En
Banc].

[235]
 Id. at 101.

[236]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985) [Per C.J. Fernando, En Banc].

[237]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

[238]
 Rep. Act No. 10175, sec. 4(c)(1).

[239]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

[240]
 Rep. Act No. 10175, sec. 4(c)(1).

[241]
 354 US 476 (1957).

[242]
 Id.

[243]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 233 (1985) [Per C.J. Fernando, En Banc].

[244]
 See C. MacKinnon, ONLY WORDS (1993).

[245]
 Id. at 14.

[246]
 Id. at 14-15, 89-90.

[247]
 Id. at 14-15, 88-91. Catharine MacKinnon and Andrea Dworkin proposed a law that
defines pornography as “graphic sexually explicit materials that subordinate women
through pictures or words,” p. 22.

[248]
 Id. at 9.

[249]
 Id. at 87-88.
[250]
 Id at 87. See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in
DOING ETHICS 303 (2009).

[251]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 301.

[252]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 309.

[253]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics.

[254]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 300-302.

[255]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 301-302, 307.

[256]
 Baker, E. C. REVIEW: Of Course, More Than Words. Only Words. Catharine A.
MacKinnon. 61 U. Chi. L. Rev. 1181 (1994) 1197.

[257]
 Id.

[258]
 Id.

[259]
 Id.

[260]
 Id. at 1194.

[261]
 Id. at 1197-1211.

[262]
 Id. at 1199.

[263]
 Id. at 1203.

[264]
 Id. at 1204.

[265]
 Id.

[266]
 C. Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in J. Rosen
and B. Wittes, eds., Constitution 3.0, 23 (2011), citing Justice Douglas in Papachristou v
Jacksonville, 405 U.S. 156, 164 (1972) and W. H. Rehnquist, Is an Expanded Right of
Privacy Consistent with Fair and Effective Law Enforcement?; or Privacy, You’ve Come a
Long Way, Baby, 23 Kansas Law Review 1, 9 (1974).

[267]
 G.R. No. 103956, March 31, 1992, 207 SCRA 712.

[268]
 Id. at 719-720.

[269]
 535 Phil. 687 (2006).

[270]
 Id. at 714-715.

[271]
 See for instance J. Rosen et al., CONSTITUTION 3.0 FREEDOM AND TECHNOLOGICAL
CHANGE (2011).

[272]
 See E.C. Baker, ‘Autonomy and Informational Privacy, or Gossip: The Central
Meaning of the First Amendment’, (visited February 21, 2014).

[273]
 367 Phil. 703 (1999).

[274]
 Id. at 715.

[275]
 G.R. No. 164815, September 3, 2009, 598 SCRA 41.

[276]
 Id. at 59.

[277]
 259 Phil. 541 (1989).

[278]
 Id. at 549.

[279]
 G.R. No. 95902, February 4, 1992, 205 SCRA 791.

[280]
 Id. at 798.

[281]
 G.R. No. 86218, September 18, 1992, 214 SCRA 63.

[282]
 Id. at 68-69.

[283]
 G.R. No. 105834, February 13, 1995, 241 SCRA 277.

[284]
 Id. at 283-284.

[285]
 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.
[286]
 Id. at 728-729.

[287]
 Rep. Act No. 10173, otherwise known as the “Data Privacy Act of 2012.?

[288]
 Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session

[289]
 Id. at 279.

[290]
 328 Phil. 893 (1996) [Per J. Puno, En Banc].

[291]
 Id. at 933. “Presently in the United States, the clear and present danger test is not
applied to protect low value speeches such as obscene speech, commercial speech and
defamation.”

[292]
 561 Phil. 386 (2007) [En Banc].

[293]
 Id. at 449.

[294]
 Id. at 449-450.

[295]
 569 Phil. 155 (2008) [En Banc].

[296]
 Id. at 237.

[297]
 Id.

[298]
 Id. at 244.

[299]
 Id.

[300]
 Page 14 of Justice Roberto Abad’s February 7, 2014 draft.

[301]
 Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980)
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557>
(visited February 13, 2014).

[302]
 Id.

[303]
 Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976)
<http://caselaw.lp.findlaw.com/cgi bin/getcase.pl?
friend=llrx&navby=volpage&court=us&vol=425&page=765> (visited February 21, 2014).

[304]
 Id.
[305]
 Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980)
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557>
(visited February 13, 2014).

[306]
 Id. There are contrary opinions, but their reasoning is not as cogent. As explained by
Justice Clarence Thomas in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996): I do not see a philosophical or historical basis for asserting that
"commercial" speech is of "lower value" than "noncommercial" speech. Indeed, some
historical materials suggest the contrary.

As noted by Aaron A. Scmoll, referring to the United States Supreme Court Decision
in 44 Liquormart,: “While Stevens and several other Justices seemed willing to apply
strict scrutiny to regulations on truthful advertising, a majority seemed content to
continue down the path Central Hudson created. The strongest reading drawn from 44
Liquormart may be that as to complete bans on commercial speech, the Court will
strictly apply Central Hudson so that in those cases, the analysis resembles strict
scrutiny.” Schmoll, Aaron A. (1998) "Sobriety Test: The Court Walks the Central Hudson
Line Once Again in 44 Liquormart, but Passes on a New First Amendment Review,
"Federal Communications Law Journal: Vol. 50: Iss. 3, Article 11.

[307]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[308]
 Id.

[309]
 ‘The Bad Guys from Outside:
Malware’, http://www.ciscopress.com/articles/article.asp?p=1579061&seqNum=4 (visit
ed February 14, 2014).

[310]
 ‘Spam: The Silent ROI Killer’, < http://www.spamhelp.org/articles/d59.pdf> (visited
February 14, 2014).

[311]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[312]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[313]
 ‘California Man Guilty of Defrauding AOL Subscribers, U.S. Says’, (visited February
14, 2014). On spam laws, < http://www.spamlaws.com/aol-phishing.html> (visited
February 14, 2014).
[314]
 Rep. Act No. 10175, sec. 4 (c) (3).

[315]
 Rep. Act No. 10175, sec. 4 (c) (3).

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Supreme Court E-Library

ii.      R.A. 4200
1. Ramirez vs. CA, 248 SCRA 590

318 Phil. 701

FIRST DIVISION

[ G.R. No. 93833, September 28, 1995 ]

SOCORRO D. RAMIREZ, PETITIONER, VS. HONORABLE COURT OF APPEALS, AND ESTER

S. GARCIA, RESPONDENTS.

DECISION

KAPUNAN, J.:
civil case for damages was filed by petitioner Socorro D. Ramirez in the Regional Trial
Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a
confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a
"hostile and furious mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy.[1]

In support of her claim, petitioner produced a verbatim transcript of the event and
sought moral damages, attorney's fees and other expenses of litigation in the amount of
P610,000.00, in addition to costs, interests and other reliefs awardable at the trial
court's discretion.  The transcript on which the civil case was based was culled from a
tape recording of the confrontation made by petitioner.[2] The transcript reads as
follows:

Plaintiff Soccoro D. Ramirez (Chuchi) -           Good afternoon M'am.

Defendant Ester S. Garcia (ESG)        -           Ano ba ang nangyari sa 'yo, nakalimot ka na
kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang
gagawin ko sa 'yo.

CHUCHI         -            Kasi, naka duty ako noon.

ESG               -            Tapos iniwan no. (Sic)

CHUCHI         -            Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon -

ESG               -            Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo,
nag-aaply ka sa States, nag-aapply ka sa review mo, kung kakailanganin ang certification
mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI         -            Hindi M'am kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
p.m.

ESG               -            Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa

hotel.  Magsumbong ka sa Union kung gusto mo.  Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. 
Panunumbvoyan na kita (Sinusumbatan na kita).

CHUCHI         -            Itutuloy ko na M'am sana ang duty ko.

ESG               -            Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG               -            Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on

your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply
alam kong hindi ka papasa.

CHUCHI         -            Kumuha kami ng exam noon.

ESG               -            Oo, pero hindi ka papasa.

CHUCHI         -            Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG               -            Kukunin ka kasi ako.

CHUCHI         -            Eh, di sana —

ESG               -            Huwag mong ipagmalaki na may utak ka kasi wala kang utak.  Akala
mo ba makukuha ka dito kung hindi ako.

CHUCHI         -            Mag-eexplain ako.

ESG               -            Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung
paano ka puma-rito.  "Putang ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo
ang mga magulang ko.

ESG               -            Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka
puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI         -            Kasi M'am, binbalikan ako ng mga taga Union.

ESG                - Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka

makakapasok kung hindi ako.  Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos
ka na.

CHUCHI         -            Ina-ano ko m'am na utang na loob.

ESG               -            Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastanganan mo ako.

CHUCHI         -            Paano kita nilapastanganan?

ESG               -            Mabuti pa lumabas ka na.  Hindi na ako makikipagusap sa 'yo. 

Lumabas ka na.  Magsumbong ka.[3]

As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of private
communication, and other purposes." An information charging petitioner of violation of
the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accuses Socorro D. Ramirez of Violation of

Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February 1988, in Pasay City Metro Manila Philippines,
and within the jurisdiction of this honorable court, the above-named accused, Socorro
D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation
with said accused, did then and there wilfully, unlawfully and feloniously, with the use
of a tape recorder secretly record the said conversation and thereafter communicate in
writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information
on the ground that the facts charged do not constitute an offense, particularly a
violation of R.A. 4200.  In an order dated May 3, 1989, the trial court granted the
Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an
offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the
taping of a communication by a person other  than a participant to the communication.[4]

From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of Appeals
in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision

declaring the trial court's order of May 3, 1989 null and void, and holding that:

"[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.

4200. In thus quashing the information based on the ground that the facts alleged do
not constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari."[5]

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration

which respondent Court of Appeals denied in its Resolution[6] dated June 19, 1990. 
Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"[7] that the applicable
provision of Republic Act 4200 does not apply to the taping of a private conversation by
one of the parties to the conversation.  She contends that the provision merely refers to
the unauthorized taping of a private conversation by a party other than those involved
in the communication.[8] In relation to this, petitioner avers that the substance or
content of the conversation must be alleged in the Information, otherwise the facts
charged would not constitute a violation of R.A. 4200.[9] Finally, petitioner argues that
R.A. 4200 penalizes the taping of a "private communication," not a "private
conversation" and that consequently, her act of secretly taping her conversation with
private respondent was not illegal under the said act.[10]

We disagree.

First, legislative intent is determined principally from the language of a statute.  Where
the language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal
interpretation would be either impossible[11] or absurd or would lead to an injustice[12].

Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other
Related Violations of Private Communication and Other Purposes," provides:

Section I.  It shall be unlawful for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not
authorized by all the parties to any private communication to secretly record such
communication by means of a tape recorder.  The law makes no distinction as to
whether the party sought to be penalized by the statute ought to be a party other than
or different from those involved in the private communication.  The statute's intent to
penalize all persons unauthorized to make such recording is underscored by the use of
the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator"[13] under this
provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent

court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to
make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons.  Thus:

x x x                           x x x                           x x x

Senator Tanada:  That qualified only 'overhear'.

Senator Padilla:   So that when it is intercepted or recorded, the element of secrecy

would not appear to be material.  Now, suppose, Your Honor, the recording is not made
by all the parties but by some parties and involved not criminal cases that would be
mentioned under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the parties but perhaps
by some in an effort to show the intent of the parties because the actuation of the
parties prior, simultaneous even subsequent to the contract or the act may be indicative
of their intention.  Suppose there is such a recording, would you say, Your Honor, that
the intention is to cover it within the purview of this bill or outside?

Senator Tanada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but
as evidence to be used in Civil Cases or special proceedings?

Senator Tanada: That is right.  This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.

Senator Padilla:   Now, would that be reasonable, Your Honor?

Senator Tanada: I believe it is reasonable because it is not sporting to record the

observation of one without his knowing it and then using it against him.  It is not fair, it
is not sportsmanlike.  If the purpose; Your honor, is to record the intention of the
parties.  I believe that all the parties should know that the observations are being
recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tanada: Well no.  For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that these are being recorded.

Senator Padilla: Now, I can understand.

Senator Tanada: That is why when we take statements of persons, we say: "Please be
informed that whatever you say here may be used against you." That is fairness and that
is what we demand.  Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more.  But if you are going to
take a recording of the observations and remarks of a person without him knowing that
it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.

x x x                           x x x                           x x x

(Congressional Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section I of the bill as now
worded, if a party secretly records a public speech, he would be penalized under Section
I? Because the speech is public, but the recording is done secretly.

Senator TANADA: Well, that particular aspect is not contemplated by the bill.  It is the
communication between one person and another person - not between a speaker and a
public.

x x x                           x x x                           x x x

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

x x x                           x x x                           x x x

The unambiguity of the express words of the provision, taken together with the above-
quoted deliberations from the Congressional Record, therefore plainly supports the
view held by the respondent court that the provision seeks to penalize even those privy
to the private communications.  Where the law makes no distinctions, one does not
distinguish.

Second, the nature of the conversation is immaterial to a violation of the statute.  The
substance of the same need not be specifically alleged in the information.  What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that
an individual made a secret recording of a private communication by means of a tape
recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere
(in the said law) is it required that before one can be regarded as a violator, the nature
of the conversation, as well as its communication to a third person should be
professed."[14]
Finally, petitioner's contention that the phrase "private communication" in Section 1 of
R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the
word "communication" to a point of absurdity.  The word communicate comes from the
latin word communicare,  meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting, as in a conversation,[15] or
signifies the "process by which meanings or thoughts are shared between individuals
through a common system of symbols (as language signs or gestures)"[16] These
definitions are broad enough to include verbal or non-verbal, written or expressive
communications of "meanings or thoughts" which are likely to include the emotionally -
charged exchange, on February 22, 1988, between petitioner and private respondent, in
the privacy of the latter's office.  Any doubts about the legislative body's meaning of the
phrase "private communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator Tanada in
his Explanatory Note to the bill, quoted below:

"It has been said that innocent people have nothing to fear from
their conversations  being overheard.  But this statement ignores the usual nature
of conversations as well as the undeniable fact that most, if not all, civilized people have
some aspects of their lives they do not wish to expose.  Free conversations are often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of
anti-social desires of views not intended to be taken seriously.  The right to the privacy
of communication, among others, has expressly been assured by our Constitution. 
Needless to state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual nature, of
his feelings and of his intellect.  They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free exchange
of communication  between individuals —  free from every unjustifiable intrusion by
whatever means."[17]

In Gaanan vs Intermediate Appellate Court [18] a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose
of overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those devises enumerated in
Section 1 of the law nor was it similar to those "device(s) or arrangement(s)"
enumerated therein,[19] following the principle that "penal statutes must be construed
strictly in favor of the accused."[20] The instant case turns on a different note, because
the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from
no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of
private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous
and leaves us with no discretion, the instant petition is hereby DENIED.  The decision
appealed from is AFFIRMED.  Costs against petitioner.
SO ORDERED.

Padilla, (Chairman), Davide, Jr., and Bellosillo, JJ., concur.

Hermosisima, Jr., J., on leave.

[1]
 Docketed as Civil Case No. 88-403, Regional Trial Court, Makati, Branch 64.

[2]
 Rollo, p. 48.

[3]
 Rollo, pp. 47-48.

[4]
 Rollo, p. 9.

[5]
 Rollo, p. 37.

[6]
 Rollo, p. 99, Annex "H."

[7]
 Rollo, p. 13.

[8]
 Id.

[9]
 Rollo, p. 14.

[10]
 Rollo, pp. 14-15.

[11]
 Pacific Oxygen and Acytelene Co. Vs. Central Bank 37 SCRA 685 (1971).

[12]
 Casela v. Court of Appeals, 35 SCRA 279 (1970).

[13]
 Rollo, p. 33.

[14]
 Rollo, p. 67.

[15]
 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1976).

[16]
 Id.

[17]
 CONGRESSIONAL RECORD, Vol. III, No. 31, at 573 (March 10, 1964).

[18]
 145 SCRA 112 (1986). See also,  Salcedo-Ortanez v. CA 235 SCRA 111 (1994).
[19]
 Id., at 120.

[20]
 Id., at 121.

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ii.      R.A. 4200
2. Gaanan vs. IAC, 145 SCRA 112

229 Phil. 139

SECOND DIVISION

[ G.R. No. 69809, October 16, 1986 ]

EDGARDO A. GAANAN, PETITIONER, VS. INTERMEDIATE APPELLATE COURT AND

PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

GUTIERREZ, JR., J.:

This petition for certiorari  asks for an interpretation of Republic Act (RA) No. 4200,
otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an
extension telephone is among the prohibited devices in Section 1 of the Act, such that
its use to overhear a private conversation would constitute unlawful interception of
communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are
not disputed by the petitioner.

"In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel
Montebon were in the living room of complainant's residence discussing the terms for
the withdrawal of the complaint for direct assault which they filed with the Office of the
City Fiscal of Cebu against Leonardo Laconic.  After they had decided on the proposed
conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-
5).

"That same morning, Laconico telephoned appellant, who is a lawyer, to come to his
office and advise him on the settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip.  According to the request,
appellant went to the office of Laconico where he was briefed about the problem. 
(Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

"When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement.  Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault"

"(a)         the P5,000.00 was no longer acceptable, and that the figure had been increased
to P8,000.00.  A breakdown of the P8,000.00 had been made together with other
demands, to wits:  (a) P5,000.00 no longer for the teacher Manuel Montebon, but for
Atty.  Pintor himself in persuading his client to withdraw the case for Direct Assault
against Atty. Laconico before the Cebu City Fiscal's Office;

"(b          Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;

"(c)         P1,000.00 to be given to the Don Bosco Faculty club;

"(d)         transfer of son of Atty. Laconico to another school or another section of Don
Bosco Technical High School;

"(e)         Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed
against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit
of desistance on the Direct Assault Case against Atty. Laconico to be filed later;
"(f)          Allow Manuel Montebon to continue teaching at the Don Bosco Technical
School;

"(g)         Not to divulge the truth about the settlement of the Direct Assault Case to the
mass media;

"(h)         P2,000.00 attorney's fees for Atty. Pintor.

(tsn, August 26, 1981, pp. 47-48).

"Twenty minutes later, complainant called up again to ask Laconico if he was agreeable
to the conditions.  Laconico answered 'Yes'.  Complainant then told Laconico to wait for
instructions on where to deliver the money.  (tsn, march 10, 1983, pp. 2-12).

"Complainant called up again and instructed Laconico to give the money to his wife at
the office of the then Department of Public Highways.  Laconico who earlier alerted his
friend Colonel Zulueta of the Criminal Investigation Service of the Philippine
Constabulary, insisted that complainant himself should receive the money.  (tsn, March
10, 1982, pp. 26-33).  When he received the money at the Igloo Restaurant, complainant
was arrested by agents of the Philippine Constabulary.

"Appellant executed on the following day an affidavit stating that he heard complainant
demand P8,000.00 for the withdrawal of the case for direct assault.  Laconico attached
the affidavit of appellant to the complaint for robbery/extortion which he filed against
complainant.  Since appellant listened to the telephone conversation without
complainant's consent, complainant charged appellant and Laconico with violation of
the Anti-Wiretapping Act."

After trial on the merits, the lower court, in a decision dated November 22, 1982, found
both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200.  The
two were each sentenced to one (1) year imprisonment with costs.  Not satisfied with
the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial
court, holding that the communication between the complainant and accused Laconico
was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner
over heard such communication without the knowledge and consent of the
complainant; and that the extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and Laconico is covered in
the term "device" as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court
and raises the following issues:  (a) whether or not the telephone conversation between
the complainant and accused Laconico was private in nature; (b) whether or not an
extension telephone is covered by the term "device or arrangement" under Rep. Act No.
4200; (c) whether or not the petitioner had authority to listen or overhear said
telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and,
therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

"Section 1.  It shall be unlawful for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized
in the next preceeding sentence, to knowingly possess any tape record, wire record, disc
record, or any other such record, or copies thereof, of any communication or spoken
word secured either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person:  Provided, that
the use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by
this prohibition."

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule
of evidence.  The issue is not the admissibility of evidence secured over an extension
line of a telephone by a third party.  The issue is whether or not the person called over
the telephone and his lawyer listening to the conversation on an extension line should
both face prison sentences simply because the extension was used to enable them to
both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor
and accused Atty. Laconico was "private" in the sense that the words uttered were
made between one person and another as distinguished from words between a speaker
and a public.  It is also undisputed that only one of the parties gave the petitioner the
authority to listen to and overhear the caller's message with the use of an extension
telephone line.  Obviously, complainant Pintor, a member of the Philippine bar, would
not have discussed the alleged demand for an P8,000.00 consideration in order to have
his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City
Fiscal's Office if he knew that another lawyer was also listening.  We have to consider,
however, that affirmance of the criminal conviction would, in effect, mean that a caller
by merely using a telephone line can force the listener to secrecy no matter how
obscene, criminal, or annoying the call may be.  It would be the word of the caller
against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment

and the extra heavy loads which telephone cables are made to carry in certain areas,
telephone users often encounter what are called "crossed lines".  An unwary citizen who
happens to pick up his telephone and who overhears the details of a crime might
hesitate to inform police authorities if he knows that he could be accused under Rep.
Act 4200 of using his own telephone to secretly overhear the private communications of
the would be criminals.  Surely the law was never intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning
of the phrase "any other device or arrangement." Is an extension of a telephone unit
such a device or arrangement as would subject the user to imprisonment ranging from
six months to six years with the accessory penalty of perpetual absolute disqualification
for a public officer or deportation for an alien?  Private secretaries with extension lines
to their bosses' telephones are sometimes asked to use answering or recording devices
to record business conversations between a boss and another businessman.  Would
transcribing a recorded message for the use of the boss be a proscribed offense?  Or for
that matter, would a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the
enumeration of "commonly known" listening or recording devices, nor do they belong
to the same class of enumerated electronic devices contemplated by law.  He maintains
that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in
the Senate, telephones and extension telephones were already widely used
instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed
on the floor of the Senate.  Yet, when the bill was finalized into a statute, no mention
was made of telephones in the enumeration of devices "commonly known as a
dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however
otherwise described." The omission was not a mere oversight.  Telephone party lines
were intentionally deleted from the provision of the Act.

The respondent People argue that an extension telephone is embraced and covered by
the term "device" within the context of the aforementioned law because it is not a part
or portion of a complete set of a telephone apparatus.  It is a separate device and
distinct set of a movable apparatus consisting of a wire and a set of telephone receiver
not forming part of a main telephone set which can be detached or removed and can be
transferred away from one place to another and to be plugged or attached to a main
telephone line to get the desired communication coming from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for
the purpose of secretly overhearing, intercepting, or recording the communication. 
There must be either a physical interruption through a wiretap or the deliberate
installation of a device or arrangement in order to overhear, intercept, or record the
spoken words.

An extension telephone cannot be placed in the same category as a dictaphone,

dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use
thereof cannot be considered as "tapping" the wire or cable of a telephone line.  The
telephone extension in this case was not installed for that purpose.  It just happened to
be there for ordinary office use.  It is a rule in statutory construction that in order to
determine the true intent of the legislature, the particular clauses and phrases of the
statute should not be taken as detached and isolated expressions, but the whole and
every part thereof must be considered in fixing the meaning of any of its parts. 
(see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443-44), we ruled:

"Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a
contract may be, they shall not be understood to comprehend things that are distinct
and cases that are different from those upon which the parties intended to agree.'
Similarly, Article 1374 of the same Code provides that 'the various stipulations of a
contract shall be interpreted together, attributing to the doubtful ones that sense which
may result from all of them taken jointly.'

xxx                               xxx                               xxx

                

"Consequently, the phrase 'all liabilities or obligations of the decedent' used in

paragraphs 5(c) and 7(d) should be then restricted only to those listed in the Inventory
and should not be construed as to comprehend all other obligations of the decedent. 
The rule that 'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience that usually the
minds of parties are addressed specially to the particularization, and that the
generalities, though broad enough to comprehend other fields if they stood alone, are
used in contemplation of that upon which the minds of the parties are centered. 
(Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607; 115 NW 383, cited in
Francisco, Revised Rules of Court (Evidence), 1973 ed., pp. 180-181."

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not
exclusive to that enumerated therein, should be construed to comprehend instruments
of the same or similar nature, that is, instruments the use of which would be
tantamount to tapping the main line of a telephone.  It refers to instruments whose
installation or presence cannot be presumed by the party or parties being overheard
because by their very nature, they are not of common usage and their purpose is
precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when

the extended unit does not have to be connected by wire to the main telephone but can
be moved from place to place within a radius of a kilometer or more.  A person should
safely presume that the party he is calling at the other end of the line probably has an
extension telephone and he runs the risk of a third party listening as in the case of a
party line or a telephone unit which shares its line with another.  As was held in the case
of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

"Common experience tells us that a call to a particular telephone number may cause the
bell to ring in more than one ordinarily used instrument.  Each party to a telephone
conversation takes the risk that the other party may have an extension telephone and
may allow another to overhear the conversation.  When such takes place there has been
no violation of any privacy of which the parties may complain.  Consequently, one
element of 605, interception, has not occurred."

In the same case, the Court further ruled that the conduct of the party would differ in no
way if instead of repeating the message he held out his handset so that another could
hear out of it and that there is no distinction between that sort of action and permitting
an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor
of the accused.  Thus, in case of doubt as in the case at bar, on whether or not an
extension telephone is included in the phrase "device or arrangement", the penal
statute must be construed as not including an extension telephone.  In the case
of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

"American jurisprudence sets down the reason for this rule to be 'the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited.  (United States v.
Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d
646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v. Commonwealth, 109 Va 821,
63 SE 1080, all cited in 73 Am Jur 2d 452.) The purpose is not to enable a guilty person
to escape punishment through a technicality but to provide a precise definition of
forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on
Statutory Costruction, Rev. Ed. pp. 183-184)."

In the same case of Purisima, we also ruled that in the construction or interpretation of
a legislative measure, the primary rule is to search for and determine the intent and
spirit of the law.  A perusal of the Senate Congressional Records will show that not only
did our lawmakers not contemplate the inclusion of an extension telephone as a
prohibited "device or arrangement" but of greater importance, they were more
concerned with penalizing the act of recording than the act of merely listening to a
telephone conversation.

xxx                               xxx                               xxx

                                    

Senator Tanada.  Another possible objection to that is entrapment which is certainly

objectionable.  It is made possible by special amendment which Your Honor may
introduce.

Senator Diokno.  Your Honor, I would feel that entrapment would be less possible with
the amendment than without it, because with the amendment the evidence of
entrapment would only consist of government testimony as against the testimony of the
defendant.  With this amendment, they would have the right, and the government
officials and the person in fact would have the right to tape record their conversation.

Senator Tanada.  In case of entrapment, it would be the government.

Senator Diokno.  In the same way, under this provision, neither party could record and,
therefore, the court would be limited to saying:  "Okay, who is more credible, the police
officers or the defendant?" In these cases, as experienced lawyers, we know that the
Court go with the peace offices.

(Congressional Record, Vol. III, No. 33, p. 628, March 12, 1964).

xxx                               xxx                               xxx

       
Senator Diokno.  The point I have in mind is that under these conditions, with an agent
outside listening in, he could falsify the testimony and there is no way of checking it. 
But if you allow him to record or make a recording in any form of what is happening,
then the chances of falsifying the evidence is not very much.

Senator Tanada.  Your Honor, this bill is not intended to prevent the presentation of
false testimony.  If we could devise a way by which we could prevent the presentation
of false testimony, it would be wonderful.  But what this bill intends to prohibit is the
use of tape record and other electronic devices to intercept private conversations which
later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment,
persons such as government authorities or representatives of organized groups from
installing devices in order to gather evidence for use in court or to intimidate, blackmail
or gain some unwarranted advantage over the telephone users.  Consequently, the
mere act of listening, in order to be punishable must strictly be with the use of the
enumerated devices in RA No. 4200 or others of similar nature.  We are of the view that
an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED.  The decision of the then Intermediate Appellate
Court dated August 16, 1984 is ANNULLED and SET ASIDE.  The petitioner is hereby
ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-
Wiretapping Act.

SO ORDERED.

Feria (Chairman), Fernan, Alampay, and Paras, JJ., concur.

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  iii. Exclusionary rule (Sec. 3(2), Art. III)

1. Zulueta vs. CA, 253 SCRA 699

324 Phil. 63

SECOND DIVISION

[ G.R. No. 107383, February 20, 1996 ]

CECILIA ZULUETA, PETITIONER, VS. COURT OF APPEALS AND ALFREDO MARTIN,

RESPONDENTS.

DECISION

MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of
the Regional Trial Court of Manila (Branch X) which ordered petitioner to return
documents and papers taken by her from private respondent’s clinic without the latter’s
knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and private respondent’s secretary, forcibly opened
the drawers and cabinet in her husband’s clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martin’s passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her
husband.

Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila,
Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo
Martin, declaring him “the capital/exclusive owner of the properties described in
paragraph 3 of plaintiff’s Complaint or those further described in the Motion to Return
and Suppress” and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal
damages; P5,000.00, as moral damages and attorney’s fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from “using or
submitting/admitting as evidence” the documents and papers in question. On appeal,
the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.

There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court declared
the documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial court’s decision,
petitioner’s only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,[1] this Court ruled
that the documents and papers (marked as Annexes A-i to J-7 of respondent’s comment
in that case) were admissible in evidence and, therefore, their use by petitioner’s
attorney, Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this
reason it is contended that the Court of Appeals erred in affirming the decision of the
trial court instead of dismissing private respondent’s complaint.

Petitioner’s contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that
case, charged that in using the documents in evidence, Atty. Felix, Jr. committed
malpractice or gross misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of the following
defense of Atty. Felix, Jr. which it found to be “impressed with merit:”[2]

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:  

xxx   xxx   xxx

4. When respondent refiled Cecilia’s case for legal separation before the Pasig Regional
Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex “A-I to J-7.” On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued
a restraining order on aforesaid date which order temporarily set aside the order of the
trial court. Hence, during the enforceability of this Court’s order, respondent’s request
for petitioner to admit the genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth
and authenticity of the questioned annexes. At that point in time, would it have been
malpractice for respondent to use petitioner’s admission as evidence against him in the
legal separation case pending in the Regional Trial Court of Makati? Respondent submits
it is- not malpractice. 

Significantly, petitioner’s admission was done not thru his counsel but by Dr. Martin
himself under oath. Such verified admission constitutes an affidavit, and, therefore,
receivable in evidence against him. Petitioner became bound by his admission. For
Cecilia to avail herself of her husband’s admission and use the same in her action for
legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than
a declaration that his use of the documents and papers for the purpose of securing Dr.
Martin’s admission as to their genuiness and authenticity did not constitute a violation
of the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of
violating the writ of preliminary injunction issued by the trial court, it was only because,
at the time he used the documents and papers, enforcement of the order of the trial
court was temporarily restrained by this Court. The TRO issued by this Court was
eventually lifted as the petition for certiorari filed by petitioner against the trial court’s
order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring “the privacy of communication and correspondence
[to be] inviolable”[3] is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husband’s infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if
there is a “lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law.”[4] Any violation of this provision renders the evidence obtained
inadmissible “for any purpose in any proceeding.”[5]
The intimacies between husband and wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking them for any telltale evidence of
marital infidelity. A person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection is ever available to
him or to her.

The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the
consent of the affected spouse while the marriage subsists.[6] Neither may be examined
without the consent of the other as to any communication received in confidence by
one from the other during the marriage, save for specified exceptions.[7] But one thing is
freedom of communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity that each
owes to the other.

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

SO ORDERED.

Regalado (Chairman), Romero,  and Puno, JJ., concur.

[1]
 163 SCRA 111(1988).

[2]
 Id.  at 120-121, 126.
[3]
 1973 CONST., Art. IV, §4(1); 1987 CONST., Art. III, §3(1).
[4]
  Id.
[5]
 1973 CONST., ART. IV, §4(2); 1987 CONST., Art. III, 3 §(2).
[6]
 Rule 130, §22.
[7]
 Rule 130, §24.

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  iii. Exclusionary rule (Sec. 3(2), Art. III)
2.      Waterous Drug Corp. vs. NLRC, October 16, 1997

345 Phil. 983

FIRST DIVISION

[ G.R. No. 113271, October 16, 1997 ]

WATEROUS DRUG CORPORATION AND MS. EMMA CO, PETITIONERS, VS. NATIONAL
LABOR RELATIONS COMMISSION AND ANTONIA MELODIA CATOLICO, RESPONDENTS.
DECISION

DAVIDE, JR. J.:

This petition for certiorari  under Rule 65 of the Rules of Court seeks to declare private
respondent Antonia Melodia Catolico (hereafter Catolico) not a “true Servant,” thereby
assailing the 30 September 1993 decision[2] and 2 December 1993 Resolution[3] of the
National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which
sustained the reinstatement and monetary awards in favor of private respondent[4] and
denied the petitioners’ motion for reconsideration.[5]

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter

WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum[6] from WATEROUS Vice President-

General Manager Emma R. Co warning her not to dispense medicine to employees
chargeable to the latter’s accounts because the same was a prohibited practice. On the
same date, Co issued another memorandum[7] to Catolico warning her not to negotiate
with suppliers of medicine without consulting the Purchasing Department, as this would
impair the company’s control of purchases and, besides she was not authorized to deal
directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained
that her act was “due to negligence,” since fellow employee Irene Soliven “obtained the
medicines in bad faith and through misrepresentation when she claimed that she was
given a charge slip by the Admitting Dept.” Catolico then asked the company to look into
the fraudulent activities of Soliven.[8]

In a memorandum[9] dated 21 November 1989, WATEROUS Supervisor Luzviminda E.

Bautro warned Catolico against the “rush delivery of medicines without the proper
documents.”

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he

noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter
YSP), which he described as follows:

… A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with
YSP Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at
P384.00 per unit. Previous P.O.s issued to YSP, Inc. showed that the price per bottle is
P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle
(or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832
dated December 15, 1988. Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc.
Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents
refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per
their check voucher no. 629552 (shown to the undersigned), which was paid to Ms.
Catolico through China Bank check no. 892068 dated November 9, 1989....

The undersigned talked to Ms. Catolico regarding the check but she denied having
received it and that she is unaware of the overprice. However, upon conversation with
Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to
P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms. Catolico even
asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana
answered her “talagang ganyan, bukas.” It appears that the amount in question
(P640.00) had been pocketed by Ms. Catolico.[10]

Forthwith, in her memorandum[11] dated 31 January 1990, Co asked Catolico to explain,

within twenty-four hours, her side of the reported irregularity. Catolico asked for
additional time to give her explanation,[12] and she was granted a 48-hour extension
from 1 to 3 February 1990. However, on 2 February 1990, she was informed that
effective 6 February 1990 to 7 March 1990, she would be placed on preventive
suspension to protect the interests of the company.[13]

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales
Invoice No. 266 for her to be able to make a satisfactory explanation. In said letter she
protested Saldaña’s invasion of her privacy when Saldaña opened an envelope
addressed to Catolico.[14]

In a letter[15] to Co dated 10 February 1990, Catolico, through her counsel, explained that
the check she received from YSP was a Christmas gift and not a “refund of overprice.”
She also averred that the preventive suspension was ill-motivated, as it sprang from an
earlier incident between her and Co’s secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a

memorandum[16] notifying Catolico of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and
Feb. 10, 1990 respectively regarding our imposition of preventive suspension on you for
acts of dishonesty. However, said letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist stationed at Espana Branch, you
actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at
P384.00/bottle with previous price of P320.00/bottle only. A check which you received
in the amount of P640.00 actually represents the refund of over price of said medicines
and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the

company. Accordingly, you are hereby terminated effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for
unfair labor practice, illegal dismissal, and illegal suspension.[17]

In his decision[18] of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of
unfair labor practice against petitioners. Nevertheless, he decided in favor of Catolico
because petitioners failed to “prove what [they] alleged as complainant’s dishonesty,”
and to show that any investigation was conducted. Hence, the dismissal was without
just cause and due process. He thus declared the dismissal and suspension illegal but
disallowed reinstatement, as it would not be to the best interest of the parties.
Accordingly, he awarded separation pay to Catolico computed at one-half month’s pay
for every year of service; back wages for one year; and the additional sum of P2,000.00
for illegal suspension “representing 30 days work.” Arbiter Lopez computed the award
in favor of Catolico as follows:

30 days Preventive Suspension P 2,000.00

Backwages 26,858.50

1/12 of P26,858.50 2,238.21

Separation pay (3 years) 4,305.15

TOTAL AWARD: P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside
because the Labor Arbiter erred in finding that Catolico was denied due process and
that there was no just cause to terminate her services.

In its decision[19] of 30 September 1993, the NLRC affirmed the findings of the Labor
Arbiter on the ground that petitioners were not able to prove a just cause for Catolico’s
dismissal from her employment. It found that petitioner’s evidence consisted only of the
check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible in
evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution.[20] It
concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue
of the constitutional right invoked by complainants, respondents’ case falls apart as it is
bereft of evidence which cannot be used as a legal basis for complainant’s dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive
portion of the appealed decision by deleting the award for illegal suspension as the
same was already included in the computation of the aggregate of the awards in the
amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil
action for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987
Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving
“commissions” from YSP, or probably from other suppliers, and that the check issued to
her on 9 November 1989 was not the first or the last. They also maintained that Catolico
occupied a confidential position and that Catolico’s receipt of YSP’s check, aggravated by
her “propensity to violate company rules,” constituted breach of confidence. And
contrary to the findings of NLRC, Catolico was given ample opportunity to explain her
side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v.
Marti,[21] the constitutional protection against unreasonable searches and seizures refers
to the immunity of one’s person from interference by government and cannot be
extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG)
disagreed with the NLRC's decision, as it was of the persuasion that (a) the conclusions
reached by public respondent are inconsistent with its findings of fact; and (b) the
incident involving the opening of envelope addressed to private respondent does not
warrant the application of the constitutional provisions. It observed that Catolico was
given “several opportunities” to explain her side of the check controversy, and
concluded that the opportunities granted her and her subsequent explanation “satisfy
the requirements of just cause and due process.” The OSG was also convinced that
Catolico’s dismissal was based on just cause and that Catolico’s admission of the
existence of the check, as well as her “lame excuse” that it was a Christmas gift from
YSP, constituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners’
argument that there was no violation of the right of privacy of communication in this
case,[22] adding that petitioner WATEROUS was justified in opening an envelope from
one of its regular suppliers as it could assume that the letter was a business
communication in which it had an interest.
In its Comment which we required to be filed in view of the adverse stand of the OSG,
the NLRC contends that petitioners miserably failed to prove their claim that it
committed grave abuse of discretion in its findings of fact. It then prays that we dismiss
this petition.

In her Comment, Catolico asserts that petitioners’ evidence is too “flimsy” to justify her
dismissal. The check in issue was given to her, and she had no duty to turn it over to her
employer. Company rules do not prohibit an employee from accepting gifts from clients,
and there is no indication in the contentious check that it was meant as a refund for
overpriced medicines. Besides, the check was discovered in violation of the
constitutional provision on the right to privacy and communication; hence, as correctly
held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners’ claim that the audit report and her initial
response that she never received a check were sufficient to justify her dismissal. When
she denied having received a check from YSP, she meant that she did not receive any
refund of overprice, consistent with her position that what she received was a token
gift. All that can be gathered from the audit report is that there was apparently an
overcharge, with no basis to conclude that Catolico pocketed the amount in collusion
with YSP. She thus concluded that her dismissal was based on a mere suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of
WATEROUS because, being merely a pharmacist, she did not handle “confidential
information or sensitive properties.” She was doing the task of a saleslady: selling drugs
and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to
the third ground, the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an
employee be apprised of the charge against him, given reasonable time to answer the
charge, allowed ample opportunity to be heard and defend himself, and assisted by a
representative if the employee so desires.[23] Ample opportunity connotes every kind of
assistance that management must accord the employee to enable him to prepare
adequately for his defense, including legal representation.[24]

In the case at bar, although Catolico was given an opportunity to explain her side, she
was dismissed from the service in the memorandum of 5 March 1990 issued by her
Supervisor after receipt of her letter and that of her counsel. No hearing was ever
conducted after the issues were joined through said letters. The Supervisor’s
memorandum spoke of “evidences [sic] in [WATEROUS] possession,” which were not,
however, submitted. What the “evidences” [sic] other than the sales invoice and the
check were, only the Supervisor knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the employer to
prove just and valid cause for dismissing an employee, and its failure to discharge that
burden would result in a finding that the dismissal is unjustified.[25] Here, WATEROUS
proved unequal to the task.

It is evident from the Supervisor’s memorandum that Catolico was dismissed because of
an alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence
does not establish that there was an overcharge. Control Clerk Eugenio C. Valdez, who
claims to have discovered Catolico’s inappropriate transaction, stated in his affidavit:[26]

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in
violation of the [company] procedure, made an under the table deal with YSP Phils. to
supply WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per
bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that
the cost per bottle was indeed overpriced. The Accounting Department of YSP Phils.
through Ms. Estelita Reyes confirmed that there was really an overprice and she said
that the difference was refunded through their check voucher no. 629552 which was
shown to me and the payee is Melodia Catolico, through a China Bank Check No.
892068 dated November 9, 1989.

It clearly appears then that Catolico’s dismissal was based on hearsay information.
Estelita Reyes never testified nor executed an affidavit relative to this case; thus, we
have to reject the statements attributed to her by Valdez. Hearsay evidence carries no
probative value.[27]

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez
informed Co, through the former’s memorandum[28] of 29 January 1990, that
WATEROUS paid YSP P3,840.00 “thru MBTC Check No. 222832,” the said check was
never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not
indicate an overcharge. The purchase order dated 16 August 1989[29] stated that the
Voren tablets cost P320.00 per box, while the purchase order dated 5 October
1989[30] priced the Voren tablets at P384.00 per bottle. The difference in price may then
be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets
were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M.
Lopez and approved by Vice President-General Manager Emma R. Co. The purchase
orders were silent as to Catolico’s participation in the purchase. If the price increase was
objectionable to petitioners, they or their officers should have disapproved the
transaction. Consequently, petitioners had no one to blame for their predicament but
themselves. This set of facts emphasizes the exceedingly incredible situation proposed
by petitioners. Despite the memorandum warning Catolico not to negotiate with
suppliers of medicine, there was no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again, as the purchase orders indicate,
Catolico was not at all involved in the sale of the Voren tablets. There was no occasion
for Catolico to initiate, much less benefit from, what Valdez called an “under the table
deal” with YSP.

Catolico’s dismissal then was obviously grounded on mere suspicion, which in no case
can justify an employee’s dismissal. Suspicion is not among the valid causes provided by
the Labor Code for the termination of employment;[31] and even the dismissal of an
employee for loss of trust and confidence must rest on substantial grounds and not on
the employer’s arbitrariness, whims, caprices, or suspicion.[32] Besides, Catolico was not
shown to be a managerial employee, to which class of employees the term “trust and
confidence” is restricted.[33]

As regards the constitutional violation upon which the NLRC anchored its decision, we
find no reason to revise the doctrine laid down in People vs. Marti[34] that the Bill of
Rights does not protect citizens from unreasonable searches and seizures perpetrated
by private individuals. It is not true, as counsel for Catolico claims, that the citizens have
no recourse against such assaults. On the contrary, and as said counsel admits, such an
invasion gives rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico’s reinstatement
would not be to the best interest of the parties, he correctly awarded separation pay to
Catolico. Separation pay in lieu of reinstatement is computed at one month’s salary for
every year of service.[35] In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half month’s salary for every year of service. Catolico did not
oppose or raise an objection. As such, we will uphold the award of separation pay as
fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and

resolution of the National Labor Relations Commission dated 30 September 1993 and 2
December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as
to its reason for upholding the Labor Arbiter’s decision, viz., that the evidence against
private respondent was inadmissible for having been obtained in violation of her
constitutional rights of privacy of communication and against unreasonable searches
and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.
Bellosillo, Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[1]
 WILLIAM PENN, More Fruits of Solitude, maxim 209, in I Harvard Classics 389 (Charles
W. Eliot ed., 1937).

[2]
 Per Commissioner Rogelio I. Rayala, with Commissioners Domingo H. Zapanta and
Edna Bonto-Perez, concurring. Original Record (OR), unpaginated; Annex “A” of Petition,
Rollo, 25-36.

[3]
 OR, 86-92; Annex “J” of Petition, Rollo, 96-102.

[4]
 OR, unpaginated.

[5]
 Id.

[6]
 OR, 15.

[7]
 Id., 16.

[8]
 Id., 60.

[9]
 Id., 17.

[10]
 OR, 18.

[11]
 Id., 19.

[12]
 Id., 32.

[13]
 Id., 20.

[14]
 Id., 21.

[15]
 Id., 35.

[16]
 OR, 36.

[17]
 Id., 2.

[18]
 Supra note 3.
[19]
 Supra note 2.

[20]
 These sections pertinently provide as follows:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the Court, or when public safety or order requires otherwise as
prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

[21]
 193 SCRA 57 [1991].

[22]
 Citing People v. Marti, supra note 21.

[23]
 Tiu v. NLRC, 215 SCRA 540, 551 [1992].

[24]
 Mañebo v. NLRC, 229 SCRA 240, 251 [1994].

[25]
 Reno Foods, Inc. v. NLRC, 249 SCRA 379, 386 [1995]; Metro Transit Organization, Inc. v.
NLRC, G.R. No. 121574, 17 October 1996, 5-6.

[26]
 Rollo, 71-72.

[27]
 People v. Laurente, 255 SCRA 543, 567 [1996]; Batiquin v. Court of Appeals, 258 SCRA
334, 342 [1996].

[28]
 OR, 18.

[29]
 Annex “A” of Petitioner’s Reply to Complainant’s Position Paper, OR, 42.

[30]
 Annex “B,” id., id., 43.

[31]
 See Labor Code, Art. 282.
[32]
 Falguera v. Linsangan, 251 SCRA 364, 376 [1995]; De la Cruz v. NLRC, G.R. No. 119536,
17 February 1997, 7.

[33]
 Marina Port Services, Inc. v. NLRC, 193 SCRA 420, 425 [1991]; De la Cruz v. NLRC, supra
note 32, at 7.

[34]
 Supra note 21.

[35]
 Reformist Union of R.B. Liner, Inc. v. NLRC, G.R. No. 120482, 27 January 1997, 9; De la
Cruz v. NLRC, supra note 31, at 8.

Source: Supreme Court E-Library | Date created: October 01, 2014

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B.    Freedom of Expression (Sec. 4, Art. III, Sec. 18(1), Art. III)

i.        Concept and Scope
ii.      Aspects
1.      Freedom from censorship and prior restraint
a.      Grosjean vs. American Press, 297 US 233
b.      Chavez vs. Secretary Gonzales, February 15, 2008
c.        Adiong vs. COMELEC, 207 SCRA 712
d.      Osmena vs. COMELEC, March 31, 1998
e.       MTRCB vs. ABS-CBN, January 17, 2006
f.        ABS-CBN vs. COMELEC, January 28, 2000
g.       SWS vs. COMELEC, May 5, 2001
h.      Chavez vs. COMELEC, 437 SCRA 415
2.      Freedom from subsequent punishment
a.      Alonzo vs. CA, February 1, 1996
b.     Art. 353, RPC
c.        Pita vs. Court of Appeals, 178 SCRA 362
3.      Test of valid government interference
a.      Clear and present danger
a.i.        Viva Production vs. CA, March 13, 1997
 a.ii.       INC vs. CA, 259 SCRA 529
a.iii.     JBL Reyes vs. Bagatsing, 125 SCRA 533
a.iv.    Osmena v. COMELEC, 288 SCRA 447, March 31,
1998 (Content based restrictions and Content Neutral
Restrictions)
a. v.    Social Weather Stations, Inc. v COMELEC, G.R.
No. 147571, May 5, 2001
b.  Dangerous tendency rule
          b.i.        Cabansag vs. Fernandez, 102 Phil. 152
c.  Balancing of interest
          c.i.        Ayer vs. Capulong, 160 SCRA 861
4.  “Facial challenge” and “overbreadth” doctrine
a.  David vs. Arroyo, supra.
b.  Disini vs. Secretary of Justice, February 11, 2014
c.    Imbong vs. Ochoa, April 8, 2014
5.  Hecker’s veto

1.      Freedom from censorship and prior restraint

a.      Grosjean vs. American Press, 297 US 233

( This is the only case in pdf form. Please see separate file.
Thank you.)
1.            Freedom from censorship and prior restraint
b.            Chavez vs. Secretary Gonzales, February 15, 2008

569 Phil. 155

EN BANC

[ G.R. No. 168338, February 15, 2008 ]

FRANCISCO CHAVEZ, PETITIONER, VS. RAUL M. GONZALES, IN HIS CAPACITY AS THE

SECRETARY OF THE DEPARTMENT OF JUSTICE; AND NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), RESPONDENTS.

DECISION

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 Malacañang 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 President’s 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 country’s 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]

o § 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.

o § 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.

o § What is being asked by NTC is that the exercise of press freedom [be]
done responsibly.

o § 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.

o § The KBP Codes also require that no false statement or willful

misrepresentation is made in the treatment of news or commentaries.

o § 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
of certiorari 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 public’s 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
petitioner’s 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 NTC’s 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 forward—neither 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 Speech

From 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 jurisprudence—whether here or abroad—
will 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 approach—somewhere
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 object—a 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 that—as 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 the Anti-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 media’s 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
expression—in terms of diversity—comes 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 that restricts freedom of speech or of the press based on content is given
the strictest scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality 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 who’s and the how’s
of the wiretapping act is ambivalent, especially considering the tape’s 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 person’s 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.

Ynares-Santiago and Reyes, JJ., concur.

Sandoval-Gutierrez, J., see separate cocurring opinion.
Carpio, J., see separate concurring opinion.
Austria-Martinez and Carpio Morales, JJ., joins the separate concurring opinion
of J. Carpio.
Azcuna, J., concurs in a separate opinion.
Quisumbing, J., concurs in the result and joins in the separate concurring opinion
of J. Carpio.
Tinga, J., see separate opinion (dissenting and concurring).
Velasco, Jr., J., see separate concurring and dissenting opinion.
Corona, J., joins the dissent of J. Nachura.
Chico-Nazario, J., see separate dissenting opinion.
Nachura, J., see dissenting opinion.
Leonardo-de Castro, J., joins the dissent of J. Nazario and J. Nachura.

[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, 562–563; and Agan v. PIATCO (Decision), 450 Phil.
744 (2003).

[20]
 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmeña 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; Osmeña 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 law…abridging 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 one’s
liability under civil and criminal laws. The publisher, editor, columnist or duly accredited
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 is censorship. Other ways include requiring
a permit or license for the distribution of media and penalizing dissemination of copies
made without it; 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 Osmeña 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 Osmeña 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]
 Osmeña 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. O’Brien, 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 Osmeña 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 Osmeña v. COMELEC, 351 Phil. 692, 718 (1998) (speech restrictions to
promote voting rights). The Court in Osmeña 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.

SEPARATE CONCURRING OPINION

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and prohibition to set aside “acts, issuances,
and orders” of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales)
and the National Telecommunications Commission (NTC), particularly an NTC “press
release” dated 11 June 2005, warning radio and television stations against airing taped
conversations allegedly between President Gloria Macapagal-Arroyo and Commission
on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano)[1] under pain of
suspension or revocation of their airwave licenses.

The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President

Arroyo winner in the 2004 presidential elections.[2] President Arroyo received a total of
12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr.
Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the
parties to the conversation discussed “rigging” the results of the 2004 elections to favor
President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye)
held a press conference in Malacañang Palace, where he played before the presidential
press corps two compact disc recordings of conversations between a woman and a man.
Bunye identified the woman in both recordings as President Arroyo but claimed that the
contents of the second compact disc had been “spliced” to make it appear that
President Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the
compact discs was not President Arroyo’s after all.[3] Meanwhile, other individuals went
public, claiming possession of the genuine copy of the Garci Tapes.[4] Respondent
Gonzalez ordered the National Bureau of Investigation to investigate media
organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200
or the Anti-Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations
that airing the Garci Tapes is a “cause for the suspension, revocation and/or cancellation
of the licenses or authorizations” issued to them.[5] On 14 June 2005, NTC officers met
with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press
statement expressing commitment to press freedom.[6]
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition
to nullify the “acts, issuances, and orders” of the NTC and respondent Gonzalez
(respondents) on the following grounds: (1) respondents’ conduct violated freedom of
expression and the right of the people to information on matters of public concern
under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it
warned radio and television stations against airing the Garci Tapes.

In their Comment to the petition, respondents raised threshold objections that (1)
petitioner has no standing to litigate and (2) the petition fails to meet the case or
controversy requirement in constitutional adjudication. On the merits, respondents
claim that (1) the NTC's press release of 11 June 2005 is a mere “fair warning,” not
censorship, cautioning radio and television networks on the lack of authentication of the
Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the
NTC did not act ultra vires in issuing the warning to radio and television stations.

In his Reply, petitioner belied respondents' claim on his lack of standing to litigate,
contending that his status as a citizen asserting the enforcement of a public right vested
him with sufficient interest to maintain this suit. Petitioner also contests respondents'
claim that the NTC press release of 11 June 2005 is a mere warning as it already
prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law,
making it a “cleverly disguised x x x gag order.”

ISSUE

The principal issue for resolution is whether the NTC warning embodied in the press
release of 11 June 2005 constitutes an impermissible prior restraint on freedom of
expression.

I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press
release dated 11 June 2005, an unconstitutional prior restraint on protected expression,
and (3) enjoin the NTC from enforcing the same.

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of
expression, as in the present case, any citizen has the right to bring suit to question the
constitutionality of a government action in violation of freedom of expression, whether
or not the government action is directed at such citizen. The government action may
chill into silence those to whom the action is directed. Any citizen must be allowed to
take up the cudgels for those who have been cowed into inaction because freedom of
expression is a vital public right that must be defended by everyone and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and

democratic society, is of transcendental importance that must be defended by every
patriotic citizen at the earliest opportunity. We have held that any concerned citizen has
standing to raise an issue of transcendental importance to the nation,[7] and petitioner in
this present petition raises such issue.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society.
Freedom of expression is an indispensable condition[8] to the exercise of almost all other
civil and political rights. No society can remain free, open and democratic without
freedom of expression. Freedom of expression guarantees full, spirited, and even
contentious discussion of all social, economic and political issues. To survive, a free and
democratic society must zealously safeguard freedom of expression.

Freedom of expression allows citizens to expose and check abuses of public officials.
Freedom of expression allows citizens to make informed choices of candidates for public
office. Freedom of expression crystallizes important public policy issues, and allows
citizens to participate in the discussion and resolution of such issues. Freedom of
expression allows the competition of ideas, the clash of claims and counterclaims, from
which the truth will likely emerge. Freedom of expression allows the airing of social
grievances, mitigating sudden eruptions of violence from marginalized groups who
otherwise would not be heard by government. Freedom of expression provides a
civilized way of engagement among political, ideological, religious or ethnic opponents
for if one cannot use his tongue to argue, he might use his fist instead.

Freedom of expression is the freedom to disseminate ideas and beliefs, whether

competing, conforming or otherwise. It is the freedom to express to others what one
likes or dislikes, as it is the freedom of others to express to one and all what they favor
or disfavor. It is the free expression for the ideas we love, as well as the free expression
for the ideas we hate.[9] Indeed, the function of freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech
is often provocative and challenging. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an idea.[10]
Section 4, Article III of the Constitution prohibits the enactment of any law curtailing
freedom of expression:
No law shall be passed abridging the freedom of speech, of expression, or the press, or
the right of the people peaceably to assemble and petition the government for redress
of grievances.
Thus, the rule is that expression is not subject to any prior restraint or
censorship because the Constitution commands that freedom of expression shall not be
abridged. Over time, however, courts have carved out narrow and well defined
exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this

jurisdiction to only four categories of expression, namely: pornography,[11] false or
misleading advertisement,[12] advocacy of imminent lawless action,[13] and danger to
national security.[14] All other expression is not subject to prior restraint. As stated
in Turner Broadcasting System v. Federal Communication Commission, “[T]he First
Amendment (Free Speech Clause), subject only to narrow and well understood
exceptions, does not countenance governmental control over the content of messages
expressed by private individuals.”[15]

Expression not subject to prior restraint is protected expression or high-value

expression. Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it says – it is
absolutely protected from censorship. Thus, there can be no prior restraint on public
debates on the amendment or repeal of existing laws, on the ratification of treaties, on
the imposition of new tax measures, or on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or

idea of the expression. Courts will subject to strict scrutiny content-based restraint. If
the content-based prior restraint is directed at protected expression, courts will strike
down the restraint as unconstitutional because there can be no content-based prior
restraint on protected expression. The analysis thus turns on whether the prior restraint
is content-based, and if so, whether such restraint is directed at protected expression,
that is, those not falling under any of the recognized categories of unprotected
expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-
neutral even if it burdens expression. A content-neutral restraint is a restraint which
regulates the time, place or manner of the expression in public places[16] without any
restraint on the content of the expression. Courts will subject content-neutral restraints
to intermediate scrutiny.[17]

An example of a content-neutral restraint is a permit specifying the date, time and route
of a rally passing through busy public streets. A content-neutral prior restraint on
protected expression which does not touch on the content of the expression enjoys the
presumption of validity and is thus enforceable subject to appeal to the courts.[18] Courts
will uphold time, place or manner restraints if they are content-neutral, narrowly
tailored to serve a significant government interest, and leave open ample alternative
channels of expression.[19]

In content-neutral prior restraint on protected speech, there should be no prior

restraint on the content of the expression itself. Thus, submission of movies or pre-
taped television programs to a government review board is constitutional only if the
review is for classification and not for censoring any part of the content of the submitted
materials.[20] However, failure to submit such materials to the review board may be
penalized without regard to the content of the materials.[21] The review board has no
power to reject the airing of the submitted materials. The review board’s power is only
to classify the materials, whether for general patronage, for adults only, or for some
other classification. The power to classify expressions applies only to movies and pre-
taped television programs[22] but not to live television programs. Any classification of live
television programs necessarily entails prior restraint on expression.

Expression that may be subject to prior restraint is unprotected expression or low-value

expression. By definition, prior restraint on unprotected expression is content-
based[23] since the restraint is imposed because of the content itself. In this jurisdiction,
there are currently only four categories of unprotected expression that may be subject
to prior restraint. This Court recognized false or misleading advertisement as
unprotected expression only in October 2007.[24]

Only unprotected expression may be subject to prior restraint. However, any such prior
restraint on unprotected expression must hurdle a high barrier. First, such prior
restraint is presumed unconstitutional. Second, the government bears a heavy burden
of proving the constitutionality of the prior restraint.[25]

Courts will subject to strict scrutiny any government action imposing prior restraint on
unprotected expression.[26] The government action will be sustained if there is a
compelling State interest, and prior restraint is necessary to protect such State interest.
In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary
to protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent

punishment. Although subsequent punishment also deters expression, still the ideas are
disseminated to the public. Prior restraint prevents even the dissemination of ideas to
the public.

While there can be no prior restraint on protected expression, such expression may be
subject to subsequent punishment,[27] either civilly or criminally. Thus, the publication of
election surveys cannot be subject to prior restraint,[28] but an aggrieved person can sue
for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)
(3) of the Revised Penal Code punishing “shows which offend any race or religion”
cannot be used to justify prior restraint on religious expression, this provision can be
invoked to justify subsequent punishment of the perpetrator of such offensive shows.[29]

Similarly, if the unprotected expression does not warrant prior restraint, the same
expression may still be subject to subsequent punishment, civilly or criminally. Libel falls
under this class of unprotected expression. However, if the expression cannot be subject
to the lesser restriction of subsequent punishment, logically it cannot also be subject to
the more severe restriction of prior restraint. Thus, since profane language or “hate
speech” against a religious minority is not subject to subsequent punishment in this
jurisdiction,[30] such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression
is subject to subsequent punishment. There must be a law punishing criminally the
unprotected expression before prior restraint on such expression can be justified. The
legislature must punish the unprotected expression because it creates a substantive evil
that the State must prevent. Otherwise, there will be no legal basis for imposing a prior
restraint on such expression.

The prevailing test in this jurisdiction to determine the constitutionality of government

action imposing prior restraint on three categories of unprotected expression –
pornography,[31] advocacy of imminent lawless action, and danger to national security -
is the clear and present danger test.[32] The expression restrained must present a clear
and present danger of bringing about a substantive evil that the State has a right and
duty to prevent, and such danger must be grave and imminent.[33]

Prior restraint on unprotected expression takes many forms - it may be a law,

administrative regulation, or impermissible pressures like threats of revoking licenses or
withholding of benefits.[34] The impermissible pressures need not be embodied in a
government agency regulation, but may emanate from policies, advisories or conduct of
officials of government agencies.
3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or
broadcasting of the Garci Tapes by radio and television stations is a “cause for the
suspension, revocation and/or cancellation of the licenses or authorizations” issued to
radio and television stations. The NTC warning, embodied in a press release, relies on
two grounds. First, the airing of the Garci Tapes “is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to radio and TV stations.” Second, the Garci Tapes have not been
authenticated, and subsequent investigation may establish that the tapes contain false
information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning:
Taking into consideration the country’s unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
networks owners/operators that the conditions of the authorizations and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use its stations for the broadcasting or
telecasting of false information or willful misrepresentation. Relative thereto, it has
come to the attention of the Commission that certain personalities are in possession of
alleged taped conversation which they claim, (sic) involve the President of the
Philippines and a Commissioner of the COMELEC regarding their supposed violation of
election laws. These personalities have admitted that the taped conversations are
product 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, (sic) it is the position of the Commission 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. If it has been (sic) 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. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected
expression that may be subject to prior restraint. The NTC does not specify what
substantive evil the State seeks to prevent in imposing prior restraint on the airing of
the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes
constitutes a clear and present danger of a substantive evil, of grave and imminent
character, that the State has a right and duty to prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of the
Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. At the time
of issuance of the NTC press release, and even up to now, the parties to the
conversations in the Garci Tapes have not complained that the wire-tapping was
without their consent, an essential element for violation of the Anti-Wiretapping Law.
[35]
 It was even the Office of the President, through the Press Secretary, that played and
released to media the Garci Tapes containing the alleged “spliced” conversation
between President Arroyo and Commissioner Garcillano. There is also the issue of
whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci
Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television
stations were not even given an opportunity to be heard by the NTC. The NTC did not
observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.[36]

The NTC claims that the Garci Tapes, “after a prosecution or the appropriate
investigation,” may constitute “false information and/or willful misrepresentation.”
However, the NTC does not claim that such possible false information or willful
misrepresentation constitutes misleading commercial advertisement. In the United
States, false or deceptive commercial speech is categorized as unprotected expression
that may be subject to prior restraint. Recently, this Court upheld the constitutionality
of Section 6 of the Milk Code requiring the submission to a government screening
committee of advertising materials for infant formula milk to prevent false or deceptive
claims to the public.[37] There is, however, no claim here by respondents that the Garci
Tapes constitute false or misleading commercial advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or
truthful. The NTC also concedes that only “after a prosecution or appropriate
investigation” can it be established that the Garci Tapes constitute “false information
and/or willful misrepresentation.” Clearly, the NTC admits that it does not even know if
the Garci Tapes contain false information or willful misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior
restraint because it is directed at the message of the Garci Tapes. The NTC’s claim that
the Garci Tapes might contain “false information and/or willful misrepresentation,” and
thus should not be publicly aired, is an admission that the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall
under any of the four existing categories of unprotected expression recognized in this
jurisdiction. The airing of the Garci Tapes is essentially a political expression because it
exposes that a presidential candidate had allegedly improper conversations with a
COMELEC Commissioner right after the close of voting in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot.
Public discussion on the sanctity of the ballot is indisputably a protected expression that
cannot be subject to prior restraint. Public discussion on the credibility of the electoral
process is one of the highest political expressions of any electorate, and thus deserves
the utmost protection. If ever there is a hierarchy of protected expressions, political
expression would occupy the highest rank,[38] and among different kinds of political
expression, the subject of fair and honest elections would be at the top. In any event,
public discussion on all political issues should always remain uninhibited, robust and
wide open.

The rule, which recognizes no exception, is that there can be no content-based prior
restraint on protected expression. On this ground alone, the NTC press release is
unconstitutional. Of course, if the courts determine that the subject matter of a
wiretapping, illegal or not, endangers the security of the State, the public airing of the
tape becomes unprotected expression that may be subject to prior restraint. However,
there is no claim here by respondents that the subject matter of the Garci Tapes
involves national security and publicly airing the tapes would endanger the security of
the State.[39]

The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a
prior restraint on the airing of the Garci Tapes because the Constitution expressly
prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing
freedom of expression.[40] The only exceptions to this rule are the four recognized
categories of unprotected expression. However, the content of the Garci Tapes does not
fall under any of these categories of unprotected expression.

The airing of the Garci Tapes does not violate the right to privacy because the content of
the Garci Tapes is a matter of important public concern. The Constitution guarantees the
people’s right to information on matters of public concern.[41] The remedy of any person
aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the
Anti-Wiretapping Law after the commission of the crime. Subsequent
punishment, absent a lawful defense, is the remedy available in case of violation of the
Anti-Wiretapping Law.

The present case involves a prior restraint on protected expression. Prior restraint on
protected expression differs significantly from subsequent punishment of protected
expression. While there can be no prior restraint on protected expression, there can be
subsequent punishment for protected expression under libel, tort or other laws. In the
present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not
punishment of personnel of radio and television stations for actual violation of the Anti-
Wiretapping Law.

6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression. The
charter of the NTC does not vest NTC with any content-based censorship power over
radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can
never be subject to prior restraint. However, even assuming for the sake of argument
that the airing of the Garci Tapes constitutes unprotected expression, only the courts
have the power to adjudicate on the factual and legal issue of whether the airing of the
Garci Tapes presents a clear and present danger of bringing about a substantive evil that
the State has a right and duty to prevent, so as to justify the prior restraint.

Any order imposing prior restraint on unprotected expression requires prior

adjudication by the courts on whether the prior restraint is constitutional. This is a
necessary consequence from the presumption of invalidity of any prior restraint on
unprotected expression. Unless ruled by the courts as a valid prior restraint,
government agencies cannot implement outright such prior restraint because such
restraint is presumed unconstitutional at inception.

As an agency that allocates frequencies or airwaves, the NTC may regulate the
bandwidth position, transmitter wattage, and location of radio and television stations,
but not the content of the broadcasts. Such content-neutral prior restraint may make
operating radio and television stations more costly. However, such content-neutral
restraint does not restrict the content of the broadcast.

7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC
action imposing prior restraint on the airing is presumed unconstitutional. The
Government bears a heavy burden to prove that the NTC action is constitutional. The
Government has failed to meet this burden.

In their Comment, respondents did not invoke any compelling State interest to impose
prior restraint on the public airing of the Garci Tapes. The respondents claim that they
merely “fairly warned” radio and television stations to observe the Anti-Wiretapping
Law and pertinent NTC circulars on program standards. Respondents have not explained
how and why the observance by radio and television stations of the Anti-Wiretapping
Law and pertinent NTC circulars constitutes a compelling State interest justifying prior
restraint on the public airing of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can
always be subject to criminal prosecution after the violation is committed. Respondents
have not explained why there is a need in the present case to impose prior restraint just
to prevent a possible future violation of the Anti-Wiretapping Law. Respondents have
not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC
circulars, can incite imminent lawless behavior or endanger the security of the State. To
allow such restraint is to allow prior restraint on all future broadcasts that may possibly
violate any of the existing criminal statutes. That would be the dawn of sweeping and
endless censorship on broadcast media.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of radio
and television stations constitutes impermissible pressure amounting to prior restraint
on protected expression. Whether the threat is made in an order, regulation, advisory
or press release, the chilling effect is the same: the threat freezes radio and television
stations into deafening silence. Radio and television stations that have invested
substantial sums in capital equipment and market development suddenly face
suspension or cancellation of their permits. The NTC threat is thus real and potent.

In Burgos v. Chief of Staff,[42] this Court ruled that the closure of the We

Forum newspapers under a general warrant “is in the nature of a previous restraint or
censorship abhorrent to the freedom of the press guaranteed under the fundamental
law.” The NTC warning to radio and television stations not to air the Garci Tapes or else
their permits will be suspended or cancelled has the same effect – a prior restraint on
constitutionally protected expression.

In the recent case of David v. Macapagal-Arroyo,[43] this Court declared unconstitutional

government threats to close down mass media establishments that refused to comply
with government prescribed “standards” on news reporting following the declaration of
a State of National Emergency by President Arroyo on 24 February 2006. The Court
described these threats in this manner:
Thereafter, a wave of warning[s] came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a
'strong presence,' to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government." Director General Lomibao further stated
that "if they do not follow the standards — and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 — we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged television and radio networks
to "cooperate" with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media coverage during times when
the national security is threatened.[44] (Emphasis supplied)
The Court struck down this “wave of warning[s]” as impermissible restraint on freedom
of expression. The Court ruled that “the imposition of standards on media or any form
of prior restraint on the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other materials, are declared
UNCONSTITUTIONAL.”[45]

The history of press freedom has been a constant struggle against the censor whose
weapon is the suspension or cancellation of licenses to publish or broadcast. The NTC
warning resurrects the weapon of the censor. The NTC warning is a classic form of prior
restraint on protected expression, which in the words of Near v. Minnesota is “the
essence of censorship.”[46] Long before the American Declaration of Independence in
1776, William Blackstone had already written in his Commentaries on the Law of
England, “The liberty of the press x x x consists in laying no previous restraints upon
publication x x x.”[47]

Although couched in a press release and not in an administrative regulation, the NTC
threat to suspend or cancel permits remains real and effective, for without airwaves or
frequencies, radio and television stations will fall silent and die. The NTC press release
does not seek to advance a legitimate regulatory objective, but to suppress through
coercion information on a matter of vital public concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on

protected expression. There can be no content-based prior restraint on protected
expression. This rule has no exception.
I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its
press release dated 11 June 2005, an unconstitutional prior restraint on protected
expression, and (3) enjoin the NTC from enforcing the same.

[1]
 The taped conversations are referred to here as the “Garci Tapes.”

[2]
 Report of the Joint Committee on the Canvass of Votes for the Presidential and Vice-
Presidential Candidates in the May 10, 2004 Elections, dated 23 June 2004.

[3]
 In their Comment to the petition, the NTC and respondent Gonzalez only mentioned
Bunye’s press conference of 6 June 2005. However, respondents do not deny
petitioner’s assertion that the 9 June 2005 press conference also took place.

[4]
 On 7 June 2005, Atty. Alan Paguia, counsel of former President Joseph Ejercito
Estrada, gave to a radio station two tapes, including the Garci Tapes, which he claimed
to be authentic. On 10 June 2005, Samuel Ong, a high ranking official of the National
Bureau of Investigation, presented to the media the alleged “master tape” of the Garci
Tapes.

[5]
 The press release reads in its entirety:

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO

OBSERVE ANTI-WIRE TAPPING LAW AND PERTINENT NTC CIRCULARS ON PROGRAM
STANDARDS

In view of the unusual situation the country is in today, The (sic) National
Telecommunications Commission (NTC) calls for sobriety among the operators and
management of all radio and television stations in the country and reminds them,
especially all broadcasters, to be careful and circumspect in the handling of news
reportage, coverages [sic] of current affairs and discussion of public issues, by strictly
adhering to the pertinent laws of the country, the current program standards embodied
in radio and television codes and the existing circulars of the NTC.

The NTC said that now, more than ever, the profession of broadcasting demands a high
sense of responsibility and discerning judgment of fairness and honesty at all times
among broadcasters amidst all these rumors of unrest, destabilization attempts and
controversies surrounding the alleged wiretapping of President GMA (sic) telephone
conversations.

Taking into consideration the country’s unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
networks owners/operators that the conditions of the authorizations and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use its stations for the broadcasting or
telecasting of false information or willful misrepresentation. Relative thereto, it has
come to the attention of the Commission that certain personalities are in possession of
alleged taped conversation which they claim, (sic) involve the President of the
Philippines and a Commissioner of the COMELEC regarding their supposed violation of
election laws. These personalities have admitted that the taped conversations are
product 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, (sic) it is the position of the Commission 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. If
it has been (sic) 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 Commission reiterates the pertinent NTC circulars on
program standards to be observed by radio and television stations. NTC Memorandum
Circular No. 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 and/or telecast if 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 in 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 Commission will not hesitate, after observing the requirements of due process, to
apply with full force the provisions of the said Circulars and their accompanying
sanctions or erring radio and television stations and their owners/operators.

[6]
 The joint press statement reads (Rollo, pp. 62-63):

JOINT PRESS STATEMENT: THE NTC AND KBP

1. Call for sobriety, responsible journalism, and of law, and the radio and television
Codes.

2. 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.

3. 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.

4. What is being asked by NTC is that the exercise of press freedom is done
responsibly.
 5. 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.

6. The KBP Codes also require that no false statement or willful misrepresentation is
made in the treatment of news or commentaries.

7. 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.
[7]
 David v. Macapagal-Arroyo, G.R. No. 1713396, 3 May 2006, 489 SCRA 160.

[8]
 In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo wrote that
freedom of expression is “the matrix, the indispensable condition, of nearly every other
form of freedom.”

[9]
 See dissenting opinion of Justice Oliver Wendell Holmes in United States v.
Schwimmer, 279 U.S. 644 (1929).

[10]
 Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

[11]
 Gonzales v. Kalaw-Katigbak, No. L-69500, 22 July 1985, 137 SCRA 717.

[12]
 Pharmaceutical and Health Care Association of the Philippines v. Health Secretary
Francisco T. Duque III, G.R. No. 173034, 9 October 2007. Another fundamental ground
for regulating false or misleading advertisement is Section 11(2), Article XVI of the
Constitution which states: “The advertising industry is impressed with public interest,
and shall be regulated by law for the protection of consumers and the promotion of the
general welfare.”

[13]
 Eastern Broadcasting Corporation v. Dans, No. L-59329, 19 July 1985, 137 SCRA 628.

[14]
 Id.

[15]
 512 U.S. 622, 640 (1994).

[16]
 Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, G.R. Nos.
169838, 169848 and 156881, 25 April 2006, 488 SCRA 2260.

[17]
 Constitutional Law, Erwin Chemerinsky, pp. 902, 936 (2nd Edition).

[18]
 Ruiz v. Gordon, 211 Phil. 411 (1983).

[19]
 United States v. Grace, 461 U.S. 171 (1983).

[20]
 Gonzalez v. Kalaw-Katigbak, see Note 11. The Court declared, “It is the opinion of this
Court, therefore, that to avoid an unconstitutional taint on its creation, the power of
respondent Board is limited to the classification of films.”
[21]
 Movie and Television Review and Classification Board v. ABS-CBN Broadcasting
Corporation, G.R. No. 155282, 17 January 2005, 448 SCRA 5750.

[22]
 A case may be made that only television programs akin to motion pictures, like tele-
novelas, are subject to the power of review and classification by a government review
board, and such power cannot extend to other pre-taped programs like political shows.

[23]
 Constitutional Law, Chemerinsky, see Note 17, p. 903.

[24]
 See Note 12.

[25]
 Iglesia ni Cristo (INC) v. Court of Appeals, Board of Review for Motion Pictures and
Television, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New York Times v. United
States, 403 U.S. 713 (1971).

[26]
 Id.

[27]
 Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L-82380, 29 April 1988, 160 SCRA
861.

[28]
 Social Weather Station, et al. v. COMELEC, 409 Phil. 571 (2001).

[29]
 See Note 25.

[30]
 VRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230
(2003). In effect, this makes “hate speech” against a religious or ethnic minority a
protected expression.

[31]
 In pornography or obscenity cases, the ancillary test is the contemporary community
standards test enunciated in Roth v. United States (354 U.S. 476 [1957]), which asks:
whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest. See
Gonzalez v. Kalaw-Katigbak, Note 11.

[32]
 See notes 12 and 13. In false or misleading advertisement cases, no test was
enunciated in Pharmaceutical and Health Care Association of the Philippines v. Health
Secretary (see Note 12) although the Concurring and Separate Opinion of Chief Justice
Reynato S. Puno advocated the four-part analysis in Central Hudson Gas & Electric v.
Public Service Commission (447 U.S. 557 [1980]), to wit: (1) the advertisement must
concern lawful activity and not be misleading; (2) the asserted governmental interest
must be substantial; (3) the state regulation directly advances the governmental interest
asserted; and (4) the restriction is no more extensive than is necessary to serve that
interest.

[33]
 Bayan v. Ermita, see Note 16. In the United States, the prevailing test is the
Brandenburg standard (Brandenburg v. Ohio, [395 U.S. 444 1969]) which refined the
clear and present danger rule articulated by Justice Oliver Wendell Holmes in Schenck v.
United States (249 U.S. 47 [1919]) by limiting its application to expressions where there is
“imminent lawless action.” See American Constitutional Law, Otis H. Stephen, Jr. and
John M. Scheb II, Vol. II, p. 133 (4th Edition).

[34]
 Federal Communications Commission v. League of Women Voters, 468 U.S. 364
(1984).

[35]
 Section 1, Republic Act No. 4200.

[36]
 69 Phil. 635 (1940).

[37]
 See Note 12.

[38]
 Some commentators, including Prof. Robert Bork, argue that political expression is
the only expression protected by the Free Speech Clause. The U.S. Supreme Court has
rejected this view. Constitutional Law, Chemerinsky, see Note 17, p. 897.

[39]
 See Commonwealth Act No. 616 and Article 117 of the Revised Penal Code.

[40]
 See Bartnicki v. Vopper, 532 U.S. 514 (2001). In this case, the U.S. Supreme Court held
that an anti-wiretapping law violates the First Amendment if it prohibits disclosure of
intercepted information that is of significant public concern.

[41]
 Section 7, Article III, Constitution.

[42]
 218 Phil. 754 (1984).

[43]
 See Note 7.

[44]
 Id. at 268.

[45]
 Id. at 275.

[46]
 283 U.S. 697 (1931).

[47]
 American Constitutional Law, Ralph A. Rossum and G. Alan Tass, vol. II, p. 183
th
(7  Edition).

SEPARATE CONCURRING OPINION

AZCUNA, J.:

I vote to GRANT the petition on the ground that the challenged NTC and DOJ warnings
violate Sec. 10, Art. XVI of the Constitution which states:
Sec. 10.  The State shall provide the policy environment for the full development of
Filipino capability and the emergency of communication structures suitable to the needs
and aspirations of the nation and the balanced flow of information into, out of, and
across the country, in accordance with a policy that respects the freedom of speech and
of the press.
This provision was precisely crafted to meet the needs and opportunities of the
emerging new pathways of communications, from radio and tv broadcast to the flow of
digital information via cables, satellites and the internet.

The purpose of this new statement of directed State policy is to hold the State
responsible for a policy environment that provides for (1) the full development of
Filipino capability, (2) the emergence of communication structures suitable to the needs
and aspirations of the nation and the balanced flow of information, and (3) respect for
the freedom of speech and of the press.

The regulatory warnings involved in this case work against a balanced flow of
information in our communication structures and do so without respecting freedom of
speech by casting a chilling effect on the media.  This is definitely not the policy
environment contemplated by the Constitution.

SEPARATE OPINION

CHICO-NAZARIO, J.:

With all due respect, I vote to dismiss the present Petition for the simple reason that the
assailed press statements made by the National Telecommunications Commission (NTC)
and the Secretary of Justice Raul Gonzales (Gonzales) do not constitute prior restraint
that impair freedom of speech.  There being no restraint on free speech, then there is
even no need to apply any of the tests, i.e, the dangerous tendency doctrine, the
balancing of interests test, and the clear and present danger rule, to determine whether
such restraint is valid.

The assailed press statements must be understood and interpreted in the proper
perspective.  The statements must be read in their entirety, and interpreted in the
context in which they were made.

A scrutiny of the “fair warning” issued by the NTC on 11 June 2005 reveals that it is
nothing more than that, a fair warning, calling for sobriety, care, and circumspection in
the news reporting and current affairs coverage by radio and television stations.  It
reminded the owners and operators of the radio stations and television networks of the
provisions in NTC Memorandum Circulars No. 11-12-85 and 22-89, which are also stated
in the authorizations and permits granted to them by the government, that they shall
not use their stations for the broadcasting or telecasting of false information or willful
misrepresentation.  It must be emphasized that the NTC is merely reiterating the very
same prohibition already contained in its previous circulars, and even in the
authorizations and permits of radio and television stations.  The reason thus escapes me
as to why said prohibition, when it was stated in the NTC Memorandum Circulars and in
the authorizations and permits, was valid and acceptable, but when it was reiterated in
a mere press statement released by the NTC, had become a violation of the Constitution
as a prior restraint on free speech.

In the midst of the media frenzy that surrounded the Garci tapes, the NTC, as the
administrative body tasked with the regulation of radio and television broadcasting
companies, cautioned against the airing of the unauthenticated tapes.  The warning of
the NTC was expressed in the following manner, “[i]f it has been (sic) 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.”  According to the
foregoing sentence, before any penalty could be imposed on a radio or television
company for airing the Garci tapes, the tapes must have been established to be false
and fraudulent after prosecution and investigation.  The warning is nothing new for it
only verbalizes and applies to the particular situation at hand an existing prohibition
against spreading false information or willful misrepresentation by broadcast
companies.  In fact, even without the contested “fair warning” issued by the NTC,
broadcast companies could still face penalties if, after investigation and prosecution, the
Garci tapes are established to be false and fraudulent, and the airing thereof was done
to purposely spread false information or misrepresentation, in violation of the
prohibition stated in the companies’ authorizations and permits, as well as the pertinent
NTC Memorandum Circulars.

Moreover, we should not lose sight of the fact that just three days after its issuance of
its “fair warning,” or on 14 June 2005, the NTC again released another press statement,
this time, jointly made with the Kapisanan ng Broadcasters sa Pilipinas (KBP), to the
effect that:
JOINT PRESS STATEMENT: NTC AND KBP

 CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW,

AND THE RADIO AND TELEVISION CODES.

 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 (sic) PRESS FREEDOM WITH
HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND
HONESTY.

 NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS

FREEDOM OR CENSORSHIP.  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 IS

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 (sic) TAPES SHOULD BE TREATED WITH SENSITIVITY
AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES
BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL
CONTENT OF THE SAME.

The relevance of the afore-quoted press statement cannot be downplayed.  It already

categorically settles what NTC meant and how the KBP understood the 11 June 2005
NTC press statement.  We cannot insist to give a different and more sinister
interpretation to the first press statement, when the second press statement had
already particularly defined the context by which it should be read.

Neither should we give much merit to the statements made by Secretary Gonzales to
the media that he had already instructed the National Bureau of Investigation (NBI) to
monitor all radio stations and television networks for possible violations of the Anti-
Wiretapping Law.  Secretary Gonzales is one of media’s favorite political personalities,
hounded by reporters, and featured almost daily in newspapers, radios, and televisions,
for his “quotable quotes,” some of which appeared to have been uttered spontaneously
and flippantly.  There was no showing that Secretary Gonzales had actually and officially
ordered the NBI to conduct said monitoring of radio and television broadcasts, and that
the NBI acted in accordance with said order.  Which leads me to my next point.

We should be judicious in giving too much weight and credence to press statements.  I
believe that it would be a dangerous precedent to rule that press statements should be
deemed an official act of the administrative agency or public official concerned.  Press
statements, in general, can be easily manufactured, prone to alteration or
misinterpretation as they are being reported by the media, and may, during some
instances, have to be made on the spot without giving the source much time to discern
the ramifications of his statements.  Hence, they cannot be given the same weight and
binding effect of official acts in the form of, say, memorandum orders or circulars.

Even if we assume arguendo that the press statements are official issuances of the NTC
and Secretary Gonzales, then the petitioner alleging their unconstitutionality must bear
the burden of proving first that the challenged press statements did indeed constitute
prior restraint, before the presumption of invalidity of any system of prior restraint on
free speech could arise.  Until and unless the petitioner satisfactorily discharges the said
burden of proof, then the press statements must similarly enjoy the presumption of
validity and constitutionality accorded to statutes, having been issued by officials of the
executive branch, a co-equal.  The NTC and Secretary Gonzales must likewise be
accorded the presumption that they issued the questioned press statements in the
regular performance of their duties as the regulatory body for the broadcasting industry
and the head of the principal law agency of the government, respectively.

Significantly also, please allow me to observe that the purported chilling effect of the
assailed press statements was belied by the fact that the owners and operators of radio
stations and television networks, who were supposed to feel most threatened by the
same, did not find it necessary to go to court.  They should have been the ones to have
felt and attested to the purported chilling effect of said press statements.  Their silence
in all this speaks for itself.

In view of the foregoing, I vote for the denial of the present petition.
 C O N C U R R I N G  AND  D I S S E N T I N G  O P I N I O N S   

VELASCO, JR., J.:

I concur in the results of the majority opinion penned by Chief Justice Puno, but only
insofar as the NTC aspect of the case is concerned.

The opinion of the Chief Justice––upon which this concurrence hinges––is to the effect
that the warning issued by the NTC, by way of a press release, that the continuous airing
or broadcast of the “Garci Tapes” is a violation of the Anti-Wiretapping Law, restricts the
freedom of speech and of the press and constitutes a content-based prior restraint
impermissible under the Constitution. The quality of impermissibility comes in owing to
the convergence and combined effects of the following postulates, to wit:  the warning
was issued at the time when the “Garci Tapes” was newspaper headline and radio/TV
primetime material; it was given by the agency empowered to issue, suspend, or
altogether cancel the certificate of authority of owners or operators of radio or
broadcast media; the chilling effect the warning has on media owners, operators, or
practitioners; and facts are obtaining casting doubt on the proposition that airing the
controversial tape would violate the anti-wiretapping law.

I also agree with the Chief Justice’s observation that the prior restraining warning need
not be embodied in a  formal  order or circular, it being sufficient that such warning was
made by a government agency, NTC in this case, in the performance of its official duties.
Press releases on a certain subject can rightfully be treated as statements of official
position or policy, as the case may be, on such subject.

To me, the facts on record are sufficient to support a conclusion that the press release
issued by NTC––with  all the unmistakable threat embodied in it of a possible
cancellation of licenses and/or the filing of criminal cases against erring media owners
and practitioners––constitutes a clear instance of prior restraint. Not lost on this writer
is the fact that five (5) days after it made the press release in question, NTC proceeded
to issue jointly with the Kapisanan ng mga Broadcasters sa Pilipinas (KBP) another press
release to clarify that the earlier one issued was not intended to limit or restrain press
freedom. With the view I take of the situation, the very fact that the KBP agreed to
come up with the joint press statement that “NTC did not issue any [Memorandum
Circular] or order constituting a restraint of press freedom or censorship” tends to
prove, rather than disprove, the threatening and chilling tone of its June 11, 2005 press
release.  If there was no prior restraint from the point of view of media, why was there a
need to hold a dialogue with KBP and then issue a clarifying joint statement?

Moreover, the fact that media owners, operators, and practitioners appeared to have
been frozen into inaction, not making any visible effort to challenge the validity of the
NTC press statement, or at least join the petitioner in his battle for press freedom, can
only lead to the conclusion that the chilling effect of the statement left them
threatened.

The full ventilation of the issues in an oral argument would have been ideal, particularly
so since TV and radio operators and owners opted not to intervene nor were asked to
give their comment on the chilling effect of the NTC press statement. Nonetheless, I
find  the admissions in the pleadings and the attachments thereto to be more than
sufficient to judiciously resolve this particular issue. The contents of the June 11, 2005
press release  eloquently spoke for themselves. The NTC “warning” is in reality a threat
to TV and radio station owners and operators not to air or broadcast the “Garci Tapes”
in any of their programs. The four corners of the NTC’s press statement unequivocally
reveal that the “Garci Tapes” may not be authentic as they have yet to be duly
authenticated. It is a statement of fact upon which the regulatory body predicated its
warning that its airing or broadcast will constitute false or misleading dissemination of
information that could result in the  suspension or cancellation of their respective
licenses or  franchises. The press statement was more than  a mere notice of a possible
suspension. Its crafting and thrust made it more of a threat––a declaration by the
regulatory body that the operators or owners should not air or broadcast the tapes.
Otherwise, the menacing portion on suspension or cancellation of their franchises to
operate TV/radio station will be implemented. Indeed, the very press statement speaks
eloquently on the chilling effect on media. One has to consider likewise the fact that the
warning was not made in an official NTC circular but in a press statement. The press
statement was calculated to immediately inform the affected sectors, unlike the
warning done in a circular which may not reach the intended recipients as fast.

In all, the NTC statement coupled with other circumstances convince this writer that
there was indeed a chilling effect on the TV/radio owners, in particular, and media, in
general.

While the Court has several pieces of evidence to fall back on and judiciously resolve the
NTC press release issue, the situation is different with respect to the Department of
Justice (DOJ) warning issue.  What is at hand are mere allegations in the petition that, on
June 8, 2005, respondent  DOJ Secretary Raul Gonzales warned reporters in possession
of copies of the compact disc containing the alleged “Garci” wiretapped conversation
and those broadcasting or publishing its contents that they could be held liable under
the Anti-Wiretapping Act, adding that persons possessing or airing said tapes were
committing a continuing offense, subject to arrest by anybody who had personal
knowledge of the crime committed or in whose presence the crime was being
committed.[1]

There was no proof at all of the possible chilling effect that the alleged statements of
DOJ Secretary Gonzales had on the reporters and media practitioners. The DOJ
Secretary, as head of the prosecution arm of the government and lead administrator of
the criminal justice system under the Administrative Code[2] is, to be sure, impliedly
empowered to issue reminders and warnings against violations of penal statutes. And it
is a known fact that Secretary Gonzales had issued, and still issues, such kind of
warnings. Whether or not he exceeded his mandate under premises is unclear. It is for
this main reason that I found the prior-restraint issue in the DOJ aspect of the case not
yet ripe for adjudication.

I, therefore, register my concurrence with the ponencia of Chief Justice Reynato S. Puno

insofar as it nullifies the official statement made by respondent NTC on June 11, 2005,
but dissent, with regrets, with respect to the nullification of the June 8, 2005 official
statement of respondent Secretary of Justice.
[1]
 Rollo, pp.  8-9 & 59.

[2]
 Sec. 1, Chapter I, Title III of Book IV.

SEPARATE OPINION
(DISSENTING AND CONCURRING)

Tinga, J.:

This case, involving as it does the perennial clash between fundamental individual
freedoms and state power, confronts the Court with a delicate and difficult balancing
task.

With all due respect with a little more forbearance, the petition could have been
conduced to a denouement of congruity but without diminishing the level of scrutiny
that the crucial stakes demand. I trust though that future iterations of this Court, more
divorced from some irrational aspects of the passions of these times, will further refine
the important doctrines laid down today.

Several considerations guide my vote to grant the petition – to issue the quested writ
against the respondent Department of Justice Secretary Raul M. Gonzalez (DOJ
Secretary), but not as to respondent National Telecommunications Commission (NTC).

I.

I begin with some observations on the petition itself filed by former Solicitor General
Francisco Chavez, brought forth in his capacity “as a citizen, taxpayer and a law
practitioner” against the DOJ Secretary and the NTC. At a crucial point during the
deliberations on this case, much of the focus within the Court was on the aspect of the
case concerning the NTC, to the exclusion of the aspect concerning the DOJ Secretary.
However, the petition itself only minimally dwells on the powers of the National
Telecommunications Commission (NTC).

The petition was filed on 21 June 2005, less than a month after the so-called Hello
Garci tapes (Garci tapes) hit the newstands. The petition narrates that a few days after
reports on the Garci tapes became public, respondent DOJ Secretary “threatened that
everyone found to be in possession of the controversial audio tape, as well as those
broadcasting it or printing its contents, were liable for violation of the Anti-Wiretapping
Law,”[1] and subsequently he 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 the said tape.

Then, a Press Release was issued by respondent NTC, essentially warning broadcast
stations, “[i]f it has been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation…[,] 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.”[2] These essentially are the antecedent
facts raised in the petition.

Petitioner presents two general arguments for our determination: that respondents
violated the constitutional provisions on the freedom of expression and of the press,
[3]
 and of the right of the people to information on matters of public concern;[4] and that
the NTC acted beyond its powers as a regulatory body when it warned broadcast
stations of consequences if they continued to air the contents of the disputed tapes.[5]

Fifteen (15) pages are assigned to the first issue, while four (4) pages are allotted to the
second issue concerning the NTC. In the context of arguing that there had been prior
restraint, petitioner manifests that “the threat of crackdown on media and the public
were calculated to sow fear and terror in advance of actual publication and
dissemination of the contents of the controversial tapes.”[6] Because of such “fear and
terror,” the public was denied free access to information as guaranteed by the
Constitution.[7]

Only four (4) pages are devoted to whether the NTC exceeded its discretion when it
issued the Press Release. About two (2) of the four (4) pages are utilized to cite the
statutory provisions delineating the powers and functions of the NTC. The citations are
geared toward the claim that “NTC is independent in so far as its regulatory and quasi-
judicial functions are concerned.”[8] Then the petition argues that nothing in the
functions of the NTC “warrants the pre-emptive action it took on June 11, 2005 of
declaring in a Press Release that airing of the contents of the controversial tape already
constituted a violation of the Anti-Wire Tapping Law.”[9] The petition also states that
“[w]orse, the judgment of NTC was outright, without a hearing to determine the alleged
commission of a crime and violation of the certificate of authority issued to radio and
television stations,”[10] though this point is neither followed up nor bolstered by
appropriate citations which should be plenty.

One relevant point of fact is raised in the Comment filed by the Office of the Solicitor
General (OSG) in behalf of respondents. Three (3) days after the issuance of the Press
Release, the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) issued a Joint
Statement crafted after a dialogue between them. The Joint Statement declares:
2. 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.

3. NTC did not issue any 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.

4. What is being asked by NTC is that the exercise of press freedom be done responsibly.
[11]

II.

Based on the petition, the determinative questions appear to be: (1) whether the DOJ
Secretary may be enjoined from prosecuting or threatening to prosecute any person for
possessing or broadcasting the contents of the Garci tapes, an act which allegedly
violates the free expression clause if not also the right to information clause; and (2)
whether the NTC may be enjoined from sanctioning or threatening to sanction any
broadcast media outlet for broadcasting the Garci tapes, an action also alleged to
infringe the aforementioned constitutional rights.

It should be stressed that there are critical differences between the factual and legal
milieu of the assailed act of the DOJ Secretary, on one hand, and that of the questioned
conduct of the NTC, on the other. The act complained of the NTC consists in the
issuance of a Press Release, while that of the DOJ Secretary is not encapsulated in a
piece of paper but comprised in utterances which nonetheless were well documented
by the news reports at that time. There is an element of caution raised in the Press
Release in that it does not precisely sanction or threaten to immediately sanction the
broadcast media for airing the Garci tapes, but it raises that possibility on the condition
that “it has been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation.” No such suspensive
condition is embodied in the assailed acts of the DOJ Secretary.

And most critical in my view is the distinction between the NTC and the DOJ Secretary
with respect to the breadth and reach of their ability to infringe upon the right to free
expression. The NTC is a quasi-judicial regulatory body attached to the Department of
Transportation and Communications exercising regulatory jurisdiction over a limited set
of subjects: the broadcast media, telecommunications companies, etc. In the scope of
its regulatory jurisdiction, it concededly has some capacity to impose sanctions or
otherwise perform acts that could impinge on the right of its subjects of regulation to
free expression, although the precise parameters of its legal authority to exercise such
actions have not yet been fully defined by this Court.

In contrast, the ability of the DOJ Secretary and the office that he heads to infringe on
the right to free expression is quite capacious. Unlike the NTC whose power of
injunction and sanction is limited to its subjects of regulation, the DOJ Secretary heads
the department of government which has the premier faculty to initiate and litigate the
prosecution of just about anybody.

III.

It should be assumed without controversy that the Garci tapes fall within the protection
of the free expression clause.

Much has been said in homage to the right to free expression. It is precisely the
underlying reason I can write this submission, and the reader can read this opinion or
any news account concerning the decision and its various separate opinions. The
revolutions we celebrate in our history books were animated in part by an insistence
that this right should be recognized as integral.[12] The right inheres in the first yawl of
the newborn infant, and allows a person to speak honestly in the throes of death.

In 20th century American jurisprudence, the right to free speech and expression has
been rightly linked to the inalienable right to liberty under the due process clause.
[13]
 Indeed, liberty cannot be actualized unless it encompasses liberty of speech and
expression. As a consequence, the same methodology as applied to due process and
equal protection cases may hold as well to free expression cases.

In my view, the operative principles that should govern the adjudication of free
expression cases are uncomplicated. The infringement on the right by the State can take
the mode of a content-based regulation or a content-neutral regulation. With respect to
content-based regulations, the only expressions that may be proscribed or punished are
the traditionally recognized unprotected expressions – those that are obscene, pose
danger to national security or incite imminent lawless action, or are defamatory.[14] In
order that such unprotected expressions may be restrained, it must be demonstrated
that they pose a clear and present danger of bringing about a substantive evil that the
State has a right and duty to prevent, such danger being grave and imminent as well.
But as to all other protected expressions, there can be no content-based regulation at
all. No prior restraint, no subsequent punishment.

For as long as the expression is not libelous or slanderous, not obscene, or otherwise
not dangerous to the immediate well-being of the State and of any other’s, it is
guaranteed protection by the Constitution. I do not find it material whether the
protected expression is of a political, religious, personal, humorous or trivial nature –
they all find equal comfort in the Constitution. Neither should it matter through what
medium the expression is conveyed, whether through the print or broadcast media,
through the Internet or through interpretative dance. For as long as it does not fall
under the above-mentioned exceptions, it is accorded the same degree of protection by
the Constitution.

Still concerning the protection afforded to the tapes, I do take issue with Justice Carpio’s
view that “[t]he airing of the Garci tapes is essentially a political expression because it
exposes that a presidential candidate had allegedly improper conversations with a
COMELEC Commissioner…” and that the contents of the tapes “affect gravely the
sanctity of the ballot.”[15] These statements are oriented towards the conclusion that
“[i]f ever there is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the subject of
fair and honest elections would be at the top.”[16] Yet even the majority opinion
acknowledges that “the integrity of the taped conversation is also suspect…” and “[t]he
identity of the wire-tappers, the manner of its commission, and other related and
relevant proofs are some of the invisibles of this case…given all these unsettled facets of
the tape, it is even arguable whether its airing would violate the anti-wiretapping
law.”[17]

To be blunt, it would be downright pretentious for the Court to attribute to the tapes
any definitive character, political or otherwise, because there is simply no basis for us to
make such conclusion at this point. But even if they are not of a political character, they
nonetheless find protection under the free expression clause.

IV.

Given the constitutionally protected character of the tapes, it still falls upon the petition
to establish that there was an actual infringement of the right to expression by the two
denominated respondents – the DOJ Secretary and the NTC – in order that the reliefs
sought may avail. There are two distinct (though not necessarily exclusive) means by
which the infringement can be committed by either or both of the respondents –
through prior restraint or through an act that creates a chilling effect on the exercise of
such right.

I turn first to the assailed acts of the NTC.

It is evident from the Decision and the concurring opinion of Justice Carpio that they
give primary consideration to the aspect relating to the NTC, notwithstanding the
relative lack of attention devoted by the petition to that issue. The impression they
leave thus is that the assailed acts of the NTC were somehow more egregious than
those of the DOJ Secretary. Worse, both the Decision and the concurring opinion reach
certain conclusions on the nature of the Press Release which are, with due respect,
untenable.

IV-A.

As a means of nullifying the Press Release, the document has been characterized as a
form of prior restraint which is generally impermissible under the free expression
clause. The concept of prior restraint is traceable to as far back as Blackstone’s
Commentaries from the 18th century. Its application is integral to the development of
the modern democracy. “In the first place, the main purpose of such constitutional
provisions is 'to prevent all such previous restraints upon publications as had been
practiced by other governments,' and they do not prevent the subsequent punishment
of such as may be deemed contrary to the public welfare.”[18] In Nebraska Press
Association v. Stuart,[19] the United States Supreme Court noted that “prior restraints on
speech and publication are the most serious and the least tolerable infringement on
First Amendment rights.”[20]

Yet prior restraint “by contrast and by definition, has an immediate and irreversible
sanction.”[21] The assailed act of the NTC, contained in what is after all an unenforceable
Press Release, hardly constitutes “an immediate and irreversible sanction.” In fact, as
earlier noted, the Press Release does not say that it would immediately sanction a
broadcast station which airs the Garci tapes. What it does say is that only “if it has been
subsequently established that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation” that the stations could be subjected to
possible suspension. It is evident that the issuance does not prohibit the airing of the
Garci tapes or require that the broadcast stations obtain permission from the
government or the NTC to air such tapes.

How then have my esteemed colleagues, the Chief Justice and Justice Carpio, arrived at
their conclusion that the Press Release operated as a prior restraint? Justice Carpio
characterizes the Press Release as a “warning,” and the document does use the word
“warned,” yet a warning is not “an immediate and irreversible sanction.” The warning
embodied in the Press Release is neither a legally enforceable vehicle to impose
sanction nor a legally binding condition precedent that presages the actual sanction.
However one may react to the Press Release or the perceived intent behind it, the
issuance still does not constitute “an immediate and irreversible sanction”.

On the other hand, the Decision discusses extensively what prior restraint is,
characterizing it, among others things, as “official government restrictions on the press
or other forms of expression in advance of actual publication or dissemination.”[22] The
majority enumerates certain governmental acts which constitute prior restraint, such as
the approval of a proposal to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; injunctions against
publication; the closure of the business or printing offices of certain newspapers; or
more generally, “[a]ny law or official [act] that requires some form of permission to be
had before publication can be made.”[23]

The Press Release does not fit into any of the acts described above in the majority
opinion. Neither can it be identified as an “official government restriction” as it simply
does not levy any actual restriction on the subjects of NTC regulation. Still, without
undertaking a demonstration how the Press Release actually restrained free expression,
the majority surprisingly makes a leap of logic, concluding as it does that such an
informal act as a press statement is covered by the prior restraint concept.[24] As with
Justice Carpio, the majority does not precisely explain how the Press Release could
constitute an actual restraint, worded as it was with nary a notion of restriction and
given its lack “of an immediate and irreversible sanction.”

Absent prior restraint, no presumption of invalidity can arise.

IV-B.

I fear that the majority especially has unduly fused the concepts of “prior restraint” and
“chilling effect.” There are a few similarities between the two concepts especially that
both come into operation before the actual speech or expression finds light. At the
same time, there are significant differences.

A government act that has a chilling effect on the exercise of free expression is an
infringement within the constitutional purview. As the liberal lion Justice William
Brennan announced, in NAACP v. Button,[25] “the threat of restraint, as opposed to
actual restraint itself, may deter the exercise of the right to free expression almost as
potently as the actual application of sanctions.”[26] Such threat of restraint is perhaps a
more insidious, if not sophisticated, means for the State to trample on free speech.
Protected expression is chilled simply by speaking softly while carrying a big stick.

In distinguishing chilling effect from prior restraint, Nebraska Press Association, citing

Bickel, observed, “[i]f it can be said that a threat of criminal or civil sanctions after
publication ‘chills’ speech, prior restraint "freezes" it at least for the time.”[27] An act of
government that chills expression is subject to nullification or injunction from the
courts, as it violates Section 3, Article III of the Constitution. “Because government
retaliation tends to chill an individual’s exercise of his right to free expression, public
officials may not, as a general rule, respond to an individual’s protected activity with
conduct or speech even though that conduct or speech would otherwise be a lawful
exercise of public authority.[28]

On the one hand, Justice Carpio does not bother to engage in any “chilling effect”
analysis. On the other hand, the majority does conclude that the acts of the NTC had a
chilling effect. Was there truly a chilling effect resulting from the Press Release of the
NTC?

While the act or issuance itself may evince the impression of a chilling effect, there still
must be factual evidence to support the conclusion that a particular act of government
actually engendered a chilling effect. There appears to be no case in American
jurisprudence where a First Amendment claim went forward in the absence of
evidence that speech was actually chilled.[29]

In a case decided just last year by a U.S. District Court in Georgia,[30] the following
summary was provided on the evidentiary requirement in claims of a chilling effect in
the exercise of First Amendment rights such as free speech and association:
4. Proof of Chilling Effect

Defendants' argue that Plaintiffs have failed to introduce evidence of a chilling effect,
which is required to maintain a First Amendment claim. There is some uncertainty
regarding the extent of evidence required to sustain a First Amendment challenge based
on the chilling effect of compelled disclosure of protected political activity. See In re
Grand Jury Proceeding, 842 F.2d 1229, 1235-36 (11th Cir.1988). The Supreme Court has
indicated on several occasions that some evidence of a chilling effect is required.

In NAACP, for example, the Supreme Court accepted that a chilling effect would result
from the compelled disclosure of the NAACP's membership lists because of
“uncontroverted evidence” in the record that members of the NAACP had suffered past
adversity as a result of their known membership in the group. 357 U.S. at 464-65, 78
S.Ct. 1163. The Court in Buckley v. Valeo, however, emphasized, in rejecting a challenge
to campaign finance disclosure laws based on its alleged chilling effect on political
association, that there was no record evidence of a chilling effect proving a violation of
the right to association. Buckley, 424 U.S. at 71-72, 96 S.Ct. 612 (noting that failure to
tender evidence of chilling effect lessened scrutiny applied to First Amendment
challenge to campaign donation disclosure laws).

Seizing on this apparent evidentiary requirement, several lower courts have rejected
right of association challenges for lack of evidence of a chilling effect. See, e.g., Richey v.
Tyson, 120 F.Supp.2d 1298, 1324 (S.D.Ala.2000) (requiring, in challenge of campaign
finance law, evidence of a “reasonable probability” of threats, harassment, or reprisals
“from sources such as specific evidence of past or present harassment of members or of
the organization, a pattern of threats, specific manifestations of public hostility, or
conduct visited on organizations holding similar views”); Alabama State Federation of
Teachers, AFL-CIO v. James, 656 F.2d 193, 197 (5th Cir. Unit B Sept.17, 1981) (rejecting
right of association challenge for lack of evidence of chilling effect); Int'l Organization of
Masters, Mates, and Pilots, 575 F.2d 896, 905 (D.C.Cir.1978) (same).

But the Eleventh Circuit has drawn a distinction between challenges to political
campaign donation disclosure rules of the sort at issue in Buckley and Richey and
challenges to government investigations into “particular political group or groups” of
the sort in NAACP and at issue in this case. See In re Grand Jury Proceeding, 842 F.2d at
1236. In doing so, the Eleventh Circuit suggested that a “more lenient” showing applies
to targeted investigations because “the government investigation itself may indicate the
possibility of harassment.” Id.; see also Pollard v. Roberts, 283 F.Supp. 248, 258
(D.C.Ark.1968), aff'd per curiam 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (finding
prosecutor's attempt to subpoena the names of contributors to a political campaign
unconstitutional, despite “no evidence of record in this case that any individuals have as
yet been subjected to reprisals on account of the contributions in question,” because “it
would be naive not to recognize that the disclosure of the identities of contributors to
campaign funds would subject at least some of them to potential economic or political
reprisals of greater or lesser severity”); cf. also Lady J. Lingerie, Inc. v. City of
Jacksonville, 176 F.3d 1358, 1366-67 (11th Cir.1999) (concluding, without discussing
record evidence of chilling effect, that statute which required disclosure of names of
principal stockholders of adult entertainment establishments was abridgement of First
Amendment).

In addition, concerns about the economic vulnerabilities of public employees have led
courts to more easily find the presence of a chilling effect on disclosure rules imposed
on public employees. See, e.g., Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v.
Waterfront Commission of New York Harbor , 667 F.2d 267, 271-72 (2d Cir.1981). Where
the government has “pervasive control over the economic livelihood” or “professional
destiny” of its employees, it may be obvious that compelling disclosure of organizational
affiliations under threat of discipline could create a “substantial danger” of an
“inevitable” chilling effect. Id. Thus, when examining freedom of association challenges
in the public employment context, courts have applied a “common sense
approach.” Id. at 272; see also Shelton, 364 U.S. at 486, 81 S.Ct. 247 (noting, in finding
questionnaire distributed to public teachers inquiring into their organizational
memberships unconstitutional, that burden on teacher's freedom to associate was
“conspicuously accented when the teacher serves at the absolute will of those to whom
the disclosure must be made,” and not discussing evidence of chilling effect); Fraternal
Order of Police, 812 F.2d at 119-20 (“We recognize that the record contains no evidence
that would support a finding that a required response to this question would chill the
applicant's or family member's associational activities. However, in light of the absence
of any legitimate interest asserted by the City to justify the inquiry, we conclude that the
question would not even withstand a more relaxed scrutiny than that usually applied to
questions which seek disclosure of associational ties.”).[31]
It makes utter sense to impose even a minimal evidentiary requirement before the
Court can conclude that a particular government action has had a chilling effect on free
speech. Without an evidentiary standard, judges will be forced to rely on intuition and
even personal or political sentiments as the basis for determining whether or not a
chilling effect is present. That is a highly dangerous precedent, and one that clearly has
not been accepted in the United States. In fact, in Zieper v. Metzinger,[32] the U.S. District
Court of New York found it relevant, in ruling against the petitioner, that Zieper “has
stated affirmatively that his speech was not chilled in any way.”[33] “Where a party can
show no change in his behavior, he has quite plainly shown no chilling of his First
Amendment right to free speech.”[34]

In view of its regulatory jurisdiction over broadcast media, the ability of the NTC to
infringe the right to free expression extends only to its subjects of regulation, not to
private persons such as petitioner. Thus, to consider at bar whether or not the NTC
Press Release had a chilling effect, one must look into the evidence on record
establishing the broadcast media’s reaction to the Press Release.

The majority states that “[t]here is enough evidence of chilling effect of the complained
acts of record,” alluding to “the warnings given to media [which] came from no less the
NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media.”[35] With due respect, I submit that what the record establishes is
merely the presence of the cause for chilling (the Press Release), but not the actual
chilling effect itself on the broadcast media. In that respect, the Joint Statement of the
NTC and the KBP executed just three (3) days after the issuance of the Press Release,
becomes material.

In the employment of the “chilling effect mode of analysis,” disregarding the actual
effects would mean dispensing with any evidentiary requirement for the constitutional
claim. That is a doctrine which does not bode well for the Court’s future in constitutional
adjudication, and one I expect that will be significantly modified in due time.

In the Joint Statement, the KBP assented to the manifestation that “NTC did not issue
any [Memorandum Circular] or Order constituting a restraint of press freedom or
censorship, as well as disavowed having acted or intending “to limit or restrict the
interview of members of the opposition or free expression of views.”[36] The Joint
Statement can certainly be taken in favor of the NTC as proof that its Press Release did
not actually create a chilling effect on the broadcast media. On its face, it evinces the
KBP’s contentment with the Press Release and all other steps taken by the NTC with
respect to the Garci tapes, coupled with the acknowledgment that the NTC had not
infringed the right to free expression of its subjects of regulation.

The majority casts aspersions on the KBP for “inexplicably joining the NTC in issuing an
ambivalent Joint Press Statement” and on the perceived “silence on the sidelines on the
part of some media practitioners.”[37] Yet these are derogatory conjectures that are not
supported by the record. It is quite easy to draw such negative inference, but there is
another inference that can be elicited from the evidence on record — that the KBP was
so satisfied with the NTC’s actions it consented to the averments in the Joint Statement.
Since Independence, and outside of the Marcos years, there is no tradition of cowardice
on the part of the Philippine media, even in the face of government retribution. Indeed,
it is false and incongruous to dilute with aspersions of docility and inertness the true
image of the most robust, vigilant and strident media in Asia.

The best indication that the Philippine broadcast media was cowered or chilled by the
NTC Press Release, if ever, would have been its initiation of a suit similar to that at bar,
or its participation herein. The fact that it did not can lead to the reasonable assumption
that the Press Release did not instill fear in the members of the broadcast media, for
they have since then, commendably and in true-to-form fashion challenged before the
courts other NTC issuances which they perceived as actual threats to their right to free
expression.[38]

It bears adding that I had proposed during the deliberations of this case that the KBP or
other large media organizations be allowed to intervene should they be so minded, if
only to elicit their views for the record whether the NTC by issuing the Press Release
truly chilled the exercise of their rights to expression, notwithstanding the Joint
Statement. After all, it would be paternalistic at best, presumptuous at worst, for the
Court to assume that conclusion without affording the broadcast media the
opportunity to present its views on the question. Yet a majority of the members of the
Court declined to take that step, thereby disallowing the introduction of more
sufficient evidence to warrant a ruling against the NTC.
Thus, we are left with utter paucity of evidence that the NTC had infringed the press
freedom of its subjects of regulation mainly because of the broadcast media’s non-
participation in the petition at bar. If only on that account, I have to vote against the
writ sought against the NTC. To decide otherwise would simply set an injudicious
precedent that permits the affirmative relief to constitutional claims without having to
bother with the need for evidence.

There is another point raised with respect to the NTC aspect of this case, and that is the
question of whether the NTC actually has the statutory authority to enjoin or sanction
the broadcast of the tapes. The majority opinion does not conclusively settle that
question, and that is for the best, given the absence of comprehensive arguments
offered by the petitioner on that issue. I reserve my right to offer an opinion on that
question in the appropriate case. Suffice it to say, there are at least two other cases now
pending with this Court which raise precisely that question as the central issue and not
merely as an afterthought. Those cases, which do offer more copious arguments on that
issue than those presented before us, would provide a more fortuitous venue for the
settlement of those questions.

IV-C.

The majority and concurring opinions hardly offer any rebuke to the DOJ Secretary even
as they vote to grant affirmative relief against his actions. This ensued, I suspect, due to
the undue focus placed on the arguments concerning the NTC, even though the petition
itself was not so oriented. But for my part, it is the unequivocal threats to prosecute
would-be-offenders, made no less by the head of the principal law agency of the
government charged with the administration of the criminal justice system,[39] that
constitute the violation of a fundamental freedom that in turn warrants this Court’s
intervention.

The particular acts complained of the DOJ Secretary are explained in detail in the
petition,[40] narrated in the decision,[41] and corroborated by contemporary news
accounts published at that time.[42] The threats are directed at anybody in possession of,
or intending to broadcast or disseminate, the tapes. Unlike the NTC, the DOJ Secretary
has the actual capability to infringe the right to free expression of even the petitioner, or
of anybody for that matter, since his office is empowered to initiate criminal
prosecutions. Thus, petitioner’s averments in his petition and other submissions
comprise the evidence of the DOJ Secretary’s infringement of the freedom of speech
and expression.

Was there an actual infringement of the right to free expression committed by the DOJ
Secretary? If so, how was such accomplished? Quite clearly, the DOJ Secretary did
infringe on the right to free expression by employing “the threat of restraint,”[43] thus
embodying “government retaliation [that] tends to chill an individual’s exercise of his
right to free expression.”[44] The DOJ Secretary plainly and directly threatened anyone in
possession of the Garci tapes, or anyone who aired or disseminated the same, with the
extreme sanction of criminal prosecution and possible imprisonment. He reiterated the
threats as he directed the NBI to investigate the airing of the tapes. He even extended
the warning of sanction to the Executive Press Secretary. These threats were evidently
designed to stop the airing or dissemination of the Garci tapes – a protected expression
which cannot be enjoined by executive fiat.

Tasked with undertaking the defense of the DOJ Secretary, the OSG offered not even a
ghost of a contest as soon as the bell for the first round rang. In abject surrender, it
squeezed in just one paragraph[45] in its 27-page Comment for that purpose.

The arguments offered in that solitary paragraph are meager. It avers that the media
reports are without probative value or, at best, inconclusive as the declarations therein
may have been quoted inaccurately or out of context.[46] Yet the OSG does not deny that
the statements were made,[47] failing even to offer what may have been the “accurate
context.” The OSG also points out that the DOJ Secretary has not actually “made any
issuance, order or instruction to the NBI to go after such media organizations.” Yet the
fact that the DOJ Secretary has yet to make operational his threats does not dissuade
from the conclusion that the threats alone already chilled the atmosphere of free
speech or expression.

V.

By way of epilogue, I note that the Garci tapes have found shelter in the Internet[48] after
the broadcast media lost interest in airing those tapes, after the newsprint that
contained the transcript had dissembled. The tapes are widely available on the Internet
and not only in websites maintained by traditional media outfits, but also in such media-
sharing sites as Google-owned YouTube, which has at least 20 different files of the
tapes.[49] Internationally popular websites such as the online
encyclopedia Wikipedia have linked to the tapes as well.[50] Then there is the fact that
excerpts of the tapes were remixed and widely distributed as a popular ringtone for
cellular phones.

Indeed, the dimensions of the issue have long extended beyond the Philippine mass
media companies and the NTC. This issue was hardly limited to the right of Philippine
broadcast media to air the tapes without sanction from the NTC. It involved the right of
any person wherever in the world situated to possess and disseminate copies of the
tape without fear of reprisal from the Philippine government.

Still, the vitality of the right to free expression remains the highlight of this case. Care
and consideration should be employed in presenting such claims before the courts, and
the hope is for a growing sophistication and specialization in the litigation of free speech
cases.

For all the above, I vote to GRANT the petition against respondent DOJ Secretary and
DISMISS the same insofar as the NTC is concerned.

[1]
 Rollo, p. 8.

[2]
 Id. at 10-11.

[3]
 CONST., Art. III, Sec. 4.

[4]
 CONST., Art. III, Sec. 7. The Decision however has properly refused to dwell on the
right to information as central to the case at bar. See Decision, p. 9.

[5]
 Rollo, p. 18.

[6]
 Id. at 23.

[7]
 Id. at 24.

[8]
 Rollo, p. 34.

[9]
 Id. at 34.

[10]
 Id. at 37.

[11]
 Id. at 111.

[12]
 “Freedom of expression was a concept unknown to Philippine jurisprudence prior to
1900. It was one of the burning issues during the Filipino campaign against Spain, first,
in the writings of the Filipino propagandists, and, finally, in the armed revolt against the
mother country. Spain’s refusal to recognize the right was, in fact, a prime cause of the
revolution.” J. BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:
A COMMENTARY (1996 ed.), at 203-204.

[13]
 Beginning with Gitlow v. New York, 268 U.S. 652 (1925). “For present purposes we
may and do assume that freedom of speech and of the press-which are protected by the
First Amendment from abridgment by Congress-are among the fundamental personal
rights and 'liberties' protected by the due process clause of the Fourteenth Amendment
from impairment by the States.” Id. at 666. “The incorporation of the other First
Amendment rights followed. In 1931, the Supreme Court held squarely that the
freedom of the press is within the protection of the ‘liberty’ guaranteed in the
Fourteenth Amendment (Near v. Minnesota, [283 U.S. 697 (1931)]; in 1937 the right of
peaceable assembly was included (DeJonge v. Oregon, 299 U.S. 353); and in 1940 the
freedom-of-religion provision was used to invalidate a Connecticut statute requiring a
permit for all solicitors for religious and charitable causes (Cantwell v. Connecticut, [310
U.S. 296 (1940)]” A.T Mason & W. Beaney, American Constitutional Law (4th ed.), at
496-497.

[14]
 The views of this writer on the proper interpretation of our libel laws in light of
Section 4, Article III of the Constitution were expressed in Guingging v. Court of Appeals,
G.R. No. 128959, 30 September 2005, 471 SCRA 516.

[15]
 Separate Concurring Opinion of Justice Carpio, p. 16.

[16]
 Id.

[17]
 Decision, p. 34.

[18]
 See e.g., Patterson v. Colorado, 205 U.S. 454 (1907); Near v. Minnesota, 283 U.S. 697
(1931).
[19]
 427 U.S. 539 (1976).

[20]
 Id. at 559.

[21]
 Id.

[22]
 Decision, p. 19; citing J. BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 225 (2003 ed.)

[23]
 Id.

[24]
 Id. at 35.

[25]
 371 U.S. 415 (1963).

[26]
 See NAACP v. Button, 371 U.S. 415, 433 (1963). Emphasis supplied.

[27]
 Supra note 19 at 559; citing A. BICKEL, THE MORALITY OF CONSENT (1975).

[28]
 The Baltimore Sun Company v. Ehrlich, No. 05-1297 (U.S. 4th Circuit), 15 February
2006; citing Board of Country Commissioners v. Umbehr, 518 U.S. 668. 674 (1996).

[29]
 “The Court notes, however, that it has found no case in which a First Amendment
claim went forward in the absence of allegations or evidence that speech was actually
chilled.” Zieper v. Metzinger, No. 00 Civ. 5595 (PKC), U.S. District Court, S.D. New York,
22 August 2005; citing Davis v. Village Park II Realty Co., 578 F.2d at 464.

[30]
 Local 491, International Brotherhood of Police Officers v. Gwinnet County, 510 F.Supp.
2d1271.

[31]
 Id. at 1294-1296.

[32]
 Supra note 18.

[33]
 Id. at 526.

[34]
 Id., citing Curly v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001), at 73.

[35]
 Decision, p. 35.

[36]
 Rollo, p. 86.

[37]
 Decision, pp. 35-36.

[38]
 At least one case which has reached this Court challenges the validity of certain
issuances of the NTC which were promulgated or reiterated shortly after the February
2006 declaration of a “state of emergency.”
[39]
 See Sec. 1, Chapter 1, Title III, Book IV, Administrative Code of 1987, which contains
the “Declaration of Policy” of the Department of Justice. “It is the declared policy of the
State to provide the government with a principal law agency which shall be both its legal
counsel and prosecution arm; administer the criminal justice system in accordance with
the accepted processes thereof consisting in the investigation of the crimes, prosecution
of offenders and administration of the correctional system; xxx”

[40]
 Rollo, pp. 8-10.

[41]
 Decision, pp. 3-4.

[42]
 See e.g., “DOJ warns media vs. playing tapes” (first published by ABS-CBN News on 10
June 2005), at http://www.abs-cbnnews.com/topofthehour.aspx?StoryId=7564 (last
visited, 13 February 2008).

[43]
 See note 26.

[44]
 See note 28.

[45]
 Rollo, p. 75.

[46]
 Id.

[47]
 See also note 42.

[48]
 Already, the U.S. Supreme Court in Reno v. ACLU , 521 U.S. 844 had pronounced that
the factors that justify the government regulation of the broadcast medium are not
present in cyberspace. It will be inevitable that this Court will soon have to adjudicate a
similar issue.

[49]
 See http://www.youtube.com/results?search_query=Hello+Garci. (“Search Results
for “Hello Garci”).

[50]
 See “Hello Garci scandal” (http://en.wikipedia.org/wiki/Hello_Garci).

DISSENTING OPINION

NACHURA, J.:

I respectfully register my dissent to the majority opinion penned by the esteemed Chief
Justice. The assailed press releases and statements do not constitute a prior restraint on
free speech. It was not improper for the NTC to warn the broadcast media that the
airing of taped materials, if subsequently shown to be false, would be a violation of law
and of the terms of their certificate of authority, and could lead, after appropriate
investigation, to the cancellation or revocation of their license.

The Facts
This case arose from events that transpired a year after the 2004 national and local
elections, a period marked by disquiet and unrest; events that rocked the very
foundations of the present administration.

To recall, on June 5, 2005, Press Secretary Ignacio Bunye conveyed to reporters that the
opposition was planning to destabilize the administration by releasing an audiotape of a
bugged mobile phone conversation allegedly between the President of the Republic of
the Philippines and a high-ranking official of the Commission on Elections (COMELEC).[1]

The following day, June 6, 2005, Secretary Bunye presented and played two compact
discs (CD’s) to the Malacañan Press Corps, and explained that the first contained the
wiretap, while the second, the spliced, doctored, and altered version which would
suggest that during the 2004 National and Local Elections the President instructed the
COMELEC official to manipulate in her favor the election results.[2]

Atty. Alan Paguia, former counsel of then President Joseph E. Estrada, subsequently
released, on June 7, 2005, the alleged authentic tape recordings of the wiretap.
Included, among others, in the tapes were purported conversations of the President,
First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Virgilio Garcillano, and the
late Senator Robert Barbers.[3]

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

Gonzalez, informed news reporters that persons in possession of copies of the wiretap
and media outlets broadcasting, or publishing the contents thereof, could be held liable
under the Anti-Wiretapping Act [Republic Act No. 4200[4]]. He further told newsmen, on
the following day, that he had already instructed the National Bureau of Investigation
(NBI) to monitor all radio stations and television networks for possible violations of the
said law.[5]

Then, on June 10, 2005, former NBI Deputy Director Samuel Ong presented to the
media the alleged master tape recordings of the wiretap or the so-called “mother of all
tapes,” and disclosed that their contents were wiretapped by T/Sgt. Vidal Doble of the
Intelligence Service of the Armed Forces of the Philippines (ISAFP). Ong then called for
the resignation of the President.[6]

On June 11, 2005, after several news reports, respondent National Telecommunications
Commission (NTC) issued the following press release:
Contact:
Office of the Commissioner
National Telecommunications Commission
BIR Road, East Triangle, Diliman, Quezon City
Tel. 924-4048/924-4037
E-mail:  [email protected]

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO

OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT NTC CIRCULARS ON PROGRAM
STANDARDS

In view of the unusual situation the country is in today, The (sic) National
Telecommunications Commission (NTC) calls for sobriety among the operators and
management of all radio and television stations in the country and reminds them,
especially all broadcasters, to be careful and circumspect in the handling of news
reportage, coverages of current affairs and discussion of public issues, by strictly
adhering to the pertinent laws of the country, the current program standards embodied
in  radio and television codes and the existing circulars of the NTC.

The NTC said that now, more than ever, the profession of broadcasting demands a high
sense of responsibility and discerning judgment of fairness and honesty at all times
among broadcasters amidst all these rumors of unrest, destabilization attempts and
controversies surrounding the alleged wiretapping of President GMA (sic) telephone
conversations.

Taking into consideration the country’s unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and television
networks owners/operators that the conditions of the authorizations and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority
explicitly provides that said companies shall not use its stations for the broadcasting or
telecasting of false information or willful misrepresentation.  Relative thereto, it has
come to the attention of the Commission that certain personalities are in possession of
alleged taped conversation which they claim, (sic) involve the President of the
Philippines and a Commissioner of the COMELEC regarding their supposed violation of
election laws. These personalities have admitted that the taped conversations are
product 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, (sic) it is the position of the Commission 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. If
it has been (sic) 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 Commission reiterates the pertinent NTC circulars on
program standards to be observed by radio and television stations. NTC Memorandum
Circular No. 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 and/or telecast if 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 in  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 Commission will not hesitate, after observing the requirements of due process, to
apply with full force the provisions of the said Circulars and their accompanying
sanctions on erring radio and television stations and their owners/operators.[7]
On June 14, 2005, respondent NTC held a dialogue with the Officers and Board of
Directors of the Kapisanan ng mga Broadcasters sa Pilipinas (KBP) to clarify the said
press release. As a result, the NTC and the KBP issued a joint press release which reads:
[8]

JOINT PRESS STATEMENT:  NTC AND KBP

 CALL FOR SOBRIETY, RESPONSIBLE JOURNALISM, AND OBSERVANCE OF LAW,

AND THE RADIO AND TELEVISION CODES.

 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 (SIC) PRESS FREEDOM WITH
HIGH SENSE OF RESPONSIBILITY AND DISCERNING JUDGMENT OF FAIRNESS AND
HONESTY.

 NTC DID NOT ISSUE ANY MC OR ORDER CONSTITUTING A RESTRAINT OF PRESS

FREEDOM OR CENSORSHIP.  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 IS

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 (SIC) TAPES SHOULD BE TREATED WITH SENSITIVITY

AND HANDLED RESPONSIBLY GIVING DUE CONSIDERATION TO THE PROCESSES
BEING UNDERTAKEN TO VERIFY AND VALIDATE THE AUTHENTICITY AND ACTUAL
CONTENT OF THE SAME.[9]

On June 21, 2005, petitioner Francisco Chavez, a Filipino citizen, taxpayer and law
practitioner, instituted the instant Rule 65 Petition[10] for certiorari and prohibition with
a prayer for the issuance of a temporary restraining order on the following grounds:
RESPONDENTS 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.

RESPONDENT NTC ACTED BEYOND ITS POWERS AS A REGULATORY BODY UNDER

EXECUTIVE ORDER 546 AND REPUBLIC ACT NO. 7925 WHEN IT WARNED RADIO
BROADCAST AND TELEVISION STATIONS WITH DIRE CONSEQUENCES IF THEY
CONTINUED TO AIR CONTENTS OF THE CONTROVERSIAL TAPES OF THE PRESIDENT’S
CONVERSATION.[11]
In their Comment[12] to the petition, the respondents, through the Office of the Solicitor
General (OSG), countered that: (1) the petitioner had no legal standing to file, and had
no clear case or cause of action to support, the instant petition as to warrant judicial
review;[13] (2) the respondents did not violate petitioner’s and/or the public’s
fundamental liberties of speech, of expression and of the press, and their right to
information on matters of public concern;[14] and (3) the respondent NTC did not commit
any grave abuse of discretion amounting to lack or excess of jurisdiction when it “fairly
warned” radio and television owners/operators to observe the Anti-Wiretapping Law
and pertinent NTC circulars on program standards.[15]

The Issues

For the resolution, therefore, of the Court are the following issues: (1) whether or not
petitioner has locus standi; (2) whether or not there exists an actual case or controversy
ripe for judicial review; and (3) whether or not the respondents gravely abused their
discretion to warrant remedial action from the Court.

On the Procedural Issues

Petitioner has locus standi

Petitioner has standing to file the instant petition. The test is whether the party has
alleged 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.[16] When suing as
a citizen, the person complaining must allege that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.
[17]
 When the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.[18]

In the case at bench, petitioner Chavez justifies his standing by alleging that the petition
involves the enforcement of the constitutional rights of freedom of expression and of
the press, and to information on matters of public concern.[19] As a citizen of the
Republic and as a taxpayer, petitioner has already satisfied the requisite personal stake
in the outcome of the controversy. In any case, the Court has discretion to relax the
procedural technicality on locus standi, given the liberal attitude it has shown in a
number of prior cases, climaxing in David v. Macapagal-Arroyo.[20]

The main issues have been mooted, but the case should nonetheless be resolved by
the Court 

The exercise by this Court of the power of judicial inquiry is limited to the determination
of actual cases and controversies.[21] An actual case or controversy means an existing
conflict that is appropriate or ripe for judicial determination, one that is not conjectural
or anticipatory, otherwise the decision of the court will amount to an advisory opinion.
The power does not extend to hypothetical questions since any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.[22]  Neither will the Court determine a moot question in a case in
which no practical relief can be granted. Indeed, it is unnecessary to indulge in academic
discussion of a case presenting a moot question as a judgment thereon cannot have any
practical legal effect or, in the nature of things, cannot be enforced.[23]

In the instant case, it is readily observable that the subsequent joint statement of the
respondent NTC and the Officers and Board of Directors of the KBP after their June 14,
2005 dialogue not only substantially diminished[24] but, in fact, obliterated the effects of
the earlier press warnings, thus rendering the case moot and academic. Notably, the
joint press statement acknowledged that “NTC did not issue any memorandum circular
or order constituting a restraint of press freedom or censorship.”

A case becomes moot when its purpose has become stale.[25]

Be that as it may, the Court should discuss and resolve the fundamental issues raised
herein, in observance of the rule that courts shall decide a question otherwise moot and
academic if it is capable of repetition yet evasive of review.[26]

The Dissent

The assailed press statement does not infringe on the constitutional right to free
expression 

Petitioner assails the constitutionality of respondents’ press release and statements

warning radio stations and television networks of the possible cancellation of their
licenses and of potential criminal prosecution that they may face should they broadcast
or publish the contents of the tapes. Petitioner contends that the assailed press release
and statements infringe on the freedom of expression and of the press.

I do not agree, for the following reasons:

1.  The issuance of the press release was a valid exercise of the NTC’s regulatory
authority over broadcast media.

Admittedly, freedom of expression enjoys an exalted place in the hierarchy of

constitutional rights.  But it is also a settled principle, growing out of the nature of well-
ordered civil societies that the exercise of the right is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having equal
rights, not injurious to the rights of the community or society.[27]  Consistent with this
principle, the exercise of the freedom may be the subject of reasonable government
regulation.

The broadcast media are no exception.  In fact, in Federal Communications Commission

(FCC) v. League of Women Voters in America,[28] it was held that –
(W)e have long recognized that Congress, acting pursuant to the Commerce Clause, has
power to regulate the use of this scarce and valuable national resource.  The distinctive
feature of Congress’ efforts in this area has been to ensure through the regulatory
oversight of the FCC that only those who satisfy the “public interest, convenience and
necessity” are granted a license to use radio and television broadcast frequencies.
In the Philippines, it is the respondent NTC that has regulatory powers over
telecommunications networks.  In Republic Act No. 7925,[29] the NTC is denominated as
its principal administrator, and as such shall take the necessary measures to implement
the policies and objectives set forth in the Act.  Under Executive Order 546,[30] the NTC is
mandated, among others, to establish and prescribe rules, regulations, standards and
specifications in all cases related to the issued Certificate of Public Convenience,
promulgate rules and regulations as public safety and interest may require, and
supervise and inspect the operation of radio stations and telecommunications facilities.
[31]
  The NTC exercises quasi-judicial powers.[32]

The issuance of the press release by NTC was well within the scope of its regulatory and
supervision functions, part of which is to ensure that the radio and television stations
comply with the law and the terms of their respective authority.  Thus, it was not
improper for the NTC to warn the broadcast media that the airing of taped materials, if
subsequently shown to be false, would be a violation of law and of the terms of their
certificate of authority, and could lead, after appropriate investigation, to the
cancellation or revocation of their license.

2.  The press release was not in the nature of “prior restraint” on freedom of expression

Courts have traditionally recognized two cognate and complementary facets of freedom
of expression, namely: freedom from censorship or prior restraint and freedom from
subsequent punishment.  The first guarantees untrammeled right to expression, free
from legislative, administrative or judicial orders which would effectively bar speech or
publication even before it is made.  The second prohibits the imposition of any sanction
or penalty for the speech or publication after its occurrence.  Freedom from prior
restraint has enjoyed the widest spectrum of protection, but no real constitutional
challenge has been raised against the validity of laws that punish abuse of the freedom,
such as the laws on libel, sedition or obscenity.

“Prior restraint” is generally understood as an imposition in advance of a limit upon

speech or other forms of expression.[33]  In determining whether a restriction is a prior
restraint, one of the key factors considered is whether the restraint prevents the
expression of a message.[34]  In Nebraska Press Association v. Stuart,[35] the U.S. Supreme
Court declared:
A prior restraint… by definition, has an immediate and irreversible sanction.  If it can be
said that a threat of criminal or civil sanctions after publication “chills” speech, prior
restraint “freezes” it at least for the time.
As an aspect of freedom of expression, prior restraint should not be confused with
subsequent punishment.  In Alexander v. U.S.,[36] petitioner’s complaint was that the
RICO forfeiture provisions on businesses dealing in expressive materials constituted
“prior restraint” because they may have an improper “chilling” effect on free expression
by deterring others from engaging in protected speech.  In rejecting the petitioner’s
contention and ruling that the forfeiture is a permissible criminal punishment and not a
prior restraint on speech, the U.S. Supreme Court said:
The term prior restraint is used “to describe administrative and judicial orders
forbidding certain communications when issued in advance of the time that such
communications are to occur.”  Temporary restraining orders and permanent
injunctions – i.e., court orders that actually forbid speech activities – are classic
examples of prior restraints.

xxxx

Finally, petitioner’s proposed definition of the term “prior restraint” would undermine
the time-honored distinction between barring speech in the future and penalizing past
speech.  The doctrine of prior restraint originated in the common law of England where
prior restraints of the press were not permitted, but punishment after publication was. 
This very limited application of the principle of freedom of speech was held inconsistent
with our First Amendment as long ago as Grosjean v. American Press Co.  While we may
have given a broader definition to the term “prior restraint” than was given to it in
English common law, our decisions have steadfastly preserved the distinction between
prior restraints and subsequent punishments.  Though petitioner tries to dismiss this
distinction as “neither meaningful nor useful,” we think it is critical to our First
Amendment jurisprudence.  Because we have interpreted the First Amendment as
providing greater protection from prior restraints than from subsequent punishments, it
is important for us to delineate with some precision the defining characteristics of a
prior restraint.  To hold that the forfeiture order in this case constituted a prior restraint
would have the exact opposite effect.  It would blur the line separating prior restraints
from subsequent punishments to such a degree that it would be impossible to
determine with any certainty whether a particular measure is a prior restraint or not.
A survey of free speech cases in our jurisdiction reveals the same disposition: there is
prior restraint when the government act forbids speech, prohibits the expression of a
message, or imposes onerous requirements or restrictions for the publication or
dissemination of ideas.  In theses cases, we did not hesitate to strike down the
administrative or judicial order for violating the free expression clause in the
Constitution.

Thus, in Primicias v. Fugoso[37] and in Reyes v. Bagatsing,[38] the refusal, without valid

cause, of the City Mayor of Manila to issue a permit for a public assembly was held to
have infringed freedom of expression.  In Burgos v. Chief of Staff[39] and in Eastern
Broadcasting v. Dans,[40] the closure of the printing office of the newspapers, We
Forum and Metropolitan Mail, and of radio station DYRE in Cebu, respectively, was ruled
as violation of freedom of the press.

On election-related restrictions, Mutuc v. COMELEC[41] invalidated the respondent’s

prohibition against the use of taped jingles in mobile units of candidates; Adiong v.
COMELEC[42] struck down the COMELEC’s resolution limiting the posting of candidates’
decals and stickers only in designated areas and not allowing them in private or public
vehicles; Sanidad v. COMELEC[43] declared as unconstitutional the COMELEC prohibition
on newspaper columnists and radio commentators to use their columns or programs to
campaign for or against the ratification of the organic act establishing the Cordillera
Autonomous Region; ABS-CBN Broadcasting Corporation v. COMELEC [44] annulled the
COMELEC resolution prohibiting the conduct of exit polls; and Social Weather Stations v.
COMELEC[45] nullified Section 5.4 of Republic Act No. 9006 and Section 24(h) of COMELEC
Resolution 3636 which prohibited the publication of pre-election survey results within
specified periods.

On movies and television, the injunctive writs issued by lower courts against the movie
producers in Ayer Productions Pty. Ltd. v. Capulong[46] and in Viva Productions v. Court of
Appeals[47] were invalidated, while in Iglesia ni Cristo v. Court of Appeals,[48] the X-rating
given by MTRCB to the television show was ruled as grave abuse of discretion.

But there is no parity between these cases and the case at bench.  Unlike the
government acts in the above-cited cases, what we have before us now is merely a
press release—not an order or a circular—warning broadcast media on the airing of an
alleged taped conversation, with the caveat that should its falsity be subsequently
established, the act could lead to the revocation or cancellation of their licenses, after
appropriate investigation.  The warnings on possible license revocation and criminal
prosecution are simply what they are, mere warnings.  They have no compulsive effect,
as they do not impose a limit on speech or other forms of expression nor do they
prevent the expression of a message.

The judicial angle of vision in testing the validity of the assailed press release against the
prior restraint standard is its operation and substance.  The phrase “prior restraint” is
not a self-wielding sword, nor should it serve as a talismanic test.  What is needed is a
practical assessment of its operation in specific or particular circumstances.[49]

Significant are our own decisions in a number of cases where we rejected the
contention that there was infringement of freedom of expression.  In Lagunzad v. Vda.
de Gonzales,[50] after balancing the right to privacy of Padilla’s family with the right to
free expression of the movie producer, we did not deem the Licensing Agreement for
the movie depiction of the life of Moises Padilla as imposition of an impermissible limit
on free speech.  In Presidential Commission on Good Government (PCGG) v.
Nepomuceno,[51] we refused to consider the PCGG takeover of radio station DWRN as an
infringement on freedom of the press.  In Tolentino v. Secretary of Finance,[52] we did not
yield to the proposition of the press that the imposition of value added tax (VAT) on the
gross receipts of newspapers from advertisements and on their acquisition of paper, ink
and services for publication was an abridgment of press freedom.  In Lagunzad, we said
that while the License Agreement allowed the producer to portray in a movie the life of
Moises Padilla, it did not confer poetic license to incorporate fictional embellishments. 
The takeover in PCGG was merely intended to preserve the assets, funds and properties
of the station while it maintained its broadcasting operations.  The VAT in Tolentino did
not inhibit or impede the circulation of the newspapers concerned.

Similarly, in the instant case, the issuance of the press release was simply part of the
duties of the NTC in the enforcement and administration of the laws which it is tasked
to implement.  The press release did not actually or directly prevent the expression of a
message.  The respondents never issued instructions prohibiting or stopping the
publication of the alleged wiretapped conversation.  The warning or advisory in question
did not constitute suppression, and the possible in terrorem effect, if any, is not prior
restraint.  It is not prior restraint because, if at all, the feared license revocation and
criminal prosecution come after the publication, not before it, and only after a
determination by the proper authorities that there was, indeed, a violation of law.

The press release does not have a “chilling effect” because even without the press
release, existing laws—and rules and regulations—authorize the revocation of licenses
of broadcast stations if they are found to have violated penal laws or the terms of
their authority.[53] The majority opinion emphasizes the chilling effect of the challenged
press releases—the fear of prosecution, cancellation or revocation of license by virtue of
the said press statements.[54] With all due respect, the majority loses sight of the fact
that the press statements are not a prerequisite to prosecution, neither does the
petition demonstrate that prosecution is any more likely because of them. If the
prosecutorial arm of the Government and the NTC deem a media entity’s act to be
violative of our penal laws or the rules and regulations governing broadcaster’s licenses,
they are free to prosecute or to revoke the licenses of the erring entities with or
without the challenged press releases.[55]

The petitioner likewise makes capital of the alleged prior determination and conclusion
made by the respondents that the continuous airing of the tapes is a violation of the
Anti-Wiretapping Law and of the conditions of the authority granted to the broadcast
stations.  The assailed portion of the press release reads:
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 commission 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.
However, that part of the press statement should not be read in isolation, but in the
context of the entire paragraph, the rest of which reads:
If 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.
Obviously, this latter portion qualifies the earlier part of the paragraph.  Only when it
has been sufficiently established, after a prosecution or appropriate investigation, that
the tapes are false or fraudulent may there be a cancellation or revocation of the
station’s license.  There is no gainsaying that the airing of false information or willful
misrepresentation constitutes a valid ground for revocation of the license, and so is
violation of the Anti-Wiretapping Law which is a criminal offense.  But that such
revocation of license can only be effected after an appropriate investigation clearly
shows that there are adequate safeguards available to the radio and television stations,
and that there will be compliance with the due process clause.

It is noteworthy that in the joint press statement issued on June 14, 2005 by the NTC
and the Kapisanan ng mga Broadcasters sa Pilipinas, there is an acknowledgement by
the parties that NTC “did not issue any MC (Memorandum Circular) or order constituting
a restraint of press freedom or censorship.” If the broadcasters who should be the most
affected by the assailed NTC press release, by this acknowledgement, do not feel
aggrieved at all, we should be guided accordingly. We cannot be more popish than the
pope.

Finally, we believe that the “clear and present danger rule”—the universally-accepted
norm for testing the validity of governmental intervention in free speech—finds no
application in this case precisely because there is no prior restraint.
3.  The penal sanction in R.A. 4200 or the revocation of the license for violation of the
terms and conditions of the provisional authority or certificate of authority is permissible
punishment and does not infringe on freedom of expression.

The Anti-Wiretapping Law (Republic Act 4200) is a penal statute.  Over the years, no
successful challenge to its validity has been sustained.  Conviction under the law should
fittingly be a just cause for the revocation of the license of the erring radio or television
station.

Pursuant to its regulatory authority, the NTC has issued memorandum circulars covering
Program Standards to be followed by radio stations and television networks, a common
provision of which reads:
All radio broadcasting and television stations shall provide adequate public service time,
shall conform to the ethics of honest enterprise; and shall not use its stations for the
broadcasting or telecasting of obscene or indecent language, speech and/or scene, or
for the dissemination of false information or willful misrepresentation, or to the
detriment of the public health or to incite, encourage or assist in subversive or
treasonable acts.[56]
Accordingly, in the Provisional Authority or the Certificate of Authority issued to all
radio, television and cable TV stations, which all licensees must faithfully abide with,
there is incorporated, among its terms and conditions, the following clause:
Applicant-Grantee shall provide free of charge, a minimum of thirty (30) hours/month
time or access channel thru its radio/television station facilities to the National
Government to enable it to reach the population on important public issues; assist
public information and education; conform with the ethics of honest enterprise; and
shall not use its stations for the telecasting of obscene or for dissemination of false
information or willful misrepresentation, or do any such act to the detriment of public
welfare, health, morals or to incite, encourage, or assist in any treasonous, rebellious,
or subversive acts/omissions.
Undoubtedly, this is a reasonable standard of conduct demanded of the media outlets. 
The sanction that may be imposed for breach thereof—suspension, cancellation or
revocation of the station’s license after an appropriate investigation has sufficiently
established that there was a breach—is also reasonable.  It cannot be characterized as
impermissible punishment which violates freedom of expression.

There is no transgression of the people’s right to information on matters of public

concern.

With the foregoing disquisition that there was no infringement on freedom of

expression, there is no case for violation of the right to information on matters of public
concern.  Indeed, in the context of the prevailing factual milieu of the case at bench, the
petitioner’s contention can thrive only if there is a showing that the act of the
respondents constituted prior restraint.

There is, therefore, no further need to belabor the point.

NTC did not commit grave abuse of discretion when it issued the press release

Grave abuse of discretion is defined as such capricious or whimsical exercise of

judgment equivalent to lack of jurisdiction.  The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law as where the power is
exercised in an arbitrary and despotic manner by reason of passion or hostility.[57]  For
grave abuse of discretion to be present, petitioner must show that the respondents
violated or ignored the Constitution, the laws or existing jurisprudence.[58]

As discussed earlier, respondents, in making the questioned press releases, did not
violate or threaten to violate the constitutional rights to free expression and to
information on matters of public concern. No grave abuse of discretion can be imputed
to them.

One final word.  With the benefit of hindsight, it is noted that from the time the assailed
press releases were issued and up to the present, the feared criminal prosecution and
license revocation never materialized. They remain imagined concerns, even after the
contents of the tapes had been much talked about and publicized.

I therefore vote to dismiss the petition for certiorari and prohibition.

[1]
 Rollo, pp. 6-7.

[2]
 Id. at 7 and 58.

[3]
 Id. at 8 and 59.

[4]
 Entitled “An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of
the Privacy of Communication, and for Other Purposes.”

[5]
 Rollo, pp. 8-9 and 59.

[6]
 Id. at 10 and 59.

[7]
 Id. at 109-110.

[8]
 Id. at 116.

[9]
 Id. at 111-112.

[10]
 Id. at 3-42.

[11]
 Id. at 18.

[12]
 Id. at 56-83.

[13]
 Id. at 64-67.

[14]
 Id. at 68-75.

[15]
 Id. at 75-82.
[16]
 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.

[17]
 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

[18]
 David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400,
171489 and 171424, May 3, 2006, 489 SCRA 160, 223.

[19]
 Rollo, p. 15.

[20]
 Supra note 18.

[21]
 Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case
explains the standards that have to be followed in the exercise of the power of judicial
review, namely: (1) the existence of an appropriate case; (2) an interest personal and
substantial by the party raising the constitutional question; (3) the plea that the function
be exercised at the earliest opportunity; and (4) the necessity that the constitutional
question be passed upon in order to decide the case.

[22]
 La Bugal-B’laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).

[23]
 Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.

[24]
 See Multimedia Holdings Corporation v. Circuit Court of Florida, St. John’s County, 544
U.S. 1301, 125 S.Ct. 1624, 1626 (2005).

[25]
 Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.

[26]
 Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22, 2006, 499 SCRA 434, 447.

[27]
 Primicias v. Fugoso, 80 Phil. 71 (1980), quoted in Justice Azcuna’s ponencia in Bayan
v. Ermita, G.R. No. 169838, April 25, 2006.

[28]
 468 U.S. 364 (1984).

[29]
 An Act to Promote and Govern the Development of Philippine Telecommunications
and the Delivery of Public Telecommunications.

[30]
 Dated July 23, 1979.

[31]
 Section 15(e), (g), (h), Executive Order No. 546.

[32]
 Section 16, Executive Order No. 546.

[33]
 State v. Haley, 687 P.2d 305, 315 (1984).

[34]
 Murray v. Lawson, 138 N.J. 206, 222; 649 A.2d 1253, 1261 (1994).

[35]
 427 U.S. 539, 559 (1976).
[36]
 510 U.S. 909, 114 S.Ct. 295, June 28, 1993.

[37]
 80 Phil. 71 (1948).

[38]
 No. L-65366, November 9, 1983, 125 SCRA 553, 564.

[39]
 No. L-64261, December 26, 1984, 133 SCRA 800, 816.

[40]
 137 SCRA 647.

[41]
 36 SCRA 228.

[42]
 G.R. No. 103956, March 31, 1992, 207 SCRA 712, 715.

[43]
 G.R. No. 90878, January 29, 1990, 181 SCRA 529, 534-535.

[44]
 G.R. No. 133486, January 28, 2000.

[45]
 G.R. No. 147571, May 5, 2001, 357 SCRA 496, 506-507.

[46]
 Nos. L-82380 and L-82398, April 29, 1988, 160 SCRA 861.

[47]
 G.R. No. 123881, March 13, 1997.

[48]
 G.R. No. 119673, July 26, 1996, 259 SCRA 529.

[49]
 Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-442; 77 S.Ct. 1325, 1328 (1957).

[50]
 181 Phil. 45.

[51]
 G.R. No. 78750, April 20, 1990, 184 SCRA 449, 462-463.

[52]
 G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 and
115931, August 25, 1994, 235 SCRA 630, 675-682; see also Court’s Resolution on the
motions for reconsideration, October 30, 1995, 249 SCRA 628, 652-656.

[53]
 Republic Act No. 3846; Executive Order No. 546; see pertinent memorandum
circulars at (visited: January 3, 2008); see also terms and conditions of provisional
authority and/or certificate of authority granted to radio and television stations, rollo,
pp. 119-128.

[54]
 See Multimedia Holdings Corporation v. Circuit Court of Florida, St. John’s
County, supra note 24, at 1626-1627.

[55]
 Id.

[56]
 NTC Memorandum Circular No. 22-89.
[57]
 Defensor-Santiago v. Guingona, 359 Phil. 276, 304 (1998).

[58]
 Republic of the Philippines v. COCOFED, 423 Phil. 735, 774 (2001); Ang Bagong
Bayani-OFW Labor Party v. COMELEC, 412 Phil. 308, 340 (2001).

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1.            Freedom from censorship and prior restraint

c.        Adiong vs. COMELEC, 207 SCRA 712

G.R. No. 103956

EN BANC

[ G.R. No. 103956, March 31, 1992 ]

BLO UMPAR ADIONG, PETITIONER, VS. COMMISSION ON ELECTIONS, RESPONDENT.

DECISION

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections
(COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or
private, and limit their location or publication to the authorized posting areas that it
fixes.
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to
its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos.
6646 and 7166 and other election laws.
Section 15(a) of the resolution provides:
"SEC. 15. Lawful Election Propaganda. – The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other
written or printed materials not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length Provided, That decals and stickers may be posted only
in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof."

Section 21 (f) of the same resolution provides:

"SEC. 21(f) Prohibited forms of election propaganda.?

It is unlawful:

xxx                          xxx                               xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election
propaganda in any place, whether public or private, mobile or stationary, except in the
COMELEC common posted areas and/or billboards, at the campaign headquarters of the
candidate or political party, organization or coalition, or at the candidate's own
residential house or one of his residential houses, if he has more than one: Provided,
that such posters or election propaganda shall not exceed two (2) feet by three (3) feet
in size." (Emphasis supplied)

xxx                            xxx                               xxx

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

Omnibus Election Code on lawful election propaganda which provides:
"Lawful election propaganda. -- Lawful election propaganda shall include:

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

size not more than eight and one-half inches in width and fourteen inches in length;

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

(c)   Cloth, paper or cardboard posters, whether framed or posted, with an area not
exceeding two feet by three feet, except that, at the site and on the occasion of a public
meeting or rally, or in announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be allowed: Provided, That said
streamers may not be displayed except one week before the date of the meeting or rally
and that it shall be removed within seventy-two hours after said meeting or rally; or

(d)   All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing where
all the interested parties were given an equal opportunity to be heard: Provided, That
the Commission's authorization shall be published in two newspapers of general
circulation throughout the nation for at least twice within one week after the
authorization has been granted. (Section 37, 1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda.- In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election
propaganda in any place, whether private, or public, except in the common poster areas 
and/or bilboards provided in the immediately preceding section, at the candidate's own
residence, or at the campaign headquarters of the candidate or political party: Provided,
That such posters or election propaganda shall in no case exceed two (2) feet by three
(3) feet in area: Provided Further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by
eight (8) feet each may be displayed five (5) days before the date of the meeting or rally,
and shall be removed within twenty-four (24) hours after said meeting or rally; x x x"
(Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections
now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and
stickers in "mobile" places like cars and other moving vehicles. According to him such
prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of
Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio,
television and print political advertisements, he, being a neophyte in the field of politics
stands to suffer grave and irreparable injury with this prohibition. The posting of decals
and stickers on cars and other moving vehicles would be his last medium to inform the
electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the
petitioner states that as of February 22, 1992 (the date of the petition) he has not
received any notice from any of the Election Registrars in the entire country as to the
location of the supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of
decals and stickers on "mobile" places whether public or private except in designated
areas provided for by the COMELEC itself is null and void on constitutional grounds.
First -- the prohibition unduly infringes on the citizen's fundamental right of free
speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest
substantial enough to warrant the kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech clause which we
have adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.
All of the protections expressed in the Bill of Rights are important but we have
accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US
516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is
the matrix, the indispensable condition of nearly every other freedom. (Palko v.
Connecticut 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to
imagine how the other provisions of the Bill of Rights and the right to free elections may
be guaranteed if the freedom to speak and to convince or persuade is denied and taken
away.
 We have adopted the principle that debate on public issues should be uninhibited,
robust, and wide open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials. (New York Times Co. v.
Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 [1964]; cited in the concurring opinion of then
Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316
[1984]) Too many restrictions will deny to people the robust, uninhibited, and wide
open debate, the generating of interest essential if our elections will truly be free, clean,
and honest.
We have also ruled that the preferred freedom of expression calls all the more for
the utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on
Elections, supra)
The determination of the limits of the Government's power to regulate the exercise
by a citizen of his basic freedoms in order to promote fundamental public interests or
policy objectives is always a difficult and delicate task. The so-called balancing of
interests - individual freedom on one hand and substantial public interests on the other
- is made even more difficult in election campaign cases because the Constitution also
gives specific authority to the Commission on Elections to supervise the conduct of free,
honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election
period is granted regulatory powers vis-a-vis the conduct and manner of elections, to
wit:
"SEC. 4. The Commission may, during the election period supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants special
privileges, or concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or controlled corporation
or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the
object of holding free, orderly, honest, peaceful and credible elections." (Article IX(c)
section 4)

The variety of opinions expressed by the members of this Court in the recent case
of National Press Club v. Commission on Elections (G. R. No. 102653, March 5, 1991) and
its companion cases underscores how difficult it is to draw a dividing line between
permissible regulation of election campaign activities and indefensible repression
committed in the name of free and honest elections. In the National Press Club case, the
Court had occasion to reiterate the preferred status of freedom of expression even as it
validated COMELEC regulation of campaigns through political advertisements. The gray
area is rather wide and we have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate
campaign activity is fairly limited and, in the opinion of some, too short, it becomes
obvious that unduly restrictive regulations may prove unfair to affected parties and the
electorate.
 For persons who have to resort to judicial action to strike down requirements which
they deem inequitable or oppressive, a court case may prove to be a hollow remedy.
The judicial process, by its very nature, requires time for rebuttal, analysis and
reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an
unallowably restrictive regulation or ruling, time which is of the essence to a candidate
may have lapsed and irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak by a candidate or
party and freedom to know on the part of the electorate are invoked against actions
intended for maintaining clean and free elections, the police, local officials and
COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of
the citizen and the State's power to regulate are not antagonistic. There can be no free
and honest elections if in the efforts to maintain them, the freedom to speak and the
right to know are unduly curtailed.
There were a variety of opinions expressed in
the National Press Club v. Commission on Elections (supra) case but all of us were
unanimous that regulation of election activity has its limits. We examine the limits of
regulation and not the limits of free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election campaign activity may
not pass the test of validity if it is too general in its terms or not limited in time and
scope in its application, if it restricts one's expression of belief in a candidate or one's
opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the
regulatory measure bears no clear and reasonable nexus with the constitutionally
sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some
rather strong dissents, in National Press Club, we find the regulation in the present case
of a different category. The promotion of a substantial Government interest is not
clearly shown.
"A government regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673."
(City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving
vehicles does not endanger any substantial government interest. There is no clear public
interest threatened by such activity so as to justify the curtailment of the cherished
citizen's right of free speech and expression. Under the clear and present danger rule
not only must the danger be patently clear and pressingly present but the evil sought to
be avoided must be so substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled:
"The case confronts us again with the duty our system places on the Court to say where
the individual's freedom ends and the State's power begins. Choice on that border, now
as always delicate, is perhaps more so where the usual presumption supporting
legislation is balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment x x x That priority
gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is
the character of the right, not of the limitation, which determines what standard
governs the choice x x x.

For these reasons any attempt to restrict those liberties must be justified by clear public 
interest, threatened not doubtfully or remotely, but by clear and present danger. The
rational connection between the remedy provided and the evil to be curbed, which in
other context might support legislation against attack on due process grounds, will not
suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would
restrain orderly discussion and persuasion, at appropriate time and place, must have
clear support in public danger, actual or impending. Only the greatest abuses,
endangering permanent interests, give occasion for permissible limitation. (Thomas V.
Collins, 323 US 516 [1945]." (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned

prohibition is not so much that of the candidate or the political party. The regulation
strikes at the freedom of an individual to express his preference and, by displaying it on
his car, to convince others to agree with him. A sticker may be furnished by a candidate
but once the car owner agrees to have it placed on his private vehicle, the expression
becomes a statement by the owner, primarily his own and not of anybody else.
If, in the National Press Club case, the Court was careful to rule out restrictions on
reporting by newspapers or radio and television stations and commentators or
columnists as long as these are not covertly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an individual person
who pastes a sticker or decal on his private property.
Second -- the questioned prohibition premised on the statute and as couched in the
resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends the constitutional
principle that a governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).
"In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose.

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

ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia,
without a license, pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155,
60 S Ct 146, the Court dealt with ordinances of four different municipalities which either
banned or imposed prior restraints upon the distribution of handbills. In holding the
ordinances invalid, the court noted that where legislative abridgment of ‘fundamental
personal rights and liberties’ is asserted, 'the courts should be astute to examine the
effect of the challenged legislation. Mere legislative preferences or beliefs respecting
matters of pubic convenience may well support regulation directed at other personal
activities, but be insufficient to justify such as diminishes the exercise of rights so vital to
the maintenance of democratic institutions.' 308 US, at 161. In Cantwell v Connecticut,
310 US 296, 84 L ed 1213, 60 S Ct 900, 128 ALR 1352, the Court said that '[c]onduct
remains subject to regulation for the protection of society,' but pointing out that in each
case ‘the power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US
479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and
one-half (8-1/2) inches in width and fourteen (14) inches in
length in any place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and stickers
should be posted is so broad that it encompasses even the citizen's private property,
which in this case is a privately-owned vehicle. In consequence of this prohibition,
another cardinal rule prescribed by the Constitution would be violated. Section 1, Article
III of the Bill of Rights provides that no person shall be deprived of his property without
due process of law:
"Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects
these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790,
18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
person's acquisitions without control or diminution save by the law of the land. 1
Cooley's Bl. Com. 127." (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and
stickers on cars and other moving vehicles, the candidate needs the consent of the
owner of the vehicle. In such a case, the prohibition would not only deprive the
owner who consents to such posting of the decals and stickers the use of his property
but more important, in the process, it would deprive the citizen of his right to free
speech and information:
"Freedom to distribute information to every citizen wherever he desires to receive it is
so clearly vital to the preservation of a free society that, putting aside reasonable police
and health regulations of time and manner of distribution, it must be fully preserved.
The danger of distribution can so easily be controlled by traditional legal methods
leaving to each householder the full right to decide whether he will receive strangers as
visitors, that stringent prohibition can serve no purpose but that forbidden by the
constitution, the naked restriction of the dissemination of ideas." (Martin v. City of
Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
 The right to property may be subject to a greater degree of regulation but when this
right is joined by a "liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable. The burden is not met in
this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or private, except
in the common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front door or on a
post in his yard. While the COMELEC will certainly never require the absurd, there are
no limits to what overzealous and partisan police officers, armed with a copy of the
statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the
posting of decals or stickers in the privacy of one's living room or bedroom. This is
delegation running riot. As stated by Justice Cardozo in his concurrence
in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935]), "The delegated
power is unconfined and vagrant . . . This is delegation running riot. No such plentitude
of power is susceptible of transfer."
Third -- the constitutional objective to give a rich candidate and a poor candidate
equal opportunity to inform the electorate as regards their candidacies, mandated by
Article II Section 26 and Article XIII section 1 in relation to Article IX (c) section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal
significance.
Under section 26 Article II of the Constitution, "The State shall
guarantee equal access to opportunities for public service, x x x while under section 1,
Article XIII thereof "The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles,
pedicabs and other moving vehicles needs the consent of the owner of the vehicle.
Hence, the preference of the citizen becomes crucial in this kind of election propaganda
not the financial resources of the candidate. Whether the candidate is rich and,
therefore, can afford to dole-out more decals and stickers or poor and without the
means to spread out the same number of decals and stickers is not as important as the
right of the owner to freely express his choice and exercise his right of free speech. The
owner can even prepare his own decals or stickers for posting on his personal property.
To strike down this right and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places whether
public or private except in the authorized areas designated by the COMELEC becomes
censorship which cannot be justified by the Constitution:
"x x x The concept of the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the highest official or the
lowest functionary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the topmost rung
in the legal hierarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of
statutes must ever be on guard lest the restrictions on its authority, either substantive
or formal, be transcended. The Presidency in the execution of the laws cannot ignore or
disregard what it ordains. In its task of applying the law to the facts as found in deciding
cases, the judiciary is called upon to maintain inviolate what is decreed by the
fundamental law. Even its power of judicial review to pass upon the validity of the acts
of the coordinate branches in the course of adjudication is a logical corollary of this
basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being
the supreme law." (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year’s national and local elections call for a more
liberal interpretation of the freedom to speak and the right to know. It is not alone the
widest possible dissemination of information on platforms and programs which concern
us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of
candidates and elective positions involved has resulted in the peculiar situation where
almost all voters cannot name half or even two-thirds of the candidates running for
Senator. The public does not know who are aspiring to be elected to public office.
There are many candidates whose names alone evoke qualifications, platforms,
programs and ideologies which the voter may accept or reject. When a person attaches
a sticker with such a candidate's name on his car bumper, he is expressing more than
the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule
against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15(a) of
Resolution No. 2347 of the Commission on Elections providing that "decals and stickers
may be posted only in any of the authorized posting areas provided in paragraph (f) of
Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.

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

Regalado, Davide, Jr., Romero, and  Nocon, JJ., concur.
Cruz, J.,  see concurrence.
Feliciano  and Bellosillo, JJ.,  on leave.

CONCURRING
CRUZ, J.:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in
National Press Club v. Commission on Elections. The stand taken by the Court in the case
at bar is a refreshing change from its usual deferential attitude toward authoritarianism
as a persistent vestige of the past regime. After the disappointing decision in the ad ban
case, I hope that the present decision will guide us to the opposite direction, toward
liberty and the full recognition of freedom of expression. This decision is a small step in
rectifying the errors of the past, but it is a step just the same, and on the right track this
time.
Regarding the sticker ban, I think we are being swamped with regulations that
unduly obstruct the free flow of information so vital in an election campaign. The
Commission on Elections seems to be bent on muzzling the candidates and imposing all
manner of silly restraints on their efforts to reach the electorate. Reaching the
electorate is precisely the purpose of an election campaign, but the Commission on
Elections obviously believes that the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the
qualifications of those vying for public office, what the Commission on Elections should
concentrate on is the education of the voters on the proper exercise of their suffrages.
This function is part of its constitutional duty to supervise and regulate elections and to
prevent them from deteriorating into popularity contests where the victors are chosen
on the basis not of their platforms and competence but on their ability to sing or dance,
or play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit
some such dubious talent irrelevant to their ability to discharge a public office. The
public service is threatened with mediocrity and indeed sheer ignorance if not stupidity.
That is the problem the Commission on Elections should try to correct instead of
wasting its time on much trivialities as where posters shall be allowed and stickers
should not be attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional
entertainers whose only asset is the support of their drooling fans, the demagogues
who drumbeat to the clink of coins their professed present virtues and past innocence,
the opportunists for whom flexibility is a means of political survival and even of financial
gain, and, most dangerous of all, the elements of our electorate who would, with their
mindless ballots, impose these office-seekers upon the nation. These are the evils the
Commission on Elections should try to correct, not the inconsequential and inane
question of where stickers should be stuck. I have nothing but praise for the zeal of the
Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it
is barking up the wrong tree.

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1.            Freedom from censorship and prior restraint

d.      Osmena vs. COMELEC, March 31, 1998

351 Phil. 692

EN BANC

[ G.R. No. 132231, March 31, 1998 ]

EMILIO M. R. OSMEÑA AND PABLO P. GARCIA, PETITIONERS, VS. THE COMMISSION
ON ELECTIONS, RESPONDENT.

D E C I S I O N 

MENDOZA,  J.:

This is a petition for prohibition, seeking a reexamination of the validity of §11(b)

of R.A. No. 6646, the Electoral Reforms Law of 1987, which prohibits mass media from
selling or giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections.[1] Petitioners are candidates for public
office in the forthcoming elections. Petitioner Emilio M. R. Osmeña is candidate for
President of the Philippines, while petitioner Pablo P. Garcia is governor of Cebu
Province, seeking reelection. They contend that events after the ruling in National Press
Club v. Commission on Elections [2] “have called into question the validity of the very
premises of that [decision].”[3]

There Is  No  Case or Controversy to Decide,

          Only an Academic Discussion to Hold

 NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646 against claims that it
abridged freedom of speech and of the press.[4] In urging a reexamination of that ruling,
petitioners claim that experience in the last five years since the decision in that case has
shown the “undesirable effects” of the law because “the ban on political advertising has
not only failed to level the playing field, [but] actually worked to the grave disadvantage
of the poor candidate[s]”[5] by depriving them of a medium which they can afford to pay
for while their more affluent rivals can always resort to other means of reaching voters
like airplanes, boats, rallies, parades, and handbills.
No empirical data have been presented by petitioners to back up their claim,
however. Argumentation is made at the theoretical and not the practical level. Unable
to show the “experience” and “subsequent events” which they claim invalidate the
major premise of our prior decision, petitioners now say “there is no need for ‘empirical
data’ to determine whether the political ad ban offends the Constitution or
not.”[6] Instead they make arguments from which it is clear that their disagreement is
with the opinion of the Court on the constitutionality of §11(b) of R.A. No. 6646 and that
what they seek is a reargument on the same issue already decided in that case. What is
more, some of the arguments were already considered and rejected in the NPC  case.[7]
Indeed, petitioners do not complain of any harm suffered as a result of the
operation of the law. They do not complain that they have in any way been
disadvantaged as a result of the ban on media advertising. Their contention that,
contrary to the holding in NPC, §11(b) works to the disadvantage of candidates who do
not have enough resources to wage a campaign outside of mass media can hardly apply
to them. Their financial ability to sustain a long drawn-out campaign, using means other
than the mass media to communicate with voters, cannot be doubted. If at all, it is
candidates like intervenor Roger Panotes, who is running for mayor of Daet, Camarines
Norte, who can complain against §11(b) of R.A. No. 6646. But Panotes is for the law
which, he says, has “to some extent, reduced the advantages of moneyed politicians
and parties over their rivals who are similarly situated as ROGER PANOTES.” He claims
that “the elimination of this substantial advantage is one reason why ROGER PANOTES
and others similarly situated have dared to seek an elective position this coming
elections.”[8]
What petitioners seek is not the adjudication of a case but simply the holding of an
academic exercise. And since a majority of the present Court is unpersuaded that its
decision in NPC is founded in error, it will suffice for present purposes simply to reaffirm
the ruling in that case. Stare decisis et non quieta movere. This is what makes the
present case different from the overruling decisions[9] invoked by petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in
order to clarify our own understanding of its reach and set forth a theory of freedom of
speech.
No  Ad Ban, Only a Substitution of

          COMELEC Space and COMELEC

          Time for the Advertising Page and
          Commercials in Mass Media

The term political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is
misleading, for even as §11(b) prohibits the sale or donation of print space and air time
to political candidates, it mandates the COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no suppression of political ads but only
a regulation of the time and manner of advertising.
Thus, §11(b) states:
Prohibited Forms of Election Propaganda. — In addition to the forms of election
propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

....

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

On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:
SEC. 90. Comelec space. -— The Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as “Comelec Space” wherein
candidates can announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within the area in
which the newspaper is circulated. (Sec. 45, 1978 EC).

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

The law’s concern is not with the message or content of the ad but with ensuring
media equality between candidates with “deep pockets,” as Justice Feliciano called
them in his opinion of the Court in NPC, and those with less resources.[10] The law is part
of a package of electoral reforms adopted in 1987. Actually, similar effort was made in
1970 to equalize the opportunity of candidates to advertise themselves and their
programs of government by requiring the COMELEC to have a COMELEC space in
newspapers, magazines, and periodicals and prohibiting candidates to advertise outside
such space, unless the names of all the other candidates in the district in which the
candidate is running are mentioned “with equal prominence.” The validity of the law
was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally divided (5-5),
however, with the result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions such as those
imposed by the election law provisions in question in this case and those found to be
unconstitutional in the cases cited by both petitioners and the Solicitor General, who
has taken the side of petitioners. In Adiong v. COMELEC[12]  the Court struck down a
regulation of the COMELEC which prohibited the use of campaign decals and stickers on
mobile units, allowing their location only in the COMELEC common poster area or
billboard, at the campaign headquarters of the candidate or his political party, or at his
residence. The Court found the restriction “so broad that it encompasses even the
citizen’s private property, which in this case is a privately-owned car.” [13] Nor was there a
substantial governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal
significance.[14]

Mutuc v. COMELEC[15]  is of a piece with Adiong.  An order of the COMELEC

prohibiting the playing of taped campaign jingles through sound systems mounted on
mobile units was held to be an invalid prior restraint without any apparent
governmental interest to promote, as the restriction did not simply regulate time, place
or manner but imposed an absolute ban on the use of the jingles. The prohibition was
actually content-based and was for that reason bad as a prior restraint on speech, as
inhibiting as prohibiting the candidate himself to use the loudspeaker. So is a ban
against newspaper columnists expressing opinion on an issue in a plebiscite a content
restriction which, unless justified by compelling reason, is unconstitutional.[16]
Here, on the other hand, there is no total ban on political ads, much less restriction
on the content of the speech. Given the fact that print space and air time can be
controlled or dominated by rich candidates to the disadvantage of poor candidates,
there is a substantial or legitimate governmental interest justifying exercise of the
regulatory power of the COMELEC under Art. IX-C, §4 of the Constitution, which
provides:
The commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible elections.

The provisions in question involve no suppression of political ads. They only prohibit

the sale or donation of print space and air time to candidates but require the COMELEC
instead to procure space and time in the mass media for allocation, free of charge, to
the candidates. In effect, during the election period, the COMELEC takes over the
advertising page of newspapers or the commercial time of radio and TV stations and
allocates these to the candidates.
 Nor can the validity of the COMELEC take-over for such temporary period be
doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it was held that a court order
compelling a private shopping center to permit use of a corner of its courtyard for the
purpose of distributing pamphlets or soliciting signatures for a petition opposing a UN
resolution was valid. The order neither unreasonably impaired the value or use of
private property nor violated the owner’s right not to be compelled to express support
for any viewpoint since it can always disavow any connection with the message.
On the other hand, the validity of regulations of time, place and manner, under
well-defined standards, is well-nigh beyond question.[19] What is involved here is simply
regulation of this nature. Instead of leaving candidates to advertise freely in the mass
media, the law provides for allocation, by the COMELEC, of print space and air time to
give all candidates equal time and space for the purpose of ensuring “free, orderly,
honest, peaceful, and credible elections.”
In Gonzales v. COMELEC,[20] the Court sustained the validity of a provision of R.A. No.
4880 which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. -
— It is unlawful for any person whether or not a voter or candidate, or for any group, or
association of persons, whether or not a political party or political committee, to engage
in an election campaign or partisan political activity except during the period of one
hundred twenty days immediately preceding an election involving a public office voted
for at large and ninety days immediately preceding an election for any other elective
public office.

The term “Candidate” refers to any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate.

The term “Election Campaign” or “Partisan Political Activity” refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a
public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other

groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a
candidate or party; . . .
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the validity of a
COMELEC resolution prohibiting members of citizen groups or associations from
entering any polling place except to vote. Indeed, §261(k) of the Omnibus Election Code
makes it unlawful for anyone to solicit votes in the polling place and within a radius of
30 meters thereof.
These decisions come down to this: the State can prohibit campaigning outside a
certain period as well as campaigning within a certain place. For unlimited expenditure
for political advertising in the mass media skews the political process and subverts
democratic self-government. What is bad is if the law prohibits campaigning by certain
candidates because of the views expressed in the ad. Content regulation cannot be
done in the absence of any compelling reason.

Law Narrowly Drawn to Fit

          Regulatory Purpose

The main purpose of §11(b) is regulatory. Any restriction on speech is only

incidental, and it is no more than is necessary to achieve its purpose of promoting
equality of opportunity in the use of mass media for political advertising. The restriction
on speech, as pointed out in NPC, is limited both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the regulation,
which they call a ban, would be useless any other time than the election period.
Petitioners state: “[I]n testing the reasonableness of a ban on mountain-skiing, one
cannot conclude that it is limited because it is enforced only during the winter
season.”[22] What makes the regulation reasonable is precisely that it applies only to the
election period. Its enforcement outside the period would make it unreasonable. More
importantly, it should be noted that a “ban on mountain skiing” would be passive in
nature. It is like the statutory cap on campaign expenditures, but is so unlike the real
nature of §11(b), as already explained.
Petitioners likewise deny that §11(b) is limited in scope, as they make another
quaint argument:
A candidate may court media to report and comment on his person and his programs,
and media in the exercise of their discretion just might. It does not, however, follow that
a candidate’s freedom of expression is thereby enhanced, or less abridged. If Pedro is
not allowed to speak, but Juan may speak of what Pedro wishes to say, the curtailment
of Pedro’s freedom of expression cannot be said to be any less limited, just because
Juan has the freedom to speak.[23]

The premise of this argument is that §11(b) imposes a ban on media political
advertising. What petitioners seem to miss is that the prohibition against paid or
sponsored political advertising is only half of the regulatory framework, the other half
being the mandate of the COMELEC to procure print space and air time so that these
can be allocated free of charge to the candidates.

Reform of the Marketplace of Ideas,

          Not Permissible?

Petitioners argue that the reasoning of NPC is flawed, because it rests on a

misconception that Art. IX-C, §4 mandates the absolute equality of all candidates
regardless of financial status, when what this provision speaks of is “equality of
opportunity.” In support of this claim, petitioners quote the following from the opinion
of the Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far as practicable, the
situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign “war chests.”[24]

The Court meant equalizing media access, as the following sentences which were
omitted clearly show:
Section 11(b) prohibits the sale or donation of print space and air time “for campaign or
other political purposes” except to the Commission on Elections (“Comelec”). Upon the
other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to
procure “Comelec space” in newspapers of general circulation in every province or city
and “Comelec time” on radio and television stations. Further, the Comelec is statutorily
commanded to allocate “Comelec space” and “Comelec time” on a free of charge, equal
and impartial basis among all candidates within the area served by the newspaper or
radio and television station involved.[25]

On the other hand, the dissent of Justice Romero in the present case, in batting for
an “uninhibited market place of ideas,” quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to “secure the widest possible dissemination of
information from diverse and antagonistic sources” and “to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people.”[26]

But do we really believe in that? That statement was made to justify striking down a
limit on campaign expenditure on the theory that money is speech. Do those who
endorse the view that government may not restrict the speech of some in order to
enhance the relative voice of others also think that the campaign expenditure limitation
found in our election laws[27] is unconstitutional? How about the principle of one person,
one vote,[28] is this not based on the political equality of voters? Voting after all is
speech. We speak of it as the voice of the people - even of God. The notion that the
government may restrict the speech of some in order to enhance the relative voice of
others may be foreign to the American Constitution. It is not to the Philippine
Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political
equality. Art. XIII, §1 requires Congress to give the “highest priority” to the enactment of
measures designed to reduce political inequalities, while Art. II, §26 declares as a
fundamental principle of our government “equal access to opportunities for public
service.” Access to public office will be denied to poor candidates if they cannot even
have access to mass media in order to reach the electorate. What fortress principle
trumps or overrides these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the
Constitution now appear dim to us, how can the electoral reforms adopted by them to
implement the Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92
are part, be considered infringements on freedom of speech? That the framers
contemplated regulation of political propaganda similar to §11(b) is clear from the
following portion of the sponsorship speech of Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or
utilization of franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges or
concessions granted by the Government, there is a provision that during the election
period, the Commission may regulate, among other things, the rates, reasonable free
space, and time allotments for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly, honest and peaceful elections. This
has to do with the media of communication or information.[29]

On the Claim that the Reforms

          Have Been Ineffectual

Petitioners contend that §11(b) is not a reasonable means for achieving the purpose
for which it was enacted. They claim that instead of levelling the playing field as far as
the use of mass media for political campaign is concerned, §11(b) has abolished it. They
further claim that §11(b) does not prevent rich candidates from using their superior
resources to the disadvantage of poor candidates.
All this is of course mere allegation. As stated in the beginning, what petitioners
claim to be the nation’s experience with the law is merely argumentation against its
validity. The claim will not bear analysis, however. Assuming that rich candidates can
spend for parades, rallies, motorcades, airplanes and the like in order to campaign while
poor candidates can only afford political ads, the gap between the two will not
necessarily be reduced by allowing unlimited mass media advertising because rich
candidates can spend for other propaganda in addition to mass media advertising.
Moreover, it is not true that §11(b) has abolished the playing field. What it has done, as
already stated, is merely to regulate its use through COMELEC-sponsored advertising in
place of advertisements paid for by candidates or donated by their supporters.
It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is
claimed that people hardly read or watch or listen to them. Again, this is a factual
assertion without any empirical basis to support it. What is more, it is an assertion
concerning the adequacy or necessity of the law which should be addressed to
Congress. Well-settled is the rule that the choice of remedies for an admitted social
malady requiring government action belongs to Congress. The remedy prescribed by it,
unless clearly shown to be repugnant to fundamental law, must be respected. [30] As
shown in this case, §11(b) of R.A. 6646 is a permissible restriction on the freedom of
speech, of expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most effective means of
reaching voters. He adverts to a manifestation of the COMELEC lawyer that the
Commission “is not procuring [Comelec Space] by virtue of the effects of the decision of
this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA
272.”[31]
To be sure, this Court did not hold in PPI v. COMELEC that it should not procure
newspaper space for allocation to candidates. What it ruled is that the COMELEC cannot
procure print space without paying just compensation. Whether by its manifestation the
COMELEC meant it is not going to buy print space or only that it will not require
newspapers to donate free of charge print space is not clear from the manifestation. It is
to be presumed that the COMELEC, in accordance with its mandate under §11(b)
of R.A. No. 6646 and §90 of the Omnibus Election Code, will procure print space for
allocation to candidates, paying just compensation to newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the faithful
compliance of those charged with its enforcement but by appropriate constitutional
provisions. There is a remedy for such lapse if it should happen. In addition, there is the
COMELEC Time during which candidates may advertise themselves. Resolution No.
2983-A of the COMELEC provides:
SEC. 2. Grant of “Comelec Time.”  — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as “Comelec
Time”, effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until
May 9, 1998. (Emphasis added)

Failure of Legislative Remedy Bespeaks

          of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or even repeal of
§11(b) of R.A. No. 6646. No less than five bills[32] were filed in the Senate in the last
session of Congress for this purpose, but they all failed of passage. Petitioners claim it
was because Congress adjourned without acting on them. But that is just the point.
Congress obviously did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be
valid so that those opposed to the statute resorted to the legislative department. The
latter reconsidered the question but after doing so apparently found no reason for
amending the statute and therefore did not pass any of the bills filed to amend or repeal
the statute. Must this Court now grant what Congress denied to them? The legislative
silence here certainly bespeaks of more than inaction.

Test for Content-Neutral Restrictions[33]

In Adiong v. COMELEC[34] this Court quoted the following from the decision of the
U.S. Supreme Court in a case sustaining a Los Angeles City ordinance which prohibited
the posting of campaign signs on public property:
A government regulation is sufficiently justified if it is within the constitutional power of
the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City
Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35]
 This test was actually formulated in United States v. O’Brien.[36] It is an appropriate
test for restrictions on speech which, like §11(b), are content-neutral. Unlike content-
based restrictions, they are not imposed because of the content of the speech. For this
reason, content-neutral restrictions are tests demanding standards. For example, a rule
such as that involved in Sanidad v. COMELEC,[37] prohibiting columnists, commentators,
and announcers from campaigning either for or against an issue in a plebiscite must
have a compelling reason to support it, or it will not pass muster under strict scrutiny.
These restrictions, it will be seen, are censorial and therefore they bear a heavy
presumption of constitutional invalidity. In addition, they will be tested for possible
overbreadth and vagueness.
It is apparent that these doctrines have no application to content-neutral
regulations which, like §11(b), are not concerned with the content of the speech. These
regulations need only a substantial governmental interest to support them.[38] A
deferential standard of review will suffice to test their validity.
Justice Panganiban’s dissent invokes the clear-and-present-danger test and argues
that “media ads do not partake of the ‘real substantive evil’ that the state has a right to
prevent and that justifies the curtailment of the people’s cardinal right to choose their
means of expression and of access to information.” The clear-and-present-danger test is
not, however, a sovereign remedy for all free speech problems. As has been pointed out
by a thoughtful student of constitutional law, it was originally formulated for the
criminal law and only later appropriated for free speech cases. For the criminal law is
necessarily concerned with the line at which innocent preparation ends and a guilty
conspiracy or attempt begins.[39] Clearly, it is inappropriate as a test for determining the
constitutional validity of laws which, like §11(b) of R.A. No. 6646, are not concerned
with the content of political ads but only with their incidents. To apply the clear-and-
present-danger test to such regulatory measures would be like using a sledgehammer to
drive a nail when a regular hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of speech
is that content-based restrictions distort public debate, have improper motivation, and
are usually imposed because of fear of how people will react to a particular
speech. No such reasons underlie content-neutral regulations, like regulations of time,
place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly
Act of 1985. Applying the O’Brien  test in this case, we find that §11(b) of R.A. No. 6646
is a valid exercise of the power of the State to regulate media of communication or
information for the purpose of ensuring equal opportunity, time and space for political
campaigns; that the regulation is unrelated to the suppression of speech; that any
restriction on freedom of expression is only incidental and no more than is necessary to
achieve the purpose of promoting equality.
________________
The Court is just as profoundly aware as anyone else that discussion of public issues
and debate on the qualifications of candidates in an election are essential to the proper
functioning of the government established by our Constitution. But it is precisely with
this awareness that we think democratic efforts at reform should be seen for what they
are: genuine efforts to enhance the political process rather than infringements on
freedom of expression. The statutory provision involved in this case is part of the reform
measures adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed
bills which were consolidated into what is now R.A No. 6646 with near unanimity. The
House of Representatives, of which petitioner Pablo P. Garcia was a distinguished
member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-
0. [40]
In his recent book, The Irony of Free Speech, Owen Fiss speaks of “a truth that is full
of irony and contradiction: that the state can be both an enemy and a friend of speech;
that it can do terrible things to undermine democracy but some wonderful things to
enhance it as well.”[41] We hold R.A. No. 6646, §11(b) to be such a democracy-enhancing
measure. For Holmes’s marketplace of ideas can prove to be nothing but a romantic
illusion if the electoral process is badly skewed, if not corrupted, by the unbridled use of
money for campaign propaganda.
The petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan, and  Martinez, JJ., concur.
Romero and  Panganiban, JJ., see  dissenting opinion.
Melo, J., join separate opinion of Justice Puno and Justice Vitug.
Puno,  and Vitug, JJ.,  has separate opinion.
Quisumbing and  Purisima, JJ., join  dissenting opinion of Justice Romero and Justice
Panganiban.

[1]
 As petitioners filed their petition before they filed certificates of candidacy, they
assert an interest in this suit “as taxpayers and registered voters” and “as prospective
candidates.” Rollo, p. 6.
[2]
 207 SCRA 1 (1992).
[3]
 Rollo, p. 3.
[4]
 Art. 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.

A related provision states:

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 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.
[5]
 Rollo, p. 17.
[6]
 Memorandum for Petitioners, p. 21.
[7]
 Thus, this Court held in NPC v. COMELEC:
My learned brother in the Court Cruz, J. remonstrates, however, that “[t]he financial
disparity among the candidates is a fact of life that cannot be corrected by legislation
except only by the limitation of their respective expenses to a common maximum. The
flaw in the prohibition under challenge is that while the rich candidate is barred from
buying mass media coverage, it nevertheless allows him to spend his funds on other
campaign activities also  inaccessible to his straitened rival.” True enough Section 11(b)
does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se  without
regard to their financial affluence or lack thereof. But a regulatory measure that is less
than perfectly comprehensive or which does to completely obliterate the evil sought to
be remedied, is not for that reason alone constitutionally infirm. The Constitution does
not, as it cannot, exact perfection in government regulation. All it requires, in accepted
doctrine, is that the regulatory measure under challenge bear a reasonable nexus with
the constitutionally sanctioned objective. That the supervision or regulation of
communication and information media is not, in itself, a forbidden modality is made
clear by the Constitution itself in Article IX(C)(4). 207 SCRA at 14.
[8]
 Answer-in-Intervention, p. 2.
[9]
 Philippine Trust Co. v. Mitchell, 50 Phil. 30 (1927); Kilosbayan v. Morato, 246 SCRA 540
(1995).
[10]
 207 SCRA 1, 13-14 (1992).
[11]
 35 SCRA 285 (1970).
[12]
 207 SCRA 712 (1992).
[13]
  Id. at 720.
[14]
  Id. at 722.
[15]
 36 SCRA 228 (1970).
[16]
 Sanidad v. COMELEC, 181 SCRA 529 (1990).
[17]
 In Philippine Press Institute v. COMELEC, 244 SCRA 272 (1995), we held that for space
acquired in newspapers the COMELEC must pay just compensation. Whether there is a
similar duty to compensate for acquiring air time from broadcast media is the question
raised in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC,  G.R. No. 132922, now pending before this Court.
[18]
 447 U.S. 74, 64 L.Ed2d 741 (1980).
[19]
  See, e.g., J. B. L. Reyes v. Bagatsing, 125 SCRA 553 (1983);
Navarro v. Villegas, 31 SCRA 730 (1970); Ignacio v. Ela, 99 Phil. 346 (1956);
Primicias v. Fugoso, 80 Phil. 71 (1948).
[20]
 27 SCRA 835 (1969).
[21]
 Res., G.R. No. 73551, Feb. 11, 1988.
[22]
 Memorandum for Petitioners, p. 10.
[23]
  Id., p. 11.
[24]
 207 SCRA at 7 (emphasis by petitioners).
[25]
  Ibid.
[26]
 424 U.S. 1, 48-49, 46 L.Ed. 659, 704-705 (1976). The Solicitor General also quotes this
statement and says it is “highly persuasive in this jurisdiction.” Memorandum of the
OSG, p. 27.
[27]
 R.A. No. 7166, §13; OEC, §100.
[28]
  See Macias v. COMELEC, 113 Phil. 1 (1961).
[29]
 1 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION 624, Session of July 16,
1986.
[30]
 Gonzales v. COMELEC, 27 SCRA 835 (1969).
[
31] Compliance, p. 4.
[32]
 The bills are S. Nos. 178, 595, 856, 1177 and 1224, which were consolidated into
S. No. 2104.
[33]
 For helpful discussion of the distinction between content-based and content-neutral
regulations, see generally GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R. SUNSTEIN,
AND MARK V. TUSHNET, CONSTITUTIONAL LAW 1086-1087, 1172-1183, 1323-1334
(1996); GERALD GUNTHER AND KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 1203-
1212 (1997); Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of Chi. Law Rev.
46 (1987).
[34]
 207 SCRA 712 (1992).
[35]
  Id. at 718 (internal quotations omitted).
[36]
 391 U.S. 367, 20 L.Ed.2d 672 (1968).
[37]
 181 SCRA 529 (1990).
[38]
  See, e.g., Primicias v. Fugoso, 80 Phil. 71 (1948).
[39]
 PAUL A. FREUND, ON UNDERSTANDING THE SUPREME COURT 25-26 (1949).
[40]
 4 RECORD OF THE HOUSE OF REPRESENTATIVES 261 (Dec. 14, 1987); 1 RECORD OF
THE SENATE 1644 (Oct. 19, 1987) .
[41]
 THE IRONY OF FREE SPEECH 83 (1996).
 DISSENTING OPINION

PANGANIBAN, J.:

The Court, by majority vote, decided to uphold the ban on political advertising, as
provided under Section 11(b)[1] of RA 6646, and to reiterate the 1992 ruling in National
Press Club vs. Comelec[2] for two main reasons:
1.     To equalize "as far as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the prohibition is to equalize the "political
playing field" for rich and poor candidates.

2.     While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and
of access to mass media of the candidate themselves," the Court justifies the ad ban by
alleging that: (a) it is limited, first, in its "duration," (i.e. the ban applies only during the
"election period") and, second, in its "scope" (i.e. the prohibition on the sale and the
donation of print space and air time covers only those for "campaign and other political
purposes" and does not restrict the legitimate reporting of news and opinions by media
practitioners who are not candidates); and (b) the Comelec is authorized to procure, by
purchase or donation, media time and space which are to be fairly, freely and equally
distributed among the candidates. Otherwise stated, the grant of Comelec time and
space, free of charge, to said candidate makes up for admitted infringement of the
constitutional right to free speech and access to mass media during the campaign
period.

With all due respect, I disagree with the majority's view and join the stirring Dissenting
Opinions of Justice Hugo E. Gutierrez, Jr.,[3] Isagani A. Cruz[4] and Edgardo L.
Paras[5] in NPC vs. Comelec, and of Justice Flerida Ruth Romero in the present case. I
will no longer repeat their cogent legal arguments. Let me just add my own.

1.                      Ad Ban Not Pro-Poor

But Anti-Poor

The majority argues that the ad ban is pro-poor, because it prevents the rich from
buying media time and space which the poor cannot afford or match. This argument
assumes that media advertising is expensive and, thus, beyond the reach of the poor.
I respectfully submit that such argument is bereft of factual basis. True, a full-page
ad in a major broadsheet[6] may be priced at about P100,000, a 30-second commercial in
a major television,[7]7 anywhere from P15,000 to P90,000 depending on the time and
the program; while airtime of an equal duration in a radio station, anywhere from P300
to P4,500.[8]8 But even with such price tags, media ads are not necessarily expensive,
considering their nationwide reach, audience penetration, effectiveness and persuasive
value.
Realistically, expenses are involved in a candidacy for a national office like the
presidency, the vice-presidency, and the senate. In recognition of this, the law has
limited campaign expenditures to ten pesos (P10) for every voter in the case of
candidates for president and vice-president, and three pesos (P3) per voter in their
constituencies, for other candidates.[9]`Sec. 100 Limitations upon expenses of
candidates.- Authorized Expenses of Candidates and Political Parties. - The aggregate
amount that a candidate or registered political party may spend for election campaign
shall be as follows:

(a) For candidates - Ten pesos (P10.00) for President and Vice-President and for other
candidates. Three pesos (P3.00) for every voter currently registered in the constituency
where he filed his certificate of candidacy. Provided, That a candidate without any
political party may be allowed to spend Five pesos (P5.00) for every such voter, and

(b) For political parties - Five pesos (P5.00) for every voter currently registered in the
constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in

kind to any candidate or political party or coalition of parties for campaign purposes,
duly reported to the Commission, shall not be subject to the payment of any gift tax."9
Anyone - whether rich or poor - who aspires for such national elective office must
expect to spend a considerable sum, whether of his own or from allowable donations, to
make himself and his platform or program of government known to the voting public.

Media Ads

Comparatively Cheaper

While a one-page black-and-white ad in a major daily costs about P100,000, it is

replicated, however, in about 250,000 copies[10]10 circulated to an equal number of
offices and households nationwide on the very same day of its publication. Each
newspaper copy has an average readership of six. Hence, the ad is exposed to about 1.5
million (250,000 x 6) people all over the country. Consider, too, the people discuss what
they read while they congregate in barber shops, corner stores, and other places where
people gather. Sometimes, radio and tv broadcasters pick up and comment on what
they read on newspapers. So, the reach, pass-on readership, multiplier effect and
effectivity of a broadsheet ad are practically immeasurable.
On the other hand, let us consider the alternative of printing and distributing a
poster or handbill of similar size. The actual printing cost of such handbill on newsprint
is twenty centavos (P.20) per copy.[11]11 The cost of 250,000 copies (the circulation of a
major daily) would thus be P50,000 (250,000 x P.20). But that is only the printing cost.
To disseminate these handbills nationwide on the same day of printing without the
distribution network of a major newspaper is almost impossible. Besides, the cost would
be horrendous. To approximate the circulation of a major newspaper is almost
impossible. Besides, the cost would be horrendous. To approximate the circulation of a
major newspaper, the most practical substitute would be the mails. Ordinary mail is
now P4.00 per posting. Hence, the distribution cost through the mails would be P1
million (250,000 x P4.00). And this does not include the manual work and cost of sorting,
folding and individually addressing these 250,000 pieces of mail matter. (This alternative
assumes the availability of a mailing list equivalent to the reach of a newspaper.) Even if
third-class mail is used, the distribution cost alone will still be P3.00 per individual
mailing, or P750,000 for all 250,000 copies.[12]12
This alternative is not only much more expensive but much less effective as well,
because it has no guarantee of same-day delivery, has a diminished readership
multiplier effect and is tremendously cumbersome in terms of sorting and distribution.
Furthermore, a candidate need not buy one-page ads. He can use quarter page ads
at one fourth the cost or about P25,000 only per issue. To be effective in his ad
campaign, he may need to come out once every three days (to be spread out among the
different dailies) or 30 times during the 90-day campaign period[13]13 for national
candidates. Hence, he will spend, for the entire duration of the campaign,
about P750,000 (P250,000 x 30). I repeat, to advertise a one-fourth page ad at least 30
times in various major dailies, a candidate needs to spend only P750,000 - an amount
less than the alternative of printing and distributing nationwide ONLY ONCE a less timely
and less effective equivalent leaflet or poster.
A similar detailed comparison of cost-benefit could be written for radio and
television. While, at the initial glance, the rates for these electronic media may appear
high, still they could be proven more beneficial and cheaper in the long term because of
their "value-for-money" appeal.[14]vs. Dans Jr., 137 SCRA 628, 635-636, July 19, 1985,
through Justice Hugo E. Gutierrez Jr., described the pervasive effect of broadcast media
in the wise:
"The broadcast media have also established a uniquely pervasive presence in the lives of
all Filipinos. Newspaper and current books are found only in metropolitan areas and in
the pablaciones of municipalities accessible to fast and regular transportation. Even
here there are low income masses who find the cost of books, newspaper, 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 the 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. x x x"14

Candidates Should Not Be Denied

Option to Use Media Ads.

 From the foregoing, it is clear that mass media truly offers an economical, practical,
and effective means by which a relatively unknown but well-qualified political candidate
who has limited resources, particularly one running for a national office, may make
known to the general public during the short campaign period[15]15 his qualifications,
platform of government, stand on vital issues, as well as his responses to questions or
doubts about his capabilities, his character or any other matter raised against him.
Deprived of media ads, the rich candidate, unlike his poor opponent, resorts to
expensive propaganda - the holding of public meetings and rallies before large but
oftentimes "paid" crowds, helicopter stops and motorcades spanning several towns and
cities, the production of ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign paraphernalia. These forms of
electoral promotion ineluctably require a large political machinery and gargantuan
funds (organization + people / supporters + communication gadgets + vehicles +
logistics). To combat this formidable and expensive election behemoth, the poor
candidate's most viable alternative may be media advertising.
In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and
radio and television time x x x by the financially affluent [was] likely to make a crucial
difference." But I say such fear is unfounded. First, because campaign expenses are
limited by law, Second, the possibility of the abuse and misuse of media ads by the
"financially affluent" is not an argument in favor of their total withdrawal, for - to use
the very words of the majority in NPC - "there is no power or authority in human society
that is not susceptible of being abused."[16] Third, the absence of access to media
advertising totally deprives the poor candidate of his most formidable weapon in
combating the "huge campaign war chests" of rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE
BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR FOR THAT MATTER, THEY MAY
ABUSE OR MISUSE IT. Quite the contrary, in terms of reach, pass-on readership,
multiplier effect and cost-benefit advantage, media advertising may be the cheapest
and most effective campaign mechanism available. I am not suggesting that every
candidate shuld use media ads. In the final analysis, it is really up to the candidates and
their campaign handlers to adopt such mode and means of campaigning as their
budgets and political strategies may require 16a16a What I am stressing is that the
candidates, whether rich or poor, should be given the option of campaigning through
media, instead of being forced to use other forms of propaganda that could turn out to
be less effective and more expensive.

2.                      Ad Ban Not Limited;

Comelec Time and Space Inutile

I now come to the second major point. The majority rationalizes the ad ban by
saying that it has a very limited duration and scope and that, in any event, the Comelec's
grant of free media time and space to candidates more than makes up for the violation
of their constitutional right. I disagree.

Ad Ban Not

Limited in Duration
 The ad ban is constitutional because, according to the majority, it is limited in
duration for the reason that it is enforced only during the election period. In my humble
view and with all due respect, this is both erroneous and illogical. A political
advertisement is relevant only during the campaign period - not before and not after. As
petitioners put it, a ban on mountain-skiing during the winter season cannot be said to
be limited in duration, just because it is enforced during winter. After all, skiing is
indulged in only when the mountain slopes are covered with snow. To add a further
parallel, a ban against the planting of rice during the rainy season is not limited simply
because it covers only that season. After all, nobody plants rice during summer when
the soil is parched. In the same manner, campaign ads are not resorted to except during
the campaign period. And their prohibition does not become any less odious and less
comprehensive just because the proscription applies only during the election season.
Obviously, candidates need to advertise their qualifications and platforms only during
such period. Properly understood, therefore, the prohibition is not limited in duration
but is in fact and in truth total, complete and exhaustive.

Ad Ban Neither

Limited in Scope

The majority also claims that the prohibition is reasonable because it is limited in
scope; that is, it refers only to the purchase, sale or donation of print space and air time
for "campaign or other political purposes" and does not restrict news reporting and
commentaries by editors, columnists, reporters, and broadcasters. But the issue here is
not the freedom of media professionals.[17] The issue is the freedom of expression
of candidates. That the freedom of the press is respected by the law and by the Comelec
is not a reason to trample upon the candidates' constitutional right to free speech and
the people's right to information. In this light, the majority's contention is a clear case
of non sequitor. Media ads do not partake of the "real substantive evil" that the state
has a right to prevent[18] and that justifies the curtailment of the people's cardinal right
to choose their means of expression and of access to information.
Besides, what constitutes "campaign or other political purposes"? Neither RA 6646
nor the majority provides an explanation. If candidates buy 30 column-inches of
newspaper space or one hour of prime radio/tv time everyday, and if they retain
professional journalists to use such space/time to defend them from attacks and to
promote their platforms of government, should such purchase be covered by the ad
ban, or should it be allowed as an exercise of the freedom of journalist to express their
views? Even more insidiously, should regular columnists' daily defense of their chosen
candidates and daily promotion of their platforms of government constitute donated
space for "campaign and other political purposes"?[19]

Ad Ban Not Compensated for or

Justified by Free "Comelec Time"

Finally, the majority opines that the grant of free Comelec media time and space to
candidates more than makes up for the abridgment of the latter's right to buy political
ads.[20]:
 "Plebiscite issues are matters of public concern and importance. The people's right
to be informed and to be able to freely and intelligently make a decision would be
better served by access to an unabridged discussion of the issues, including the forum.
The people affected by the issues presented in a plebiscite should not be unduly
burdened by restrictions on the forum where the right to expression may be exercised.
Comelec spaces and Comelec radio time may provude a forum for expression but they
do not guarantee full dissemination of information to the public concerned because
they are limited to either specific portions in newspaper or to specific radio or television
times" (Empahasis ours.)20 With due respect, I believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tells us that under its
Resolution No. 3015, it gave due course to eleven candidates for president [21] nine for
vice president,[22] and forty for senators.[23] It is claimed however that, all in all, there are
really about 100,000 candidates running for about 17,000 national and local positions in
the coming elections, from whom a voter is expected to choose at least 30 [24] to vote for.
With so many candidates, how can the ordinary, sometimes nonchalant, voter ever get
to know each of the political hopefuls from whom he will make an intelligent selection?
In the crucial choice of president alone, how can ordinary citizens intelligently and
sufficiently assess each of the 11 candidates in order to make a sensible choice for a
leader upon whom to entrust the momentous responsibility of carving the country's
path in the next millenium?
The Comelec answers these questions with Resolution No. 2983-A, promulgated
on March 3, 1998, in which it asks "every radio broadcasting and television station
operating under franchise [to] grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as 'Comelec
Time' effective February 10, 1998 for candidates for President, Vice President and
Senators, and effective March 27, 1998 for candidates for local elective offices, until
May 9, 1998," to be allocated "by lottery" among candidates requesting its use. But
Comelec, in the same Compliance, informed the Court that "it is not procuring 'Comelec
Space' (in any newspaper) by virtue of the effects of the decision of this Honorable
Court in the case of Philippines Press Institute (PPI) vs. Comelec, 224 SCRA 272."[25]25
In sum, the Comelec intends to secure 30 minutes of "Comelec time" for every radio
and broadcasting station to be allocated equally to all candidates. The Comelec does not
state exactly how it intends to allocate - except "by lottery" - these 30 minutes per
station to the 17,000 candidates, considering that these stations do not have the same
reach, audience and penetration. The poll body does not say exactly how many stations
are involved, what budget allocation, if any, it has for the purpose,[26]26 when each
candidate will be allowed to speak and for how long, how the Comelec intends to cover
the 77 provinces, 68 cities and 42,000 barangay nationwide, and many other details.
Moreover, while the Comelec smugly speaks of free Comelec time being effective on
"February 10, 1998" for national candidates, Resolution 2983-A itself was promulgated
only on March 3, 1998.
Up to this writing, I have yet to hear of any major candidate using this so-called free
Comelec broadcast time. In fact, during the oral argument of this case on March 5, 1998,
Comelec Chairman Bernardo P. Pardo frankly admitted that no candidate had applied
for an allocation of Comelec time. Not even petitioners. This is the best testament to the
utter inutility and ineffectivity of Comelec time. Indeed, it cannot be a substitute, much
less a viable alternative, to freely chosen but paid for media ads. It cannot compensate
for the violation of the candidates' right to free speech and media access, or for the
electorate's right to information.
If the real objective is to level the playing field for rich and poor candidates, there
must be, as there already are, a cap on election expenses and a shortening of the
campaign period. The incapability of the Comelec to effectively monitor and strictly
implement such expense and time limitations should not take its toll upon
constitutionally enshrined liberties of the people, including the candidates. To prohibit
access to mass media, except only through Comelec time -- which has been indubitably
shown to be sorely insubstantial, insignificant and inutile -- is not, and is far from being,
a solution to the problems faced by poor candidates. The simple remedy is to lift the
media ban.

Epilogue

The ad ban is a blatant violation of the candidates' constitutional right to free

speech[27] and the people's right to information.[28] Being the last refuge of the people
and the guardian of the Constitution, this Court should then, with alacrity, view the ban
with suspicion, if not with outright rejection.[29] To repeat, the alleged limitations are in
reality nonexisten;t and the "pro-poor" justification, without logic.
To say that the prohibition levels the playing field for the rich and the poor is to
indulge in a theoretical assumption totally devoid of factual basis. On the contrary,
media advertising may be -- depending on a contender's propaganda strategy -- the
cheapest, most practical and most effective campaign medium, especially for national
candidates. By completely denying this medium to both the rich and the poor, this Court
has not leveled the playing field. It has effectively abolished it! Far from equalizing
campaign opportunities, the ban on media advertising actually favors the rich (and the
popular) who can afford the more expensive and burdensome forms of propaganda,
against the poor (and the unknown) who cannot.
The allegation that the prohibition is reasonable because it is limited in duration and
scope is itself most unreasonable, bereft as it is of logic and basis. Even more shallow is
the argument that the Comelec-given media time and space compensate for such
abridgment. In fact, the Comelec is not even procuring any newspaper space. In any
event, the fact that not even the poorest candidates have applied for available
opportunities is the best testament to its dubiousness. That petitioners who are
seasoned political leaders prefer to pay for their own media ads rather than to avail
themselves of the Comelec freebies refutes the majority's thesis of
compensation. Indeed, the free things in life are not always the best. [30]  They may just be
bureaucratic waste of resources.
Before I close, a word about stare decisis. In the present case, the Court is
maintaining the ad ban to be consistent with its previous holding in NPC vs. Comelec.
Thus, respondent urges reverence for the stability of judicial doctrines. I submit,
however, the more important than consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean Roscoe Pound explains, "Law must be stable but
it cannot stand still." Verily, it must correct itself and move in cadence with the march of
the electronic age. Error and illogic should not be perpetuated. After all, the Supreme
Court, in many cases,[31] has deviated from stare decisis and reversed previous
doctrines and decisions. It should do no less in the present case.
Elections can be free, honest and credible not only because of the absence of the
three execrable "G's" or "guns, goons, and gold." Beyond this, the integrity and
effectivity of electoral democracy depend upon the availability of information and
education touching on the three good "P's" - principles, platforms and program of the
candidates. Indeed, an intelligent vote presupposes a well-informed voter. If elections
must be rid of patronage, personalities and popularity as the main criteria of the
people's choice, we must allow candidates every opportunity to educate the voters. And
corollarily, the people must be accorded every access to such information without much
effort and expense on their part.
With all due respect, I submit that the ad ban is regressive, repressive and
deceptive. It has no place in our constitutional democracy.
WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA
6646 as UNCONSTITUTIONAL and VOID.

[1] "Sec. 11. Prohibited Forms of Election Propaganda - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa

Blg. 881, it shall be unlawful:

          x x x    x x x     x x x

          b) for any newspaper, radio broadcasting or television station, other mass media
or any person making use of the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer who is a candidate for any elective public office shall take a
leave of absence from his work as such during the campaign period."
[2]
 207 SCRA 1, March 5, 1992, per Feliciano, J.
[3]
 Ibid., pp. 28-30. The following are excerpts:

          "Sec. 11(b) of R.A. No. 6646 will certainly achieve one result - keep the voters
ignorant of who the candidates are and what they stand for."

          "The implementation of Section 11(b) will result in gross inequality. A cabinet

member, an incumbent official, a movie star, a basketball player, or a conspicuous clown
enjoys an affair advantage over a candidate many times better qualified but less
known."

          "x x x We owe it to the masses to open all forms of communication to them during
this limited campaign period. A candidate to whom columnists and radio-television
commentators owe past favors or who share their personal biases and convictions will
get an undue amount of publicity. Those who incur the ire of opinion makers cannot
counteract negative reporting by buying his own newspapers space or airtime for the
airing of his refutations."

          "Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly

reprehensible because it is imposed during the limited period of the election campaign
when information is most needed. x x x"
[4]
 Ibid.,  pp. 31-43.

I quote significant, enlightening portions as follows:

          "The citizen can articulate his views, for whatever they may be through the many
methods by which ideas are communicated from mind to mind. Thus, he may speak or
write or sing or dance, for all these are forms of expression protected by the
Constitution. So is silence, which 'persuades when speaking fails.'

x x x The individual can convey his message in a poem or a novel or a tract or in a public
speech or through a moving picture or a stage play. In such diverse ways may he be
heard. There is no of course no guaranty that he will be heeded, for acceptability will
depend on the quality of his thoughts and of his person, as well as the mood motivation
of his audience. But whatever form he employs, he is entitled to the protection of the
Constitution against any attempt to muzzle his thoughts."

          It is for the purpose of properly informing the electorate of the credentials and
platforms of the candidates that they are allowed to campaign during the election
period. x x x

          It is curious, however, that such allowable campaign activities do not include the
use of the mass media because of the prohibition is Section 11(b) of Rep. Act No. 6646 x
x x"

          "The lawful objective of Section 11(b) may be readily conceded. The announced
purpose of the law is to prevent disparity between the rich and the poor candidates by
denying both of them access to the mass media and thus preventing the former from
enjoying and undue advantage over the latter. There is no question that this is a laudible
goal. Equality among the candidates in this regard should be assiduously pursued by the
government if the aspirant with limited resources is to have any chance at all against an
opulent opponent who will not hesitate to use his wealth to make up for his lack of
competence.

          To pursue a lawful objective, only a lawful method may be employed even if it may
not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link
between the means employed and the purpose sought to be achieved has not been
proved and that the method employed is unduly oppressive."

          "But the most important objection to Section11(b) is that it constitutes prior

restraint on the dissemination of ideas. In a word, it is censorship . It is that officious
functionary of the repressive government who tells he citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to sy on pain of
punishment should he be so rash to disobey."

          "I remind the Court of doctrine announced in Bantam Books v. Sullivan tha tany
sustem of prior restraint of expression comes to this Court bearing a heavy presumption
against its validity. That presumption has not been refuted in the cases subjudice. On
the contrary, the challenged provision appears quite clearly to be invalid on the face
because of its undisguised attempt at censorship. The feeble effort to justify it in the
name of social justice and clean elections cannot prevail over the self-evident fact that
what we have here is an illegal intent to suppress free speech by denying access to the
mass media as the most convinient instruments of the molding of public opinion. And it
does not matter that the use of these facilities my involve financial transactions, for the
element of hte commercial does not remove them from the protection of the
Constitution."

          "I submit thatall the channels of communication should be kept open to insure the
widest dissemination of information learning on the forthcoming election. An
uninformed electorate is not likely to circumspect in the choice of official who will
represent them in councils of government. That they may exercise their suffrage wisely,
it is important thay be apprised of the election issues, including the credentials, if any, of
the various aspirants for public office. This is especially necessary now in view of the
dismaying number of mediocirties who by an incredible aberration of ego, are relying on
their money, or their tinsel popularity, or their private armies, to give them the plum of
victory.

          For violating the liberty to know, to utter and to argue freely according to
conscience, above all liberties, the challenged law must be struck down. For blandly
sustaining it instead, the majority has inflicted a deep cut on the Constitution that will
ruthlessly bleed it white, and with it this most cherished of our freedoms."
[5]
 Ibid.,  pp. 43-44, where he said in this part:

          "The freedom to advertise one's political candidacy in the various forms of media
is clearly a significant part of our freedom of expression and of our right of access to
information. Freedom of expression in turn includes among other things, freedom of
speech and freedom of the press. Restrict these freedoms without rhyme or reason, and
you violate the most valuable feature of the democratic way of life.

          The majority says that the purpose of the political advertisement provision is to
prevent those who have much money from completely overwhelming those who have
little. This is gross error because should the campaign for votes be carried out in other
fora (for example, rallies and meetings) the rich candidate can always be at a great
advantage over his less fortunate opponent. And so the disparity feared will likewise
appeared in campaigns other than through media. x x x"
[6] Like the Philippine Daily Inquirer, the Manila Bulletin and the Philippine Star.

[7]
 Like ABS-CBN Channel 2 or GMA Channel 7
[8]
 Petition in Intervention, p. 28.
[9]
 Sec. 100. BP Blg. 881, as amended by Sec. 13, RA 7166, which provides:
[10]
 This is the claimed circulation of the three major broadsheets - Philippine Daily
Inquirer, Manila Bulletin and Philippine Star.
[11]
 This is the present cost actually paid by a major broadsheet for every page of
printing, including the paper and the ink used. Commercial printing presses actually
charge 3 to 4 times this amount for posters smaller than a one-page newspaper ad.
[12]
 The cost is P3 for the first 50 grams in bulk mailing, a method which would entail add-
on for the materials to reach the individual voters. Hence, to factor out these add-on
costs while approximating the reach of a newspaper, the cost of mailing by piece was
computed instead.
[13]
 Sec. 3 BP. Blg. 881, as amended by Sec. 5, RA 7166.
[14]
 The Court, in Eastern Broadcasting Corp.
[15]
 90 days for candidates for president, vice president and senator, and 45 days for the
other elective positions (Sec. 3, BP Blg. 881, as amended by Sec. 5, RA 7166).
[16]
 In national Press Club, supra, at pp. 12-13, the Court gives this argument:
"It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral
Commission [63 phil 139, 177 (1936)] that the possibility of abuse is no argument
against the concession of the power or authority involved, for there is no power or
authority in human society that is not susceptible of being abused."
16a
 In his column in the Manila Standard on March 30, 1998 entitled "A survey about
political ads," Mahar Mangahas, president of the Social Weather Stations, explains why
"it pays to advertise" political candidates, "judging from the results of the Social
Weather Stations survey of Feb. 21-27, 1998." Interestingly, the SWS survey showed
that the 1998 political ads best recalled by the public were those of the two leading
candidates -- Joseph Estrada (55%) and Alfredo Lim (54%) - followed by Jose de Venecia
(37%), Lito Osmeña (35%), Renato de Villa (19%), Raul Roco (11%), Miriam Defensor
Santiago (9%), Imelda Marcos (3%), and Juan Ponce Enrile (2%). Interestingly also, the
topnotchers in the ad survey cannot be termed "rich" nor the bottom dwellers, "poor,"
thereby reinforcing my thesis that the effectiveness of political ads is not dependent on
financial fortunes. Rather, political ads are complementary to the overall political
strategy of each candidate.
[17]
 This specific issue has been resolved in Standard v. Comelec, 181 SCRA 529, January
29, 1998, per medialdea, J., whre the Court ruled:
"However, neither Article IX-C of the Constitution [Comelec's power to supervise and
regulate the operation of public utilities and the mass media during the election period]
nor Sec. 11 (b) 2nd par of RA 6646 can be construed to mean that the Comelec has also
been granted the right to supervise and regulate the exercise by media practitioners
themselves of their right to expression during the plebiscite periods. Media practitioners
are neither the franchise holders nor the candidates. x x x Therefore Section 19 of
Comelec Resolution No. 2167 [prohibiting columnists, commentators or announcers to
use their column, radio or TV time ti campaign for or against plebiscite issues]
has no statutory basis.

          x x x    x x x    x x x

Anent respondent Comelec's argument that Section 19 of Comelec Resolution No. 2167

does not absolutely bar petitioner-columnist from expressing his views and/or from
campaigning for or against the organic act because he may do so through the Comelec
space and/or Comelec radio/television time, the same is not meritorious. While the
limitation does not absolutely bar petitioner's freedom of expression, it is a restriction
on his choice of the forum where he may express his views. No reason was advanced by
respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable
reason." [Italics in the original]
[18]
 Using the "clear and present danger test" as enunciated in Gonzales vs. Comelec, 27
SCRA 835, 877, April 18, 1969, per Fernando, J., citing Schenk v. United States, 249 US
47, 52, 63 L. ed. 470, 473-474 (1919); Whitney v. California, 247 US 357, 373, 71 L. ed.
192, 202-203 (1927); Dennis v. United States, 341 US 494, 510, 95 L. ed. 1137, 1153
(1950); and several oter cases. See also Primicias vs. Fugoso, 80 Phil 71, 87-88, Jnauary
27, 1948, per Feria, J., Adiong vs. Comelec, 207 SCRA 712, 715, March 31, 1992, per
Gutierrez Jr., J., Eastern Broadcasting Corp. vs.  Dans Jr., supra.
[19]
 "PPI appeals to media companies not to sell space, air time to pols," Philippine Daily
Inquirer, March 5, 1998. The following are excerpts:

"The appeal was made as the PPI expressed `grave concern and alarm over the
overnight proliferation of `fly-by-night' newspaper who take advantage of the political
campaign season for racketeering

"The institute is dismayed by the reported abdication by a number of media owners and
editors of their journalistic responsibilities by selling their editorial pages and air time to
political canfifates, PPI executive director Ermin Garcia said in a statement"

See also " Ad ban worsens corruption in media, "Philippine Daily

Inquirer, March 31, 1998, which reads in part:

"A Media officer of a candidate revealed that in one national daily, the going price for a
page one photo is P5,000. The reporter who acts as broker gets P1,000, the editor who
puts it out gets P4,000. That s cheaper than the price of an equivalent column space for
advertisement in the inside pages.
A presidential candidate's photo on the front page fetches P15,000, while for a
senatorial candidate it is P10,000.

A banner story costs P25,000. A front page above the fold costs P20,000. A small press
release costs P5,000."
[20]
 In contrast, this was what the Court said in unanimity in Standard, supra
[21]
"1. Jose C. De Venecia, Jr.      -- LAKAS-NUCD UDMP

2. Renato S. De Villa                 -- Partido para sa Demokratikong

                                         Reporma/Lapiang Manggagawa

                                         Coalition

3. Santiago F. Dumlao, Jr.                     -- Kilusan para sa Pambansang

                                         Pagpapanibago

4. Juan Ponce Enrile                 -- Independent (LP)

5. Joseph E. Estrada                -- Partido ng Masang Pilipino -

                                         LAMMP

6. Alfredo S. Lim                     -- Liberal Party

7. Imelda R. Marcos                  -- Kilusan Bagong Lipunan

8. Manuel L. Morato                  -- Partido Bansang Marangal

9. Emilio R. Osmeña                  -- Progressive Movement for

                                         Devolution of Initiative Political

                                         Party of Central Visayas

10. Raul S> Roco                               -- Aksyon Demokratiko

11. Miriam Defensor Santiago      -- People's Reform Party"21

[22]
22"1. Edgardo J. Angara                    -- LDP/LAMMP Coalition

2. Gloria Macapagal-Arroyo        -- LAKAS-NUCD UMDP

3. Oscar M. Orbos                   -- PDR-LM

4. Sergio Osmeña III                 -- Liberal Party

5. Reynaldo R. Pacheco            -- KPP

6. Camilo L. Sabio                    -- Partido Bansang

                                         Marangal
7. Irene M. Santiago                 -- Aksyon Demokratiko

8. Ismael D. Sueño                   -- PROMDI

9. Francisco S. Tatad               -- People's Reform Party

[23]
"1. Lisandro C. Abadia            -- LAKAS-NUCD UMDP

2. Rolando R. Andaya               -- LAKAS-NUCD UMDP

3. Teresa Aquino-Oreta             -- LDP/LAMMP Coalition

4. Luduvico D. Badoy               -- KPP

5. Ramon S. Bagatsing, Jr.                    -- LDP/LAMMP Coalotion

6. Robert Z. Barbers                 -- LAKAS-NUCD UMDP

7. Rodolfo G. Biazon                -- LDP/LAMMP Coalition

8. Eduardo D. Bondoc               -- KPP

9. David M. Castro                   -- KPP

10. Renato L. Cayetano             -- LAKAS-NUCD UMDP

11. Raul A. Daza                               -- LIBERAL PARTY

12. Roberto F. De Ocampo                    -- LAKAS-NUCD UMDP

13. Renato B. Garcia                -- KPP

14. Adolfo R. Geronimo             -- PDR-LM Coalition

15. Ricardo T. Gloria                 -- LAKAS-NUCD UMDP

16. Teofisto T. Guingona            -- LAKAS-NUCD UMDP

17. Abraham S. Inbani               -- PDR/LM Coalition

18. Robert S. Jaworski              -- LAMMP

19. Fidel C. Lagman                  -- LAMMP

20. Reynante M. Langit              -- PDR/LM Coalition

21. Loren B. Legarda-Leviste      -- LKAS-NUCD UMDP

22. Oliver O. Lozano                -- INDEPENDENT

23. Fred Henry V. Marallag                   -- KPP

24. Blas F. Ople                      -- PMP-LAMMP Coalition

25. John Reinner Osmeña                    -- NPC/LAMMP

26. Roberto M. Pagdanganan      -- LAKAS-NUCD UMDP

27. Charito B. PLaza                 -- LIBERAL PARTY

28. Hernando B. Perez              -- LAKAS-NUCD UMDP

29. Aquilino Q. Pimentel             -- LAMMP(PDP/LABAN)

30. Santanina C.T. Rasul            -- LAKAS-NUCD UMDP

31. Ramon B. Revilla                 -- LAKAS-NUCD UMDP

32. Miguel Luis R.Romero           -- LAMMP

33. Roberto S. Sebastian           -- PDR-LM Coalition

34. Roy B. Señeres                  -- PDR-LM Coalition

35. Vicente C. Sotto III               -- LDP/LAMMP Coalition

36. Hadja Putri Zorayda             -- PDR-LM Coalition

A. Tamano

37. Ruben T. Torres                 -- LAMMP

38. Jose M. Villegas, Jr.             -- LM (Workers Party) /

                                         PDR

39. Freddie N. Webb                 -- LDP/LAMMP

40. Haydee B. Yorac                -- Independent"

[24]
. 1 each for president, vice president, congressman, governor, vice governor, mayor
and vice mayor, 12 for senator, at least 5 for Sangguniang Panlalawigan members; also
at least 5 for Sangguniang Bayan/Panlungsod members; and 1 for party list
representatives.
[25]
 Compliance dated March 13, 1998, p. 4
[26]
 The Comelec has not even paid the per diem and allowances of the public school
teachers who served during the last barangay elections. How can it expect to pay for the
Comelec TV and radio time? (Memorandum of Petitioners-in-Intervention, p. 33.)
[27]
 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 people peaceably to assemble and petition the government for redness of
grievances"
[28]
 Article III of the Constitution also provides:
"Sec 7 The right of the people to information on matters of oublic 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."
[29]
 The time-honored doctrine against prior restraint is stated in New York
Times v. United States, 403 US 713 (1971), which has been invariably applied in our
jurisdiction, in this wise: "Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity." The Government
`thus carries a heavy burden of showing justification for the enforcement of such a
restraint."' (Bernas, The Commission of the Republic of the Philippines, 1987 ed., Vol. I.,
p. 142.)
[30]
 With apologies to Lew Brown and Buddy (George Gard) De Sylvia, "the Best Things in
Life Are Free," Good News, 1927, as quoted by John Bartlett in Bartlett's Familiar
Quotations, 1980 ed., p. 825.
[
31] For instance, Elmulong vs. Division Superitendent of Schools of Cebu, 219 SCRA
256, March 1, 1993, reversed the Court's 34-year-old doctrine laid down in
Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right to
Jehovah's Witnesses "to refuse to salute the Philippine flag on account of their religious
beliefs." Similarly, Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987,
abandoned the 12- year-old ruling in Aquino Jr. vs. Military Commission, 63 SCRA 546,
May 9, 1975, which recognized the jurisdiction if military tribunals to try civilians for
offenses allegedly committed during martial law. The Court likewise reversed itself in
EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier ruling in
National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the validity of
certain presidential decrees regarding the determination of just compensation. In the
much earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the
Court revoked its holding in Involutionary Insolvency of Mariano Velasco & Co., 55 Phil
353, November 29, 1930, regarding the relation of the insolvency law with the then
COde of Civil procedure and with the Civil Code. Just recently, the Court, in
Kilosbayan vs. morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant of
standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110, May 5,
1994.

SEPARATE CONCURRING OPINION

PUNO, J.:

In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No.

6646 and Resolution No. 2974 of the COMELEC implementing said law. They contend:
“I
THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON
THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION
UPON WHICH IT IS SOUGHT TO BE GROUNDED.

II
CONTRARY OT THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT
LIMITED IN TIME AND SCOPE OF APPLICATION.

A.          THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS

ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.
B.          THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF
APPLICABILITY. INSOFAR AS THE CANDIDATE’S FREEDOM TO EXPRESS
THROUGH THE MASS MEDIA, IT IS ABSOLUTE, ALL-ENCOMPASSING,
COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR
RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.

IV
THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE
DESIRED END.

A.          INSTEAD OF ‘LEVELING THE PLAYING FIELD,’ INSOFAR AS THE

USE OF MASS MEDIA FOR POLITICAL PURPOSES IS CONCERNED, THE
POLITICAL AD BAN HAS ABOLISHED THE PLAYING FIELD.
B.          THERE IS NO REASONABLE NECESSITY FOR THE AD BAN,
BECAUSE IT DOES NOT PREVENT THE RICH CANDIDATE FROM USING
HIS SUPERIOR RESOURCES TO THE UNDUE DISADVANTAGE OF THE
POOR CANDIDATE.
C.          THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD
BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN
ORDER TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE
ADVANTAGE OF HIS SUPERIOR RESOURCES.
V
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON
MATTERS OF PUBLIC CONCERN.

VI
THERE IS NO NEED FOR ‘EMPIRICAL DATA’ TO DETERMINE WHETHER THE POLITICAL AD
BAN OFFENDS THE CONSTITUTION OR NOT.”

The Solicitor General and the petitioners-in-intervention likewise contend that

section 11(b) of R.A. No. 6646 is unconstitutional principally because it impairs freedom
of speech and of the press.
A quick glance at petitioners’ arguments against section 11 (b) of R.A. No. 6646 will
show that they are mere rehash of arguments in the NPC case. The lack of new
arguments is a tribute to the brilliant majority decision and equally enlightening
dissenting opinions in said case which petitioners now seek to reexamine. A repetition
of the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero which cites
Buckley v. Valeo,[1] a 1976 case where a divided US Supreme Court ruled that limits on
campaign expenditures violate the guarantee of freedom of speech of some elements of
society in order to enhance the relative voice of others is wholly foreign to the First
Amendment …”.[2]
A reading of American legal literature, however, will reveal that Buckley has been
widely criticized by libertarians because its pro-business thrust has pernicious effects on
efforts to achieve much needed electoral reforms.[3] Typical of the criticisms is the
observation of Wright that the Buckley Court “… has given protection to the polluting
effect of money in election campaigns. As a result, our political system may not use
some of its most powerful defenses against electoral inequalities.”[4] The barrage of
criticisms caused the US Supreme Court to modify its absolute support for free speech in
Buckley. In the 1990 case of Austin v. Michigan State Chamber of Commerce,[5] it upheld
the constitutionality of a Michigan law that prohibited corporations from using
corporate treasury funds to support or oppose any candidate for office. Retreating from
Buckley, the Austin Count recognized the state’s compelling interest in regulating
campaign expenditure. Writing for the majority, Mr. Justice Thurgood Marshall, an icon
of libertarians declared: “Michigan identified as a serious danger the significant
possibility that corporate political expenditures will undermine the integrity of the
political process, and it has implemented a narrowly tailored solution to that problem.”
In his concurring opinion, the last of the libertarians in the US High Court, Mr. Justice
Brennan, held: “In MCFL, we held that a provision of the Federal Election Campaign Act
of 1971 (FECA), x x x similar to the Michigan law at issue here, could not be applied
constitutionally to a small, anti-abortion advocacy group. In evaluating the First
Amendment challenge, however, we acknowledge the legitimacy of Congress’ concern
that organizations that amass great wealth in the economic marketplace should not gain
unfair advantage in the political marketplace.”
There is less reason to apply the discredited Buckley decision in our setting. Section
11 (b) of R.A. No. 6646 is based on provisions of our Constitution which
have no counterparts in the US Constitution. These provisions are:
“Art. II, section 26.  The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.

Art. XIII, section 1.  The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Art. IX (c) (4).         The Commission may, may during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits from the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates
therefor for public information campaigns and forms among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections.”

A member of the Constitutional Commission, now our distinguished colleague, Mr.

Justice Hilario Davide, Jr., well explained these new wrinkles in our Constitution, viz.:
xxx
“Aware of the lamentable fact in the Philippines, no gap between these two
unavoidable extremes of society is more pronounced than that in the field of politics,
and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours has
been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a
poor candidate in an election is almost always an exception. Arrayed against the vast
resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting chance. Of course, there have been isolated
instances – but yet so few and far between – when poor candidates made it.”[6]

He stressed that this thrust for political equality is an improvement of our past
Constitutions which merely sought to establish equality in the economic and social
fields.[7]
It is difficult to think why such an egalitarian law like Section 11(b) of R. A. No. 6646
should be condemned when it equalizes the political opportunities of our people. The
gap between the perfumed few and the perspiring many in our country is galloping at a
frightening pace. As the cost of election spirals at an immoral speed, the levers of
political power are wielded more and more by the wealthty alone. The subject law
attempts to break this control by reducing the purchasing power of the peso of the rich
in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of freedom of speech
should not be used to frustrate legislative attempts to level the playing field in
politics. R.A. No. 6646 does not curtail speech as it no more than prevents the abusive
use of wealth by the rich to frustrate the poor candidate’s access to media. It seems to
me self-evident that if Congress can regulate the abuse of money in the economic
market so can it regulate its misuse in the political freemarket. Money talks in politics
but it is not the specie of speech sanctified in our Consititution. If we allow money to
monopolize the media, the political freemarket will cease to be a market of ideas but a
market for influence by the rich. I do not read freedom of speech as meaning more
speech for the rich for freedom of speech is not guaranteed only to those who can
afford its exercise. There ought to be no quarrel with the proposition that freedom of
speech will be a chimera if Congress does not open the opportunities for its exercise.
When the opportunities for exercise. When the opportunities for its exercise are
obstructed by the money of the rich, it is the duty of Congress to regulate the misuse of
money --- for in the political marketplace of ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped countries where
sharp disparities in wealth exist, the threat to freedom of speech comes not only from
the government but from vested interests that own and control the media. Today,
freedom of speech can be restrained not only by the exercise of public power but also
by private power. Thus, we should be equally vigilant in protecting freedom of speech
from public and private restraints. The observation of a legal scholar is worth
meditating, vis.: “With the development of private restraints on free expression, the
idea of a free marketplace where ideas can compete on their merits has become just as
unrealistic in the twentieth century as the economic theory of perfect competition. The
world in which an essentially rationalist philosophy of the first amendment was born has
vanished and what was rationalism is now romance.”[8]
I vote to dismiss petition.

[1]
 424 US 1 (1976); see also First National Bank of Boston v. Belloti, 435 US 765 (1978).
[2]
 Id.  At pp. 48-49.
[3]
 Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to
Political Equality, 82 Col. L. Rev. No. 4 (May 1982); Abrogast, Political Campaign
Advertising and the First Amendment: A Structural-Functional Analysis of Proposed
Reform, 23 Akron L. Rev. 2091 (1989); Blum, the Divisible First Amendment: A Critical
Functionalist Approach to Freedom of Speech and Electoral Campaign Spending, 58,
N.Y.U.L. Rev. 1273 (1983).
[4]
 Wright, op cit, p. 609.
[5]
 494 US 652 (1990).
[6]
 Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).
[7]
 Id., at p. 18.
[8]
 Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641
(1967).
 DISSENTING OPINION

ROMERO, J.:

“A foolish consistency is the hobgoblin of little minds….”[1]

Not wishing to be held hostage by Emerson's “hobgoblin,” I dare to break away

from a past position and encapsulize my ruminations in a dissenting opinion.

When, If At All, May The Court Reverse Itself?

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section
11(b) of R.A.6646 is a reasonable restriction on the freedom of expression guaranteed
by the Constitution.[2] Our six-year experience with the ban on political advertisements,
however, constrains me to dissent. While it is desirable, even imperative, that this
Court, in accordance with the principle of stare decisis, afford stability to the law by
hewing to doctrines previously established, said principle was never meant as an
obstacle to the abandonment of established rulings where abandonment is demanded
by public interest and by circumstances.[3] Reverence for precedently simply as
precedent cannot prevail when constitutionalism and public interes demand otherwise.
Thus, a doctrine which should be abandoned or modified should be abandoned or
modified accordingly. More pregnant than anything else is that the court should be
right.[4]
I submit that our country’s past experience in the 1992 and 1995 elections, as well
as contemporary events, has established that Section 11(b) of R.A. 6646 falls short of
rigorous and exacting standard for permissible limitation on free speech and free press.
In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section
11(b), pronouncing the same to be authorized by Article IX(C), Section 4 of the
Constitution which reads:
“Section 4 The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchise or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
priveleges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time
and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the object of
holding fee, orderly, honest, peaceful and credible elections.”

Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution,
is essentially an express manifestation of the comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public necessity and
upon the right of the state and the public to self-protection. For this reason, its scope
expands and contracts with changing needs.[5] In the words of Mr. Justice Isagani A.
Cruz:
“Police power is dynamic, not static, and must move with the moving soceity it is
supposed to regulate. Conditions change, circumstances vary; and to every such
alteration the police power must conform. What may be sustained as a valid exercise of
the power now may become constitutional heresy in the future under a different factual
setting. Old notions may become outmoded even as new ideas are born, expanding or
constricting the limits of the police power. For example, police measures validly enacted
fifty years ago against the wearing of less than sedate swimsuits in public beaches would
be laughed out of court in thses days of permissiveness…(T)he police power continues
to change even as constraints on liberty diminish and private property becomes more
and more affected with public interest and therefore subject to regulation” (Italics ours).
[6]

Thus, when the temper and circumstances of the times necessitate a review, this
Court should not hesitate to reverse itself, even on constitutional issues; for the legal
problems with which society is beset continually cannot be merely considered in the
abstract, but must be viewed in light of the infinite motley facets of human experience.
As aptly stated by Mr. Justice Holmes, “The life of the law has not been logic: it has been
experience.”
By way of illustration, we first held, in the celebrated Flag Salute Case,[7] that:
“the flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which it
and the Constitution guarantee and protect. Under a system of complete separation of
church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag salute
is no more a religious ceremony than the taking of an oath of office by a public official or
by a public candidate for admission to the bar”

xxx  xxx                              xxx
The children of Jehovah’s Witnesses cannot be exempted from participation in the flag
ceremony. They have no valid right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize the rest of the school
population which by far constitute the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory laws,
rules and regulations promulgated by competent authority.”

The Court further predicted that exempting Jehovah’s Witnesses from participating
in the flag ceremony would ultimately lead to a situation wherein:
“[T]he flag ceremony will become a thing of the past or perhaps conducted with very
few participants, and the time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was
granted an exemption.”
 Thirty-two years later, events caught up with the changing political climate, such
that an undivided Court pronounced, in Ebralinag v. The Division Superintendent of
School of Cebu[8]  that:
“the idea that one may be compelled to salute the flag, sing the national anthem, and
recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one’s
job or of being expelled from school, is alien to the conscience of the present generation
of Filipino who their teeth on the Bill of Rights which guarantees their right to free
speech and the free exercise of religious profession and worship

xxx  xxx                              xxx
The sole justification for a prior restraint or immitation on the exercise of religious
freedom is the existence of a grave and present 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, that the State has a right (and duty) to prevent Absent such a
threat to public safety, the expulsion of petitioners from the schools is not justified.”

The Court held that its earlier prediction of dire consequences had not come to
pass. It concluded that exempting Jehovah’s Witnesses from attending flag ceremonies
would not produce a nation “untaught and uninculcated in and not imbued with
reverence for the flag and love of country, admiration for national heroes and
patriotism.”
In much the same manner, in the early case of People v. Pomar,[9] the Court struck
down as a violative of the freedom of contract, a statute prescribing a thirty-day
vacation with pay both before and after confinement arising from pregnancy. The Court
said:
“The rule in this jurisdiction is, that the contracting parties may establish any
agreements, terms, and conditions they may deem advisable, provided they are not
contrary to law, morals or public policy.”

Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled
that the right to contract about one’s affairs is a part of the liberty of the individual
guaranteed by the due process clause. The Court also cited the “equality of right”
principle, holding that “(I)n all such particulars the employer and the employee have
equality of right, and any legislation that disturbs that equality is an arbitrary
interference with the liberty of contract, which no government can legally justify in a
free land…Police power, the Court conceded, is an expanding power; but it cannot grow
faster than the fundamental law of the state… If the people desire to have the police
power extended and applied to conditions and things prohibited by the organic law,
they must first amend that law.[10]
Sixteen years later, the validity of the above pronouncement was rejected by the
Court in Antamok Goldfields Mining Co. v. CIR.[11] which rationalized its volte-face stance,
thus: (I)n the midst of changes that have taken place, it may likewise be doubted if the
pronouncement made by this court in the case of People v. Pomar…still retains its
virtuality as a living principle. The policy of laissez faire has to some extent given way to
the assumption by the government of the right of intervention even in contractual
relations affected with public interest.”
 Similarly, events subsequent to the Court’s ruling in Avelino v. Cuenco[12]  impelled
the Court to reverse its original position. In this case, the Court initially refused to take
cognizance of the raging controversy to determine who was the rightful president of the
Philippine Senate, ruling that in view of the separation of powers, the question was a
political one not within its jurisdiction. Despite such a ruling, almost one-half of the
members of the Senate refused to acknowledge Mariano Cuenco as the acting
President, as a result of which legislative work came to a standstill. In other words of
Justice Perfecto, “the situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court ….
The judiciary ought to ripen into maturity if it has to be true to its role as spokesman of
the collective conscience, of the conscience of humanity.” The Court, thus, assumed
jurisdiction over the case, rationalizing that supervising events justified its intervention.
From the foregoing, it can be seen that the inexorable march of events, and the
liberalizing winds of change may very well signal a needed shift in our conception of the
permissible limits of regulation in the name of police power. Verily, while the validity
of NPC v. COMELEC may have been etched on granite at the time of its promulgation,
events subsequent thereto now call into question the very underpinnings of
said ponencia. To my mind, the hoary maxim that “time upsets many fightings faiths”
still holds true, and the Court must be ever resilient and adaptable in order to meet the
protean complexities of the present and future generation.
In NPC v. COMELEC, the court held that:
“(N)o presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may result
in some limitation of the right of free speech and free press. For supervision or
regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time-honored one –
that a statute is presumed to be constitutional and that he party asserting its
unconstitutionality must discharge the burden of clearly and convincingly proving that
assertion.”

This upends the familiar holding that “any system of prior restraint of expression
comes to this Court bearing a heavy presumption against its constitutional validity, with
the Government carrying a heavy burden of showing justification for the enforcement of
such a restraint.”[13] This presumption was even reiterated in the recent case of Iglesia ni
Cristo v. CA,[14] wherein we ruled that “deeply ensconced in our fundamental law is its
hostility against all prior restraints on speech…Hence, any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows. It
is the burden of the respondent… to overthrow this presumption. If it fails to discharge
this burden, its act of censorship will be struck down.” NPC v. COMELEC, insofar as it
bestows a presumption of validity upon a statute authorizing COMELEC to infringe upon
the right of free speech and free press, constitutes a departure from this Court’s
previous rulings as to mandate its re-examination.
In this connection, it bears emphasis that NPC v. COMELEC was the product of a
divided court, marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez,
and Paras. This fact gains significance when viewed in light of the changes in the
composition of the court. While a change in court composition, per se, does not
authorize abandonment of decisional precedents, it is apropos to keep in mind the
pronouncement by the Court in Philippine Trust Co. and Smith, Bell and Co. v. Mitchell,
[15]
 which reads as follows:
“Is the court with new membership compelled to follow blindly the doctrine of the
Velasco case? The rule of stare decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the
court should be right.” (Italics ours)

Are the Restrictions Imposed by Sec. 11(b) of  R.A.

6646 on Freedom of Expression Valid?

Preliminaries having been disposed of, we proceed to the crux of the matter.
Freedom of speech has been defined as the liberty to know, to utter and to argue freely
according to conscience, above all liberties. It thus includes, not only the right to express
one’s views, but also other cognate rights relevant to the free communication ideas, not
excluding the right to be informed on matters of public concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on
the freedom of expression, to be valid. First, the prohibition is limited in the duration of
its applicability and enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period when the electorate
clamores for more and accurate information as their basis for intelligent voting. To
restrict the same only defeats the purpose of holding electoral campaigns – to inform
the qualified voter of the qualifications of candidates for public office, as well as the
ideology and programs of government and public service they advocate, to the end that
when election time comes, the right of suffrage may be intelligent and knowingly, of not
always wisely, exercised. Opening all avenues of information to the estimated 36.4
million voters is crucial for the intelligent exercise of the right of suffrage in the May 11
polls, considering that they will be voting for an average of thirty elective position.[16]
Second the prohibition is of limited application, as the same is applied only to the
purchase and sale of print space and air time for campaign or other political purposes.
“Section 11(b) does not purport in any way to restrict the reporting by newspapers or
radio or television stations of news or newsworthy events relating to candidates, their
qualifications, political parties and programs of government.” It does not reach
commentaries and expressions of belief or opinion by reporters or broadcasters or
editors or commentators or columnists in respect of candidates, their qualifications, and
programs and so forth. To be sure, newspaper, radio and television stations may not be
restricted from reporting on candidates, their qualifications, and programs of
government, yet, admittedly, the freedom of expression of the candidates themselves in
the manner they choose to, is restricted. Candidates are thereby foreclosed from
availing of the facilities of mass media, except through the filtering prism of the
COMELEC.
Not to be overlooked is the stark truth that the media itself is partisan. In a
study[17] commissioned by the COMELEC itself to determine whether certain newspaper
adhered to the principles of fairness and impartiality in their reportage of the
presidential candidates in the 1992 elections, the results disclosed that newspapers
showed biases for or against certain candidates. Hence, the contention that “Section11
(b) does not cut off the flow of media reporting, opinion or commentary about
candidates, their qualifications and platforms and promises” simply is illusory. Editorial
policy will always ensure that favored ones will get minimal exposure, if at all. This
underscores the need to give candidates the freedom to advertise, if only to counteract
negative reporting with paid advertisements, which they cannot have recourse to with
the present prohibition. Worse, the ban even encourages corruption of the mass media
by candidates who procure paid hacks, masquerading as legitimate journalist, to sing
them paeans to the high heavens. Wittingly or unwittingly, the mass media, to the
detriment of poor candidates, occassionally lend themselves to the manipulative
devices of the rich and influential candidates.
Finally, it is alleged that while Section 1(b) prohibited the sale or donation by mass
media of print space or air time for campaign or other political purposes, COMELEC, by
way of exception, was mandated to purchase print space or air time, which space and
time it was required to allocate, equally and impartially, among the candidates for
public office. Hence, whatever limitation was imposed by Section 11 (b) upon the right
to free speech of the candidates was found not to be unduly repressive or unreasonable
inasmuch as they could still realize their objective as long as it was coursed through
COMELEC. COMELEC it was that shall decide what, who, which media to employ and the
time allocation for the candidates who signify their desire to avail of the agency’s
airtime and print space. Why accord to COMELEC such powers in the name of
supervision and regulation at the expense of the constitutionality hallowed freedom of
expression?
Given the conditions then prevailing, the Court’s ruling in NPC v. COMELEC may
have been valid and reasonable; yet today, with the benefit of hindsight, it is clear that
the prohibition has become a woeful hindrance to the exercise by the candidates of
their cherished right to free expression and concomitantly, a violation of the people’s
right to information on matters of public concern. As applied, it has given an undue
advantage to well-known popular candidates for office.
In the hierarchy of fundamental civil liberties, the right of free expression occupies a
preferred position,[18] the sovereign people recognizing that it is indispensable in a free
society such as ours. Verily, one of the touchstones of democracy is the priciple
that free political discussion is necessary if government is to remain responsive to the
will of the people. It is a guarantee that the people will be kept informed at all times
sufficiently to discharge the awesome responsibilities of sovereignty.
Yet, it is also to be conceded that freedom of expression is not an absolute right.
The right of privelege of free speech and publication has its limitations, the right not
being absolute at all times and under all circumstances. For freedom of speech does not
comprehend the right to speak whenever, however, and wherever one pleases, and the
manner, and place, or time of public discussion can be constitutionally controlled.[19]
Still, while freedom of expression may not be immune from regulation, it does not
follow that all regulation is valid. Regulation must be reasonable as not to constitute a
repression of the freedom of expression. First, it must be shown that the interest of the
public generally, as distinguished from that of a particular class requires such regulation.
Second, it must appear that the means used are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals.
 As to the first, NPC v. COMELEC, this Court declared that the ban on political
advertising aims to assure equality of opportunity to proffer oneself for public service by
equalizing, as far as practicable, the situations of rich and poor candidates by preventing
the former from enjoying the undue advantage offered by huge campaign “war chests.”
While there can be no gainsaying the laudable intent behind such an objective, the
State being mandated to guarantee equal access to opportunities for public service, the
prohibition has had the opposite effect. Instead of “equalizing” the position of
candidates who offer themselves for public office, the prohibition actually gives an
unfair advantage to those who have wide media exposure prior to the campaign period.
Instead of promoting the interest of the public in general, the ban promotes the interest
of a particular class of candidates, the prominent and popular candidates for public
office. What is in store for the relatively obscure candidate who wants to pursue his
candidacy? Eager to trumpet his credentials and program of government, he finds
himself barred from using the facilities of mass media on his own. While incumbent
government officials, show business personalities, athletes and prominent media men
enjoy the advantage of name recall due to past public exposure, the unknown political
neophyte has to content himself with other for a, which given the limited campaign
period, cannot reach the electorate as effectively as it would through the mass media.
To be sure, the candidate may avail himself of “COMELEC Space” and “COMELEC Time,”
but the sheer number of candidates does not make the same an effective vehicle of
communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral Argument held
by the Court en banc, admitted that no candidate has as yet applied for COMELEC air
time and space.
More telling, the celebrities are lavished with broader coverage from newspaper,
radio and television stations, as well as via the commentaries and expressions of belief
or opinion by reporters, broadcasters, editors, commentators or columnists, as they are
deemed more newsworthy by media, thus generating a self-perpetuating cycle wherein
political unknowns, who may be more deserving of public office, campaign in relative
obscurity compared to their more popular rivals. Instead of equalizing opportunities for
public service, the prohibitioin not only perpetuates political inequality, but also
invisiously discriminates against lesser-known candidates.
While Article IX(C), Section 10 of the Constitution provides that “(b)ona fide
candidates for any public office shall be free from any form of harassment and
discrimination,” Article IX (C), Section 4 is nothing if antithetical to the former provision
as, in its application, it is productive of a situation wherein political neophytes are
blatantly discriminated against. Much as we recognize the basic canon in Constitutional
construction that the Constitution must be interpreted in such a way as to harmonize all
its provision if the Charter is to be construed as a single, comprehensive document and
not as a series of disjointed articles or provisions, the predictable effect is for one
provision to negate the other.
As to the second requisite, experience shows that the ban on political
advertisements has not been reasonably necessary to accomplish its desired end. First,
there are more than 70 provinces, more than 60 cities and more than a thousand
municipalities spread all over the archipelago. Previous elections have shown that the
ban on political advertising forces a candidate to conduct a nationwide whistle-stop
campaign to attain maximum exposure of his credentials and his program of
government. Obviously, this necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of 90 days. Given the
enormous logistics needed for such a massive effort, what are the chances for an
impecunious candidate who sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority of the
populace more than other instruments of information and dissemination, being the
most pervasive, effective and inexpensive. A 30-second television advertisement,
consting around P35,000.00 at present rates, would, in an instant, reach millions of
viwers around the country in the comfort of their homes. Indeed, the use of modern
mass media gives the poor candidate the opportunity to make himself known to the
electorate at an affordable cost. Yet, these means of communication are denied such
candidates due to the imagined apprehension that more affluent candidates may
monopolize the airwaves. This fear, however, need not materialize as the COMELEC is
precisely empowered to regulate mass media to prevent such a monopoly. Likewise, the
ceiling on election spending imposed by law upon all candidates, regardless, will also
serve as a deterrent.
Second, the means employed is less than effective, for with or without the ban,
moneyed candidates, although similarly barred from buying mass media coverage, are
in a position to lavish their funds on the propaganda activities which their lesser-
endowed rivals can ill-afford. Furthermore, we take judicial notice of the inability of
COMELEC to enforce laws limiting political advertising to “common poster areas.” Many
places in cities have been ungainly plastered with campaign materials of the better off
candidates. What use is there in banning political advertisements to equalize the
situation between rich and poor candidate, when the COMELEC itself, by its failure to
curb the political excesses of candidates, effectively encourages the prevailing
disparities? Why then single out political advertising? What is the reasonable necessity
of doing so?
To be realistic, judicial notice must be taken on the fact that COMELEC, in narrowing
down its list of “serious” candidates, considers in effect a candidate’s capability to wage
an effective nationwide campaign – which necessarily entails possession and/or
availability of substantial financial resources. Given this requirement, the objective of
equalizing rich and poor candidates may no longer find relevance, the candidtes
ultimately allowed to run being relatively equal, as far as resources are concerned.
Additionally, the disqualification of nuisance candidates allegedly due to their inability
to launch serious campaigns, itself casts doubt on the validity of the prohibition as a
means to achieve the state policy of equalizing access to opportunities for public
service. If poor and unknown candidates are declared unfit to run for office due to their
lack of logistics, the political ad ban fails to serve its purpose, as the persons for whom it
has been primarily imposed have been shunted aside and thus, are unable to enjoy its
benefits.
It must be kept in mind that the holding of periodic elections constitute the very
essence of a republican form of government, these being the most direct act and
participation of a citizen in the conduct of government. In this process, political power is
entrusted by him, in concert with the entire body of the electorate, to the leaders who
are to govern the nation for a specified period. To make this exercise meaningful, it is
the duty of government to see to it that elections are free and honest and that the voter
is unhampered by overt and covert inroads of fraud, force and corruption so that the
choice of the people may be untrammelled and the ballot box an accurate repository of
public opinion. And since so many imponderables may affect the outcome of elections --
qualifications of voters and candidates, education, means of transportation, health,
public discussion, private animosities, the weather, the threshold of a voter’s resistance
to pressure – the utmost ventilation of opinion of men and issues, through assembly,
association and organizations, both by the candidate and voter, becomes a sine qua
non for elections to truly reflect the will of the electorate.
With the prohibition on political advertisements except through the Comelec space
and time, how can a full discussion of men, issues, ideologies and programs be realized?
Article III, Section 4 of the Constitution provides that “(n)o law shall be passed abridging
the freedom of speech, of expression, of the press, or the right of the people peaceably
to assemble and petition the government of redress of grievaces.” Implicit in this
guarantee is the right of the people to speak and publish their views and opinions on
political and other issues, without prior restraint and/or fear of subsequent
punishment. Yet Section 11(b), by authorizing political advertisements only via the
COMELEC effectively prevents the candidates from freely using the facilities of print and
electronic mass media to reach the electorate. A more blantant form of prior restraint
on the free flow of information and ideas can hardly be imagined. To be sure, it does not
constitute an absolute restriction, but it is restriction nonetheless, as odious and
insidious as any that may be conceived by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political advertisements
on radio and television would not endanger any substantial public interest. Indeed,
allowing advertisements would actually promote public interest by furthering public
awareness of election issues. The objective, equalizing opportunities for public service,
while of some immediacy during election times, does not justify curtailing the citizen’s
right of free speech and expression.
“Not only must the danger be patently clear and pressingly present but the evil sought
to be avoided must be so substantive as to justify a clamp over one’s mouth or a writing
instrument to be stilled. For these reasons, any attempt to restrict these liberties must
be justified by clear public interest, threatened not doubtfully or remotely but by clear
and present danger. The rational connection between the remedy provided and the evil
to be curbed, which in other context might support legislation against attack on due
process grounds, will not suffice. These right rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate
time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible
limitation.”[20]

No such clear and present danger exist here as to justify banning political
advertisements from radio and television stations.
Past experience shows that the COMELEC has been hard put effectively informing
the voting populace of the credentials, accomplishments, and platforms of government
of the candidates. There are 17,396 national and local elective public positions[21] which
will be constested by an estimated 100,000 candidates[22] on May 11, 1998. For national
positions, the list has been trimmed down to 11 candidates for president, 9 candidates
for vice-president, and 40 candidates for senator. It is difficult to see how the number of
candidates can be adequately accomodated by “COMELEC Space” and “COMELEC time”
Resolution No. 2983 of the COMELEC, issued in compliance with Section 92 of B.P. 881,
mandates that at least thirty minutes of prime time be granted to the Commission, free
of charge, from February 10, 1998 until May 9, 1998.[23] Thirty minutes of prime-time for
eighty-nine days (89) is scarcely enough time to introduce candidates to the voters,
much less to properly inform the electorate of the credentials and platforms of all
candidates running for national office. Let us be reminded that those running for local
elective positions will also need to use the same space and time from March 27 to May
9, 1998, and that the COMELEC itself is authorized to use the space and time to
disseminated vital election information.[24] Clearly “COMELEC Space” and “COMELEC
Time” sacrifices the right of the citizenry to be sufficiently informed regarding the
qualifications and programs of the candidates. The net effect of Section 11(b) is, thus, a
violation of the people’s right to be informed on matters of public concern and makes it
a palpably unreasonable restriction on the people’s right to freedom of expression. Not
only this, the failure to “Comelec Space” and “Comelec Time” to adequately inform the
electorate, only highlights the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich and poor
candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisement are
allowed in for a other than modern mass media, thus: “aside from Section 11(b) of RA
6646 providing for ‘COMELEC Space’ and ‘COMELEC Time,’ Sections 9 and 10 of the
same law afford a candidate several venues by which he can fully exercise his freedom
of expression, including freedom of assembly.” A concurring opinion points to the
mandate of COMELEC to encourage non-political, non-partisan private or civic
organization to initiate and hold in every city and municipality, public fora at which all
registered candidates for the same office may participate in, the designation of common
poster areas, the right to hold political caucuses, conferences, meetings, rallies, parades,
and other assemblies, as well as the publication and distribution of campaign literature.
All these devices conveniently gloss over the fact that for the electorate, as shown in
surveys by the Ateneo de Manila University’s Center for Social Policy and Public Affairs,
mass media remains to be the most important and accessible source of information
about candidates for public office.
It must be borne in mind that the novel party-list system will be implemented in the
impending elections. The party-list system, an innovation introduced by the 1987
Constitution in order to encourage the growth of multi-party system is designed to give
a chance to marginalized sectors of society to elect their representative to the Congress.
A scheme aimed at giving meaningful representation to the interest of sectors which are
not adequately attended to in normal legislative deliberations, it is envisioned that
system will encourage interest in political affairs on the part of a large number of
citizens who feel that they are deprived of the opportunity to elect spokesmen of their
own choosing under the present system. It is expected to forestall resort to extra-
parliamentary means by minority groups which would wish to express their interest and
influence governmental policies, since every citizen is given a substantial representation.
[25]

Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas worker and professional sectors[26] will have the opportunity to elect
representatives to Congress. With the prohibition on political advertisements, however,
those parties who wish to have their candidates elected as sectoral representatives, are
prevented from directly disseminating their platforms of government through the mass
media. The ban on political advertisements thus serves as a deterrent to the
development of self-reliance, self-development, logistical and organizational capability
on the part of sectoral parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the chance of
consolidating a mass base sorely needed for a fair chance of success in a highly
competitive political exercise. Likewise, with the inability of the candidates to reach the
sectors as they seek to represent, the right of the people belonging to these sectors to
be informed on matters of concern to them is likewise violated.[27]
Finally, NPC v. COMELEC invokes the specter of the “captive audience” to justify its
stand against political advertisements. Describing political advertisements as “appealing
to the non-intellective faculties of the captive and passive audience,” it says that
anyhow, the only limitation imposed by Section 11(b) upon the free speech of
candidates is on their right to bombard the helpless electorate with paid advertisements
commonly repeated in the mass media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the
like, it is not for this Court to determine what the people may or may not watch or read.
Even “mind-numbing” political advertisements are subject to the constitutional
safeguard of due process.

Freedom of Speech Expression Remains A Fresh

And Vital Verity

The guarantee of the freedom of speech which has been defined by Wendell Philips
as “the instrument and guarantee and the bright and consummate flower of all liberty,”
has always been granted a predominant status in the hierarchy of individual rights.[28] It
is founded on the belief that the final end of the state was to make men free to develop
their faculties and that freedom to think as you will and to speak as you think are means
indespensable to the discovery and spread of political truth.[29] Its purpose is to preserve
an uninhibited marketplace of ideas where truth will ultimately prevail.[30] “An individual
who seeks knowledge and truth must hear all sides of the question, consider all
alternatives, test his judgement by exposing it to opposition and make full use of
different minds. Discussion must be kept open no matter how certainly true an accepted
opinion may be; many of the most widely accepted opinions have turned out to be
erroneous. Conversely, the same principles apply no matter how false or pernicious the
new opinion may be; for the unaccepted opinion may be true and partially true; and
even if false, its presentation and open discussion compel a rethinking and retesting of
the accepted opinion.[31] As applied to instant case, this court cannot dictate what the
citizens may watch on the ground that the same appeals only to his non-intellective
faculties or is mind-deadening and repetitive. A veritable “Big Brother” looking over the
shoulder of the people declaring: “We know better what is good for you,” is passe’
As to the puerile allegation that the same constitutes invasion of privacy, making
the Filipino audience a “captive audience,” the explosive growth of cable television an
AM/FM radio will belie this assertion. Today, the viewing population has access to 12
local TV channels,[32] as well as cable television offering up to 50 additional channels. To
maintain that political advertisements constitute invasion of privacy overlooks the fact
that viewers, with the surfeit of channels, can easily skip to other TV channels during
commercial breaks - a fact which, coupled with the now ubiquitous remote control
device, has become the bane of advertisers everywhere.
 The line between gaining access to an audience and enforcing the audience to hear
is sometimes difficult to draw, leaving the courts with no clearcut doctrine on issues
arising from this kind of intrusion. This is specially true in cases involving broadcast and
electronic media. The US cases cited as authorities on the captive audience
phenomenon, which, incidentally, did not involve the issue of election campaigns,
[33]
 provide little guidance as to whether freedom of speech may be infringed during the
campaign period for national elections on account of the individual’s right to privacy.
[34]
 Prudence would dictate against an infringement of the freedom of speech if we are
to take into consideration that an election campaign is as much a means of
disseminating ideas as attaining political office[35] and freedom of speech has its fullest
and most urgent application to speech uttered during election campaigns. [36] In Buckley
v. Valeo, a case involving the constitutionality of certain provisions of the Federal
Election Campaign Act, the United States Supreme Court per curiam held that:
“the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to “secure the widest possible dissemination of
information from diverse and antagonistic sources” and “to assure unfettered
interchange of ideas for the bringing about of political and social chages desired by the
people.” (italics supplied)[37]

The fear that the candidates will bombard the helpless electorate with paid
advertisements, while not entirely unfounded, is only to be expected considering the
nature of political campaigns. The supposition however that “the political
advertisements which will be “introjected into the electronic media and repeated with
mind deadening frequency” are commonly crafted not so much to inform and educate
as to condition and manipulate, not so much to provoke rational and objective
apparaisal of candidates’ qualifications or programs as to appeal to the intellective
faculties of the captive and passive audience” is not a valid justification for the
infringement of so paramount a right granted by the Constitution inasmuch as it is the
privilege of the electorate in a democratic society to make up their own minds as to the
merit of the advertisements presented. The government derives its power from the
people as the sovereign and it may not impose its standards of what is true and what is
false, what is informative and what is not for the individual who, as a “particle” of the
sovereignty is the only one entitled to exercise this privilege.
Government may regulate constitutionality protected speech in order to promote a
compelling interest if it chooses the least restrictive means to further the said interest
without unnecessarily interfering with the guarantee of freedom of expression. Mere
legislative preference for one rather than another means for combating substantive
evils may well be an inadequate foundation on which to rest regulations which are
aimed at or in their operation diminish the effective exercise of rights to necessary to
maintenance of democratic institutions.[38]
It should be noted that legislature has already seen fit to impose a ceiling on the
candidates’ total campaign expenditures[39] and has limited the political campaign period
to 90 days for candidates running for national office and 60 days for congressmen and
other local officials. With these restrictions, it cannot be gainsaid that the constitutional
provision on social justice has been sufficiently complied with. We see no reason why
another restriction, must be imposed which only burdens the candidates and voters
alike. To make matters worse, we are not even certain as to the efficacy of the “adban”
in curtailing the feared consequences of the object of restriction. Of course, this is not to
say that the law is being struck down as unconstitutional mainly because it is efficacious
or ineeficacious. If this is the only issue which confronts us, there would have
been no need to give due course to the petition inasmuch as we would be inquiring as
to the wisdom of the law and treading into an area which rightfully belongs to the
legislature. Verily, courts cannot run a race of opinions upon points of right, reason and
expediency with the law-making power.[40]

Freedom of Expression Incompatible With Social Justice?

The Costitutional question at hand is not just a simple matter of deciding whether
the “adban” is effective or ineffective in abridging the financial disparity betweem the
rich and poor candidates. Sec. 11(b) of RA No. 6646 strikes at the very core of freedom
of expression. It is unconstitutional not because we are uncertain as to whether it
actually levels the playing field for the candidates but because the means used to
regulate freedom of expression is on all points constitutionally impermissible. It tells the
candidates when, where and how to disseminate their ideas under pain of punishment
should they refuse to comply. The implications of the ban are indeed more complex and
far reaching than approximating equality among the rich and the poor candidates.
The primacy accorded the freedom of expression is a fundamental postulate of our
constitutional system. The trend as reflected in Philippine and American decisions is to
recognize the broadset scope and assure the widest latitude to this guaranty. It
represents a profound commitment to the principle that debate of public issue should
be uninhibited, robust and wide open and may best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are or even
stirs people to anger.[41]
The repression of expression in an attempt to level the playing field between the
rich and the poor candidates is not only unrealistic but goes beyond the permissible
limits of freedom of expression as enshrined in the constitution. Social justice is a
laudable objective but it should not be used as a means to justify infringement of the
freedom of expression if it can be achieved by means that do not necessarily trench on
the individual’s fundamental right. The case of Guido v. Rural Progress Administration,
[42]
 is particularly enlightening. In said case, we had occassion to state that:
“Hand in hand with the announced principle, herein invoked, that “the promotion of
social justice to insure the well being and economic security of all people should be the
concern of the state’, is a declaration with which the former should be reconciled, that
'the Philippines is a Republican state' created to secure to the Filipino people 'the
blessings in independence under a regime of justice, liberty and democracy.' Democracy
as a way of life enshrined in the Constitution, embraces as its necessary components
freedom of conscience, freedom of expression, and freedom in pursuit of happiness. x x
x Social justice does not champion division of property or equality of economic status;
what it and the Constitution do guarantee are equality of economic opportunity,
equality of political rights, equality before the law, equality between values given and
received x x x."
 While we concede the possibility that the rich candidates may dominate the
airwaves to the detriment of the poor candidates, the latter should not be prevented
from replying. While they may be restricted on account of their financial resources, they
are not denied access to the media altogether. This is what is meant by the phrase
"equal time, space, equal opportunity and the right of reply" under Article IX (C)(4) of
the 1987 Constitution which was inserted by the framers of the Constitution as a
reaction to a 1981 ruling of the Supreme Court that when the president speaks over
radio or television, he speaks not as a representative of his party but of the people and
therefore opposition parties have no right to demand equal time[43]
It is ironic that the guarantee of freedom of expression should be pitted against the
consitutional provision on social justice because the freedom of speech is the most
potent instrument of public opinion, not to speak of its being the most effective weapon
for effecting political and social reforms. Certainly, an infringement of the freedom of
speech in a less than heroic attempt at attaining social justice cannot be countenanced,
for in the ultimate analysis social justice cannot flourish if the people's right to speak, to
hear, to know and ask for redress of grievances is watered down.
A word in the intervenors' argument that Resolution No. 2983, Section 2, insofar as
it directs every radio broadcasting and television to provide COMELEC with airtime free
of charge constitutes taking of private property for public use without just
compensation. The COMELEC, anticipating its vulnerability to said challenge passed
Resolution 2983-A on MArch 3, 1998 requiring that it pay just compensation for its
COMELEC time.

Buckley vs. Valeo and Existing US Jurisprudence

The novelist George Orwell once said, "In a society in which there is no law, and in
theory no compulsion, the only arbiter of behavior is public opinion. But public opinion,
because of the tremendous urge to conformity in gregarious animals, is less tolerant
than any other system of law." For want of legislature to equalize the playing field
between the rich and the poor candidates, it has by imposing a complete prohibition on
paid political advertisements, burned down a house to roast a pig. For fear of
accusations that it might be treading into an area which rightfully belongs to the
legislature, the Court today, by sanctioning an unnecessary infringement on the
freedom of speech, has unwittingly allowed the camel's nose into the tent.
My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked
the thrust of our dissenting opinion when we qouted the case Buckley v. Valeo.[44] Lest
we be misunderstood, we have in no way relied on the Buckley v. Valeo case for the
grant of instant petition inasmuch as it has never escaped our notice that legislature has
already seen fit to impose a ceiling on the candidates' total campaign
expenditures[45] Precisely, we have repeatedly emphasized in the dissenting opinion that
we see no reason why another restriction must be imposed on the constitutional
guarantee of freedom of speech which only burdens the candidates and electorates
alike when legislature has already taken steps to comply with the constitutional
provision on social justice by imposing a ceiling on the candidates' total campaign
expenditures and limiting the campaign period to 90 days for candidates running for
national office and 60 days for congressmen and other local officials. We have
mentioned Buckley if only to underscore the fact the due to the primacy accorded to
freedom of speech, court, as a rule are wary to impose greater restrictions as to any
attempt to curtail speeches with political content. To preserve the sanctity of the status
accorded to the said freedom, the US Supreme Court has, in fact, gone as far as
invalidating a federal law limiting individual expenditures of candidates running for
political office.
In any case, to address some misconceptions about existing jurisprudence on the
matter, we now present a brief discussion on Buckley and the preceding US cases. In the
case of Buckley v. Valeo, a divided US Supreme Court, per curiam held that a federal law
limiting individual contributions to candidates for office served the state's compelling
interest in limiting the actuality and appearance of corruption. However a law
limiting expenditures by candidates, individuals and groups was held unconstitutional.
The rationale for the dichotomy between campaign expenditures and contributions has
been explained in this wise - campaign contributions are marginal because they convey
only an undifferentiated expression of support rather than the specific values which
motivate the support. Expenditures, on the other hand, as directly related to the
expression of political views, are on a higher plane of constitutional values. The Court, in
noting that a more stringent justification is necessary for legislative intrusion into
protected speech said, "A restriction on the amount of money a person or a group can
spend on political communication necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size of
the audience reached. This is because virtually every means of communicating in today's
mass requires the expenditure of money."[46]
A more discerning scrutiny of the US cases following Buckley, would show that
while Buckley has been widely criticized, it has, to date, never been modified, much less
discredited. In California Medical Association vs. FEC,[47] a law limiting the amount an
incorporated association can contribute to a multi-candidate political committee was
upheld. The spending was viewed not as independent political speech but rather as
"speech by proxy," hence, the spending was deemed analogous to group contributions
which can be regulated.
In FEC vs. National Conservative Political Action Comm,[48] the US Supreme Court
invalidated a section of the Presidential Election Campaign Fund Act which makes it a
criminal offense for an independent political committee to spend more than $1,000 to
further the election of a presidential candidate who elects public funding. National
Conservative Political Action Committee (NCPAC) and the Fund for a Conservative
Majority (FCM), two political action committees or PAC's, solicited funds in support of
President Reagan's 1980 presidential campaign. The PAC's spent these funds on radio
and television advertising in support of Reagan. The Court, relying
on Buckley v. Valeo and and the distinction it drew between expenditures and
contributions, held that the independent expenditures of the political committees were
constitutionally protected for they "produce speech at the core of the First
Amendment" necessitating a "rigorous standard of review." Justice Rehnquist, for the
court, likened the restriction to allowing a speaker in a public hall to express his views
while denying him use of the amplifier. As in Buckley, independent expenditures, not
coordinated with candidates' political campaign, were seen as presenting a lesser
danger of political quid pro quos. The Court then proceeded to reject efforts to support
the statutory limitation on expenditures on the basis of special treatment historically
accorded to corporations inasmuch as the terms of the Campaign Fund Act "apply
equally to an informal neighborhood group that solicits contributions and spends money
on a presidential election campaign as to the wealthy and professionally managed
PAC's."
In the case of FEC v. Massachussets Citizens for life (MCFL),[49] a provision of the
Federal Election Campaign Act prohibiting direct expenditure of corporate funds to a
non-profit, voluntary political association concerned with elections to public office was
struck down as unconstitutional. No compelling government interest was found to
justify infringement of protected political speech in this case where a small voluntary
political association, which had no shareholders and was not engaged in business,
refused to accept contributions from either business corporations or labor unions.
In Austin v. Michigan Chamber of Commerce,[50] the case cited by Justice Puno, a
Michigan statute prohibiting corporations from making campaign contributions from
their general treasury funds to political candidates was held not to violate the first
amendment even though the statute burdened expressive activity mainly because the
statute was sufficiently narrowed to support its goal in preventing political corruption or
the appearance of undue influence - it did not prohibit all corporate spending and
corporations were permitted to make independent expenditures of political purposes
from segregated funds but not from their treasuries. Notably, the non profit corporation
involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as
the Chamber of Commerce), lacked three of the distinctive features of MCFL, the
organization involved in the FEC vs. National Conservative Political Action Comm[51] case,
namely: (1) The Chamber of Commerce, unlike MCFL, was not formed just for the
purpose of political expression (2) The members of the Chamber of commerce had an
economic reason for remaining with it even though they might disagree with its politics
and (3) The Chamber of Commerce, unlike MCFL, was subject to influence from business
corporations which might use it as a conduit for direct spending which would pose a
threat to the political marketplace.
From the foregoing, it should be obvious that Austin in fact supports the holding
in Buckley v. Valeo and "refines" it insofar as as it allows the regulation of corporate
spending in the political process if the regulation is drawn with sufficient specificity to
serve the compelling state interest in reducing the threat that "huge corporate
treasuries" will distort the political process and influence unfairly the outcome of
elections.
The adban, undoubtedly, could hardly be considered as a regulation drawn with
sufficient specificity to serve compelling government interest inasmuch as it imposes a
complete prohibition on the use of paid political advertisements except through
Comelec time and space despite the fact that Congress has already seen fit to impose a
ceiling on the candidates' total campaign expenditures. While it seems a rather fair
proprosition that Congress may regulate the misuse of money by limiting the candidates
how, when, and where to use their financial resources of political campaigns. Obviously,
it is one thing to limit the total campaign expenditures of the candidates and another to
dictate to them as to how they should spend it.
Freedom of expression occupies a preferred position in the hierarchy of human
values. The priority gives the liberty a sancity and a sanction not permitting dubious
intrusions and it is the character of the right, not the limitation which determines what
standard governs the choice.[52] Consequently, when the government defends a
regulation on speech as a means to redress past harm or prevent anticipated harm, it
must do more than simply "posit the existence of the disease sought to be cured. [53] It
must demonstrate that the recited harms are real, not merely conjectural and that the
regulation will alleviate these harms in a material way.[54]
As earlier pointed out, legislature has already seen fit to impose a ceiling on the
total campaign expenditures of the candidates and has limited the campaign period for
90/60 days. We see no reason why another restriction must be imposed which only
burdens the candidates and the voters alike. The fact alone that so much time has been
devoted to the discussion as to whether the adban does in fact level the playing field
among the rich and poor candidates should be a strong indication in itself that it is a
dubious intrusion on the freedom of expression which should not be countenanced.
Illegitimate and unconstitutional practices make their initial foothold by furtive
approaches and minimal deviations from legal modes of procedure. Hence, courts must
be extremely vigilant in safeguarding the fundamental rights granted by the Constitution
to the individual. Since freedom of expression occupies a dominant position in the
hierarchy of rights under the Constitution to the individual. Since freedom of expression
occupies a dominant position in the hierarchy of rights under the Constitution, it
deserves no less than an exacting standard of limitation. Limitations on the guarantee
must be clearcut, precise and, if needed readily controllable, otherwise the forces that
press towards curtailment will eventually break through the crevices and freedom of
expression will become the exception and suppression the rule.[55] Sadly, the much
vaunted adban failed to live up to such standard and roseate expectations.

Freedom of Expression in Historical Context

At this juncture, as we celebrate the Centennial of our Philippine Independence, it is

timely to call to mind that wars and revolutions have been fought, not only in our shores
and in our time, but in centuries past, halfway around the globe to keep these subject
rights inviolate. To stretch our memories, Spain's adamant denial of basic freedoms to
our hapless forefathers, among others, sparked the Philippine revolution. Jose Rizal,
in "Filipinas Despues de Cien Años"[56]  described the reform a sine quibus non, saying, in
"The minister,... who wants his reforms to be reforms, must begin by declaring the press
in the Philippines free." The Filipino propagandist who sought refuge in the freer
intellectual climate of Spain invariably demanded "liberty of the press, of cults, and of
associations[57] through the columns of "La Solidaridad."
One of the more lofty minds unleashed his fierce nationalistic aspirations though
the novels Noli Me Tangere and El Filibusterismo, necessarily banned from the author's
native land. Eventually, the seeds of these monumental works ignited the flame of
revolution, devouring in the process its foremost exponent, albeit producing a national
hero, Jose Rizal. The mighty pen emerged victorious over the colonizers' sword.
The Malolos Constitution, approved before the turn of century on January 20, 1899,
enshrined freedom of expression in Article 20 of its Bill of Rights, thus:
"Article 20 Neither shall any Filipino be deprived:

1. Of the right to freely express his ideas or opinions, orally or in writing,

through the use of the press or other similar means."[58]
This right, held sacrosanct by the Filipino people and won at the cost of their lives found
its way ultimately in the Constitutions of a later day, reenforced as they were, by the
profound thoughts transplanted on fertile soil by libertarian ideologies. Why emasculate
the freedom of expression now to accord a governmental agency a power exercisable
for a limited period of time for the dubious purpose of "equalizing" the chances of
wealthy and less affluent candidates?
In summary, I hold that Section 11(b) of RA 6646, in the six years that have elapsed
since it was upheld as being in consonance with the fundamental law, has now become
out of sync with the times and, therefore, unreasonable and arbitrary, as it not unduly
restrains the freedom of expression of candidates but corollarily denies the electorate
its fullest right to freedom of information at a time when it should flourish most.
For the reasons stated above, I VOTE to declare Section 11(b) of RA 6646
UNCONSTITUTIONAL.

[1]
 “Self-Reliance.” Emerson’s Essays, Emerson, Ralph Waldo, Books, Inc., N.Y.
[2]
 Article III, 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."
[3]
 Olaguer  v. Military Commission No. 34, 150 SCRA 144 (1987).
[4]
 Olaguer v. Milirary Commission No. 34, 150 SCRA 145 citing Phil. Trust Co. and Smith
Bell and Co. v. Mitchell, 50 Phil. 30 (19330 cited with approval in Koppel (Phils.),
Inc. v. Yatco, 77 Phil. 496 (1946). See also Tan Chong v. Secretary of Labor, 79 Phil. 249
(1947).
[5]
 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY, Vol. I, 1987 ed., p. 34.
[6]
 CRUZ, CONSTITUTIONAL LAW, 1993 ed., p. 43.
[7]
 Gerona v. Secretary of Education, 106 Phil. 2 (1959).
[8]
 219 SCRA 256 (1993).
[9]
 46 Phil. 440 (1924).
[10]
 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY, Vol. II ed., p.40.
[11]
 70 Phil. 340 (1940).
[12]
 83 Phil. 17 (1949).
[13]
 Bernas, The Constitution of the Republic of the Philippines: A Commentary Vol. I, p.
142, citing New York Times vs. United States (403 U.S. 713).
[14]
 259 SCRA 529 (1996).
[15]
 59 Phil. 30 (1933).
[16]
 One president, one vice-president, twelve senators, one congressman, one party-list
representative, one governor, one vice-governor, an estimated five Sangguniang
panlalawigan members, one mayor, one vice-mayor, and an estimated five Sangguniang
Bayan/Panglungsod members.
[17]
 The study was conducted by six senior students of th UP College of Mass
Communications, covering Manila Bulletin, Philippine Daily Inquirer, Philippine Times
Journal, People’s Journal and Tempo – Report of the COMELEC to the President and
Congress of the Republic of the Philippines on the Conduct of the Synchronized National
and Local Elections of May 11, 1992, Vol. I, p. 56.
[18]
 Philippine Blooming Mills Employees Organization vs.  Philippine Blooming Mills, Inc.,
50 SCRA 189 (1973).
[19]
 16A Am Jur 2d, p. 341.
[20]
 Blo Umpar Adiong vs. Comelec, 207 SCRA 712 (1992).
[21]
 Education and Information Department, COMELEC.
[22]
 In 1992, there were 17,282 contested positions, while the total number of candidates
reached 87,770 – Report of the COMELEC to the President and Congress of the Republic
of the Philippines on the Conduct of the Synchronized National and Local Elections of
May 11, 1992, Vol. I, p. 2.
[23]
 Sec. 2 Every radio broadcasting and television station operating under franchise shall
grant the Commission, free of charge, at least thirty (30) minutes of prime time daily, to
be known as “COMELEC Time,” effective February 10, 1998 for candidates for President,
Vice-President and Senators, and March 27 for candidates for local elective offices, until
May 9, 1998.
[24]
 Sec. 3. Uses of “COMELEC Time” – x x x “COMELEC Time” shall also be used by the
Commission in disseminating vital election information.
[25]
 BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 ed., p. 344.
[26]
 Section 3, R.A. 7941.
[27]
 As of February 9, 1998, 93 parties/organizations have filed certificates of candidacy
under the party-list system – Law Division, COMELEC.
[28]
 Mutuc v. Comelec, 36 SCRA 228 (1970); Victoriano v. Elizalde Rope Workers Union,
59 SCRA 54 (1974); Gonzales v. Comelec, 27 SCRA 835 (1969).
[29]
 See concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274 US 357
(1926).
[30]
 Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969).
[
31] Emerson, Thomas. The System of Freedom of Expression, p. 7 (1969).
[32]
 Channels 2, 4, 5, 7, 11, 13, 23, 27, 29, 31, 39.
[33]
 In Columbia Broadcasting v. Democratic National Committee (412 US 94) the court
held that broadcasters may validly refuse to accept paid editorial advertisements from
“responsible entities” wishing to present their views on public issues like, in this
instance, the Business Executives’ Move for Vietnam Peace, expressing their views on
theVietnam conflict. See however CBS v. Fox (453 US 367 [1981]) where the US Supreme
Court held that the Communications Act of 1934 grants an affirmative, enforceable and
limited right of reasonable access to broadcasting media for legally qualified individual
candidates seeking federal elective office. The Court quoted the observation of the
Federal Communications Commission that “An arbitrary blanket ban on the use of the
candidate of a particular class or length of time in a particular period cannot be
considered reasonable. A Federal candidate’s decision as to the best method of
pursuing his or her media campaign should be honored as much as possible under the
“reasonable limits” imposed by the licensee.”
In Public Utilities v. Pollak (343 US 451 [1952]) which was cited in Columbia, the US
Supreme Court rejected the claim that the broadcasting of special programs – in this
case 90% music, 5% news and 5% commercial advertising – in public transit cars violated
the right of the passengers who did not wish to listen to the programs.

In Kovacs v. Cooper (336 US 77 [1949]) the Court upheld an ordinance forbidding the

use on public streets of sound trucks which emit “loud and raucous” noises. Justice
Black in his dissent however cited the case of Saia v. New York (334 US 558 [1948])
where an ordinance banning the use of sound amplification devices except for
dissemination of news items and matters of public concern – provided the police chief’s
permission was obtained, was struck down as unconstitutional. The court in the Saia
case held that, “Loudspeakers are today indespensable instruments of effective public
speech. The sound truck has become an accepted method of campaign.” Adhering to his
dissent in Saia, Justice Frankfurter concurred in Kovacs saying, “So long as the legislature
does not prescribe what may be noisily expressed and what may not be, it is not for us
to supervise the limits the legislature may impose in safeguarding the steadily narrowing
opportunities for serenity and reflection.”
[34]
 The case of Lehman v. Shaker Height (418 US [1974]) is not particularly in point in the
case at bar where a complete prohibition is imposed on the use of newspapers, radio or
television, other mass media, or any person making use of the mass media to sell or give
free of charge print space or airtime for campaign and political purposes except to the
Commission. In the case at Lehman, a city operating a public transit system sold
commercial and public service advertising space for cards on its vehicles, but
permitted no “political” or “public issue” advertising. When petitioner, a candidate for
the Office of State Representative to the Ohio General Assembly failed in his effort to
have advertising promote his candidacy accepted, he sought declaratory relief in the
State courts. The US Supreme Court held that the city consciously has limited access to
its transit system to minimize the chances of abuse, the appearance of favoritism and
the risk of imposing upon a captive audience.
[35]
 Illinois Board of Directors v.  Socialist Workers, 440 US 173 (1979).
[36]
 Eu v. San Francisco Democratic Comm., 489 US 214 (1989).
[37]
 Buckley v. Valeo, 424 US 1 (1976) citing New York Times v.  Sullivan, 84 S Ct. 710,
quoting Associated Press v. United States, 326 US 1 (1945) and Roth vs. United States at
484.
[38]
 Thorhill v. State of Alabama, 310 US 88 (1940).
[39]
 Section 100 of BP 881, otherwise known as the Omnibus Election Code, states:
“No candidate shall spend for his election campaign an aggregate amount exceeding
one peso and fifty centavos for every voter currently registered in the constituency
where he filed his candidacy. Provided that the expenses herein referred to shall include
those incurred or caused to be incurred by the candidate, whether in cash or in kind,
including the use, rental or hire of land, water or aircraft, equipment facilities, apparatus
and paraphernalia used in the campaign; Provided, further that where the land, water
or aircraft, equipment, facilities, apparatus and paraphernalia is owned by the
candidate, his contributor or his supporter, the Commission is hereby empowered to
assess the amount commensurate with the expenses for the use thereof based on the
prevailing rates in the locality and shall be included in the total expense incurred by the
candidate.”
See also related Sections 94-112.
[40]
 Cooley, Thomas, I Constitutional Limitations. 8th Ed. (1927, p. 346.
[41]
 Gonzales v. Comelec, supra.
[42]
 84 Phil. 847 (1949).
[43] 
1 Record 632, 662-66.
[44]
 424 US 1 [1976].
[45] 
See footnote 39.
[46]
 Supra at 19.
[47]
 453 US 182 [1981].
[48]
 470 US 480 [1985].
[49]
 475 US 1063 [1986].
[50]
 494 US 652 [1990].
[51]
 Supra.
[52]
 Thomas v. Collins, 323 U.S. 516 (1945), as cited in the dissenting opinion of Justice
Fernando in Gonzales v. Comelec at p. 885 and in the case of Blo Umpar
Adiong v. Comelec, 207 SCRA 712 [1992].
[53]
 Quincy Cable TV Inc. v. FCC, 786 F2d 1434 [1985].
[54]
 Edenfield v. Fane, 507 US [1993].
[55]
 Emerson, Thomas. The System of Freedom of Expression, [1967] pp. 10-11.
[56]
 The Philippines a Century Hence, p. 62 et seq.
[57]
 United States vs. Bustos, 37 Phil. 731 (1918). See Mabini, La Revolucion Filipina
[58]
 GUEVARA, THE LAWS OF THE FIRST PHILIPPINE REPUBLIC (THE LAWS OF MALOLOS)
1898-1899, 1972, p. 107.

SEPARATE OPINION

VITUG, J.:

I share the opinion of those who continue to uphold the decision in the National
Press Club vs. Commission on Elections case that has sustained the validity of Section
11(b) of Republic Act (“R.A.”) No. 6646, otherwise also known as the Electoral Reforms
Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court in the National
Press Club case, no more than invoke anew Section 4, Article III, of the Constitution to
the effect that –
“No law shall be passed abridging the freedom of speech, of expression, or of press, on
the right of the people peaceably to assemble and petition the government for redress
of grievances.”

It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec
Resolution No. 2974 should be declared unconstitutional. These contested provisions
state:
“Sec. 11. Prohibited forms of election propaganda. – In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful;

“xxx xxx                              xxx
“b) for any newspaper, radio broadcasting or television station, other mass media, or
any person making use of the mass media to sell or give free of charge print space or
airtime for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.”

Sec. 18. Prohibited forms of election propaganda. – it is unlawful

“xxx xxx                              xxx
“e. For any radio broadcasting or television or any person making use of broadcast
media to sell or give free of charge, any air time for campaign and other political
purposes, except thru ‘COMELEC time,’ allotted to the Commission pursuant to Section
92 of the Omnibus Election Code.”

I see however, in the above provision a faithful compliance and due observance of
the language, intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:
“Sec. 4. The Commission [on Elections] may, during the election period, supervise or
regulate the enjoyment or utilization of all franchise or permits for the operation
of transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections.”
(Italics supplied)

It might be worth mentioning that Section 26, Article II, of the Constitution also states
that the “State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.” I see neither Article IX (C)(4) nor
Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of
general application, must yield to the specific demands of the Constitution. The freedom
of expression concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like fundamental rights, it is not without
limitations.
The case is not about a fight between the “rich” and the “poor” or between the
“powerful” and the “weak” in our society but it is to me a genuine attempt on the part
of Congress and the Commission on Elections to ensure that all candidates are given an
equal chance to media coverage and thereby be equally perceived as giving real life to
the candidates’ right of free expression rather than being viewed as an undue restriction
of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court to pass
upon.
 I vote to dismiss the petition.

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1.            Freedom from censorship and prior restraint

e.       MTRCB vs. ABS-CBN, January 17, 2006

489 Phil. 544

THIRD DIVISION

[ G.R. NO. 155282, January 17, 2005 ]

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), PETITIONER,

VS. ABS-CBN BROADCASTING CORPORATION AND LOREN LEGARDA, RESPONDENTS.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997
Rules of Court, as amended, filed by petitioner Movie    and Television Review and
Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and
former Senator Loren Legarda, respondents, assailing the (a) Decision dated November
18, 1997,[1] and (b) Order dated August 26, 2002[2] of the Regional Trial Court, Branch 77,
Quezon City, in Civil Case No. Q-93-16052.

The facts are undisputed.

On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired “Prosti-
tuition,” an episode of the television (TV) program “The Inside Story” produced and
hosted by respondent Legarda.  It depicted female students moonlighting as prostitutes
to enable them to pay for their tuition fees.  In the course of the program, student
prostitutes, pimps, customers, and some faculty members were interviewed.  The
Philippine Women’s University (PWU) was named as the school of some of the students
involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as
the background of the episode.

The showing of “The Inside Story” caused uproar in the PWU community.  Dr. Leticia P.
de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers
Association filed letter-complaints[3] with petitioner MTRCB.  Both complainants alleged
that the episode besmirched the name of the PWU and resulted in the harassment of
some of its female students.

Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint
with the MTRCB Investigating Committee, alleging among others, that respondents (1)
did not submit “The Inside Story” to petitioner for its review and (2) exhibited the same
without its permission, thus, violating Section 7[4] of Presidential Decree (P.D.) No.
1986[5]  and Section 3,[6] Chapter III and Section 7,[7] Chapter IV of the MTRCB Rules and
Regulations.[8]

In their answer,[9] respondents explained that the “The Inside Story” is a “public affairs
program, news documentary and socio-political editorial,” the airing of which
is protected by the constitutional provision on freedom of expression and of the
press.  Accordingly, petitioner has no power, authority and jurisdiction to impose any
form of prior restraint upon respondents.

On February 5, 1993, after hearing and submission of the parties’ memoranda, the
MTRCB Investigating Committee rendered a Decision, the decretal portion of which
reads:

“WHEREFORE, the aforementioned premises, the respondents are ordered to pay the

sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program,
subject of this case for review and approval of the MTRCB.

Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of
the ABS-CBN Channel 2 of the same category shall be submitted to the Board of Review
and Approval before showing; otherwise the Board will act accordingly.”[10]

On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a
Decision dated March 12, 1993 affirming the above ruling of its Investigating
Committee.[11]  Respondents filed a motion for reconsideration but was denied in a
Resolution dated April 14, 1993.[12]

Respondents then filed a special civil action for certiorari with the Regional Trial Court
(RTC), Branch 77, Quezon City.  It seeks to: (1) declare as unconstitutional Sections 3(b),
[13]
 3(c),[14] 3(d),[15] 4,[16] 7,[17] and 11[18] of P. D. No. 1986 and Sections 3,[19] 7,[20] and
28[21] (a) of the MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the “The
Inside Story” from the coverage of the above cited provisions; and (3) annul and set
aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993. 
Respondents averred that the above-cited provisions constitute “prior restraint” on
respondents’ exercise of freedom of expression and of the press, and, therefore,
unconstitutional.  Furthermore, the above cited provisions do not apply to the “The
Inside Story” because it falls under the category of “public affairs program, news
documentary, or socio-political editorials” governed by standards similar to those
governing newspapers.

On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the
dispositive portion of which reads:

“WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB

dated March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and  (d), 4, 7, and 11 of P.D. No.
1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program
“The Inside Story” and other similar programs, they being public affairs programs which
can be equated to newspapers; and

3. MAKING PERMANENT the Injunction against Respondents or all persons acting in

their behalf.

SO ORDERED.”

Petitioner filed a motion for reconsideration but was denied.[24]

Hence, this petition for review on  certiorari.

Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including “public affairs programs, news documentaries, or socio-political
editorials,” are subject to petitioner’s power of review under Section 3 (b) of P.D. No.
1986 and pursuant    to this Court’s ruling in Iglesia ni Cristo vs. Court of Appeals;
[25]
 second, television programs are more accessible to the public than newspapers, thus,
the liberal regulation of the latter cannot apply to the former; third, petitioner’s power
to review television programs under Section 3(b) of P. D. No. 1986 does not amount to
“prior restraint;” and fourth, Section 3(b) of  P. D. No. 1986 does not violate
respondents’ constitutional freedom of expression and of the press.

Respondents take the opposite stance.

The issue for our resolution is whether the MTRCB has the power or authority to review
the “The Inside Story” prior to its exhibition or broadcast by television.
The petition is impressed with merit.

The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986,
partly reproduced as follows:

“SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers
and duties:

x    x    x                    x    x    x

b) To screen, review and examine all motion pictures as herein defined, television

programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in the
Philippines, and in the latter case, whether they be for local viewing or for export.

c) To approve or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:

x  x  x

d) To supervise, regulate, and grant, deny or cancel, permits for the importation,
exportation, production, copying, distribution, sale, lease, exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to the end
and that no such pictures, programs and materials as are determined by the BOARD to
be objectionable in accordance with paragraph (c) hereof shall be imported, exported,
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;

x    x    x                    x    x    x.”

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the
power to review the television program “The Inside Story.”  The task is not Herculean
because it merely resurrects this Court En Banc’s ruling in Iglesia ni Cristo vs. Court of
Appeals.[26] There, the Iglesia ni Cristo sought exception from petitioner’s review power
contending that the term “television programs” under Sec. 3 (b) does not include
“religious programs” which are protected under Section 5, Article III of the Constitution.
[27]
 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives
petitioner “the power to screen, review and examine “all television programs,” 
emphasizing the phrase “all television programs,” thus:

“The law gives the Board the power to screen, review and examine all ‘television
programs.’  By the clear terms of the law, the Board has the power to ‘approve, delete x
x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television
programs x x x.’   The law also directs the Board to apply ‘contemporary Filipino cultural
values as standard’ to determine those which are objectionable for being ‘immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime.’”

Settled is the rule in statutory construction that where the law does not make any
exception, courts may not except something therefrom, unless there is compelling
reason apparent in the law to justify it.[28] Ubi lex non distinguit nec distinguere
debemos.   Thus, when the law says “all television programs,” the word “all” covers all
television programs, whether religious, public affairs, news documentary, etc.[29] The
principle assumes that the legislative body made no qualification in the use of general
word or expression.[30]

It then follows that since “The Inside Story” is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.

Here, respondents sought exemption from the coverage of the term “television
programs” on the ground that the “The Inside Story” is a “public affairs program, news
documentary and socio-political editorial” protected under Section 4,[31] Article III of the
Constitution.  Albeit, respondent’s basis is not freedom of religion, as in Iglesia ni Cristo,
[32]
 but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies
squarely to the instant issue.  It is significant to note that in Iglesia ni Cristo, this Court
declared that freedom of religion has been accorded a preferred status by the framers
of our fundamental laws, past and present, “designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs x x x.”  Yet
despite the fact that freedom of religion has been accorded a preferred status, still this
Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review
power.

Respondents claim that the showing of “The Inside Story” is protected by the
constitutional provision on freedom of speech and of the press.  However, there has
been no declaration at all by the framers of the Constitution that freedom of expression
and of the press has a preferred status.

If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction
and review power of petitioner MTRCB, with more reason, there is no justification to
exempt therefrom “The Inside Story” which, according to respondents, is protected by
the constitutional provision on freedom of expression and of the press, a freedom
bearing no preferred status.

The only exceptions from the MTRCB’s power of review are those expressly mentioned
in Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by
the Philippine Government and/or its departments and agencies, and (2) newsreels. 
Thus:

“SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or

entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place or
by television within the Philippines any motion picture, television program or publicity
material, including trailers, and stills for lobby displays in connection with motion
pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or
to print or cause to be printed on any motion picture to be exhibited in any theater or
public place or by television a label or notice showing the same to have been officially
passed by the BOARD when the same has not been previously authorized, except
motion pictures, television programs or publicity material imprinted or exhibited by
the Philippine Government and/or its departments and agencies, and newsreels.”

Still in a desperate attempt to be exempted, respondents contend that the “The Inside
Story” falls under the category of newsreels.

Their contention is unpersuasive.

P. D. No. 1986 does not define “newsreels.”  Webster’s dictionary defines newsreels as
short motion picture films portraying or dealing with current events.[33] A glance at
actual samples of newsreels shows that they are mostly reenactments of events that
had already happened.  Some concrete examples are those of Dziga Vertov’s
Russian Kino-Pravda newsreel series (Kino-Pravda means literally “film-truth,” a term
that was later translated literally into the French cinema verite) and Frank Capra’s Why
We Fight series.[34] Apparently, newsreels are straight presentation of events. They are
depiction of “actualities.” Correspondingly, the MTRCB Rules and
Regulations[35] implementing P. D. No. 1986 define newsreels as “straight news
reporting, as distinguished from news analyses, commentaries and opinions.  Talk
shows on a given issue are not considered newsreels.”[36] Clearly, the “The Inside Story”
cannot be considered a newsreel.  It is more of a public affairs program which is
described as a variety of news treatment; a cross between pure television news and
news-related commentaries, analysis and/or exchange of opinions.[37] Certainly, such
kind of program is within petitioner’s review power.

It bears stressing that the sole issue here is whether petitioner MTRCB has authority to
review “The Inside Story.”  Clearly, we are not called upon to determine whether
petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that
no law shall be passed abridging the freedom of speech, of oppression or the press. 
Petitioner did not disapprove or ban the showing of the program.  Neither did it cancel
respondents’ permit.  Respondents were merely penalized for their failure to submit to
petitioner “The Inside Story” for its review and approval.  Therefore, we need not
resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
Regulations specified by respondents contravene the Constitution.

Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P.
D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are
unconstitutional.  It is settled that no question involving the constitutionality or validity
of a law or governmental act may be heard and decided by the court unless there is
compliance with the legal requisites for judicial inquiry, namely: (1) that the question
must be raised by the proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest possible opportunity;
and, (4) that the decision on the constitutional or legal question must be necessary to
the determination of the case itself.[38]

WHEREFORE, the instant petition is GRANTED.  The assailed RTC Decision dated
November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED.  The
Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED.  Costs against
respondents.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

[1]
 Penned by Judge Normandie B. Pizarro, Rollo at 73-81.

[2]
 Id. at 86-91.

[3]
 Dated October 28, 1991

[4]
 “SECTION 7. Unauthorized showing or exhibition. – It shall be unlawful for any person
or entity to exhibit or cause to be exhibited in any moviehouse, theater or public place
or  television within the Philippines any motion picture, television program or publicity
material, including trailers, and stills for lobby displays in connection with motion
pictures, not duly authorized by the owner or is assignee and passed by the BOARD; or
to print or cause to be printed on any motion picture to be exhibited in any theater or
public place or by television a label or notice showing the same to have been officially
passed by the BOARD when the same has not been previously authorized, except
motion pictures, television programs or publicity material imprinted or exhibited by
the Philippine Government and/or its  departments and agencies, and newsreels.”
[5]
 “Creating the Movie and Television Review and Classification Board.”

[6]
 “SECTION 3. Matters subject to review – All motion pictures, television programs and
publicity materials, as defined in Chapter 1 hereof, whether these be for theatrical or
non-theatrical distribution, for television broadcast or general viewing, imported or
produced in the Philippines, and in the latter case, whether they be for local viewing or
for export, shall be subject to review by the BOARD before they are exported,
imported, copied, distributed, sold, leased, exhibited or broadcast by television;”

[7]
 “SECTION 7. REQUIREMENT OF PRIOR REVIEW – No motion picture, television
program or related publicity material shall be imported, exported, produced, copied,
distributed, sold, leased, exhibited or broadcast by television without prior permit
issued by the BOARD after review of the motion picture, television program or publicity
material.”

[8]
 Approved on July 27, 1993.

[9]
 Dated November 18, 1991.

[10]
 Annex “D” at 1, Petition, Rollo at 92.

[11]
 Rollo at 92-99.

[12]
 Id. at 100-106.

[13]
 b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in the
Philippines, and in the latter case, whether they be for local viewing or for export;

[14]
 c) To approve or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the board
applying contemporary Filipino cultural values as standard, are objectionable for being
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:

[15]
 d) To supervise, regulate, and grant, deny or cancel, permits for the importation,
exportation, production, copying, distribution, sale, lease, exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to the end
that no such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be imported, exported,
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;

[16]
 “SECTION 4. Decision. – The decision of the BOARD either approving or
disapproving for exhibition in the Philippines a motion picture, television program, still
and other pictorial advertisement submitted to it for examination and review must be
rendered within a period of ten (10) days which shall be counted from the date of
receipt by the BOARD of an application for the purpose, together with motion picture,
television program, still or other pictorial advertisement to be reviewed.”

[17]
 Supra.

[18]
 “SECTION 11. Penalty. – Any person who violates the provisions of this Decree
and/or the implementing rules and regulations issued by the BOARD, shall, upon
conviction, be punished by a mandatory penalty of three (3) months and one day to one
(1) year imprisonment plus a fine of not less than fifty thousand pesos.  The penalty shall
apply whether the person shall have committed the violation either as principal,
accomplice or accessory.  If the offender is an alien, he shall be deported immediately. 
The license to operate the moviehouse, theater, or television station shall also be
revoked.  Should the offense be committed by a juridical person, the chairman, the
president, secretary, treasurer, or the partner responsible therefore, shall be the
persons penalized.”

[19]
 Supra.

[20]
 “SECTION 7. REQUIREMENT OF PRIOR REVIEW. – No motion picture, television
program or related publicity material shall be imported, exported, produced, copied,
distributed, sold, leased, exhibited or broadcast by television without prior permit
issued by the BOARD after review of the motion picture, television program or publicity
material.”

[21]
 “SECTION 28. OFFENSES AND ADMINISTRATIVE PENALTIES – Without prejudice to
the institution of appropriate criminal action, violations of the laws and rules governing
motion pictures, television programs, and related publicity materials shall be
administratively penalized with suspension or cancellation of permits and licenses
issued by the BOARD, depending on the gravity of the offense or in lieu thereof, the
Chairman of the BOARD or the Hearing and Adjudication Committee, in his or its
discretion, allow the payment of an administrative fine by the guilty party.   The
imposition of the administrative penalties for violation of Presidential Decree 1986 of its
rules shall be in accordance with the table of penalties duly promulgated by the
BOARD.”
[22]
 Approved on December 19, 1985.

[23]
 Rollo at 73-81.

[24]
 RTC Order dated August 26, 2002, Rollo at 82-85.

[25]
 G.R. No. 119673, July 26, 1996, 259 SCRA 529.

[26]
 Supra.

[27]
 “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.”

[28]
  Tolentino vs. Catoy, 82 Phil. 300 (1948).

[29]
 See Olfato vs. Commission on Elections, G.R. No. 52749, March 31, 1981, 103 SCRA
741.

[30]
 Agpalo, Statutory Construction, Third Edition, 1995, at 153.

[31]
 “SECTION 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.”

[32]
  Supra.

[33]
 Merriam Webster’s Third New International Dictionary (1993 Phil. Copyright).

[34]
 Documentary Film, Wikipedia Encyclopedia, December 21, 2004, http://
en.wikipedia.org/wiki/Documentary_film.

The newsreel tradition is an important tradition in documentary film; newsreels were

also sometimes staged but were usually reenactments of events that had already
happened, not attempts to steer events as they were in the process of happening. For
instance, much of the battle footage from the early 20th century was staged – the
cameramen would usually arrive on site after a major battle and reenact scenes to film
them.

In the Kino-Pravda series, Vertov focused on everyday experiences, eschewing

bourgeois concerns and filming marketplaces, bars, and schools instead, sometimes
with a hidden camera, without asking permission first.  The stories were typically
descriptive, not narrative, and included vignettes and exposes, showing for instance the
renovation of a trolley system, the organization of farmers into communes, and the trial
of Social Revolutionaries; one story shows starvation in the nascent Marxist state.
Vertov’s driving vision was to capture “film-truth” – that is, fragments of actuality, which
when organized together, have a deeper truth that cannot be seen with the naked eye.
(Dziga Vertov, Wikipedia Encyclopedia, December 21, 2004, http://
en.wikipedia.org/wiki/Dziga-Vertov.)

[35]
 Promulgated on August 22, 1993.

[36]
 Section 1(m), Chapter I, 1993 Implementing Rules and Regulations.

[37]
 TSN, September 2, 1994 at 13-14; see Rollo at 159.

[38]
Macasiano vs. National Housing Authority, G. R. No. 107921, July 1, 1993, 224 SCRA
236.

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1.            Freedom from censorship and prior restraint
f.        ABS-CBN vs. COMELEC, January 28, 2000

380 Phil. 780

EN BANC

[ G.R. No. 133486, January 28, 2000 ]

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

respondent.

DECISION

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 Comelec en 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 Paño, 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), aff’d 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]
 Petitioner’s Memorandum, p. 15.
 SEPARATE OPINION

VITUG, J.:

The instant petition, now technically moot, presents issues so significant that a slight
change of circumstances can have a decisive effect on, and possibly spell a difference in,
the final outcome of the case. I am not inclined to take the case in an academic fashion
and pass upon the views expressed by either party in preemptive judgment.

While I understand what the ponencia is saying quite laudably, I also appreciate, upon
the other hand, the concern of the Commission on Elections, i.e., that the conduct of
exit polls can have some adverse effects on the need to preserve the sanctity of the
ballot. The Commission performs an indispensable task of ensuring free, honest, and
orderly elections and of guarding against any frustration of the true will of the people.
Expectedly, it utilizes all means available within its power and authority to prevent the
electoral process from being manipulated and rendered an absurdity. Like my
colleagues, I greatly prize the freedom of expression but, so also, I cherish no less the
right of the people to express their will by means of the ballot. In any case, I must accept
the reality that the right to information and free speech is not illimitable and immune
from the valid exercise of an ever demanding and pervasive police power. Whether any
kind of restraint should be upheld or declared invalid in the proper balancing of interest
is one that must be resolved at any given moment, not on perceived circumstances, but
on prevailing facts.

Neither of the advocations proffered by the parties in this instance, I believe, should be
foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

DISSENTING OPINION

KAPUNAN, J.:

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is
technically moot. Since the Comelec has not declared exit polls to be illegal and neither
did the petitioner present its methodology or system of conducting the exit polls to the
poll body, the nullification of the Comelec's questioned resolution is bereft of empirical
basis. The decision of this Court constitutes a mere academic exercise in view of the
premature nature of the issues and the lack of "concreteness" of the controversy. I wish,
however, to express my thoughts on a few material points.

The majority opinion cites the general rule that any restrictions to freedom of
expression would be burdened with a presumption of invalidity and should be greeted
with "furrowed brows."[1] While this has been the traditional approach, this rule does
not apply where, as in this case, the Comelec exercised its Constitutional functions of
securing the secrecy and sanctity of the ballots and ensuring the integrity of the
elections.. Thus, Mr. Justice Feliciano in National Press (NPC) v. Comelec[2] wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of supervisory or regulatory authority on the
part of the COMELEC for the purpose of securing equal opportunity among candidates
for political office, although such supervision or regulation may result in some limitation
of the right of free speech and free press. For supervision or regulation of the
operations of media enterprises is scarcely conceivable without such accompanying
limitation. Thus, the applicable rule is the general, time honored one - that a statute is
presumed to be constitutional and that the party asserting its unconstitutionality must
discharge the burden of clearly and convincingly proving that assertion.[3]

The NPC decision holds that if the right to free speech collides with a norm of
constitutional stature,[4] the rule on heavy presumption of invalidity does not apply.

Our Constitution mandates the Comelec to enforce and administer laws and regulations
relative to the conduct of elections and to secure the secrecy and sanctity of the ballots
to ensure orderly, honest, credible and peaceful elections.[5] This Constitutional
provision effectively displaces the general presumption of invalidity in favor of the
presumption that Comelec acted in the exercise of its constitutionally mandated
powers. If no presumption of invalidity arises, I see no occasion for the application of
the "clear and present danger test." As this Court, through Mr. Justice Mendoza,
succinctly observed:

x x x the clear-and-present danger test is not, however, a sovereign remedy for all free
speech problems. As has been pointed out by a thoughtful student of constitutional law,
it was originally formulated for the criminal law and only later appropriated for free
speech cases. For the criminal law is necessarily concerned with the line at which
innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is
inappropriate as a test for determining the constitutional validity of law which, like
§11(b) of R.A. No. 6646, are not concerned with the content of political ads but only
with their incidents. To apply the clear-and-present danger test to such regulatory
measures would be like using a sledgehammer to drive a nail when a regular hammer is
all that is needed.[6]

On the matter of methodology in conducting polls, petitioner gave assurance that the
exit poll results will only be made public a day after the elections, in order to allay fears
of "trending," "bandwagon-effect" or disruption. This offers little comfort considering
the state of our country's electoral system. Unlike in other countries where voting and
counting are computerized, our elections are characterized by snail-paced counting. It is
not infrequent that postponement, failure or annulment of elections occur in some
areas designated as election hot spots.[7] Such being the case, exit poll results made
public after the day of voting in the regular elections but before the conduct of special
elections in these areas may potentially pose the danger of "trending," "bandwagon-
effect" and disruption of elections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of

discretion in issuing the assailed temporary restraining order stopping petitioner from
conducting exit polls. I, therefore, vote to DENY the petition.

[1]
 Iglesia ni Cristo vs. MTRCB, 259 SCRA 529 (1996)

[2]
 207 SCRA 1 (1992)

[3]
 Ibid., citing as examples: Abbas vs .Commission on Elections, 179 SCRA 287
(1989); People vs. Dacuycuy, 173 SCRA 90 (1989); Heirs of Ordera vs. Reyes, 125 SCRA
380 (1983) (sic); Peralta vs. Commission on Elections, 82 SCRA 30 (1978); Salas vs.
Jarencio, 46 SCRA 734 (1972)

[4]
 The norm embodied in article IX (C) (4) of the Constitution in the NPC case aims to
equalize opportunity, time and space, and the right to reply in the use of media for
campaign purposes.

[5]
 CONST. art V, sec. 2; art IX (C), sec. 2 (1)

[6]
 Osmeña vs .Comelec, 288 SCRA 447 (1998)

[7]
 BATAS PAMBANSA BLG. 881 (as amended), secs. 5 & 6 and R.A. No. 7166, sec. 4.
These situations are replete with cases; see for e.g. Hassan vs. Comelec, 264 SCRA 125
(1996); Sanchez vs. Comelec, 145 SCRA 454 (1982); Mangudadatu vs. Comelec, G.R. No.
86053, May 4, 1989; Barabu vs .Comelec, G.R. No. 78820, May 17, 1988.
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1.            Freedom from censorship and prior restraint

g.       SWS vs. COMELEC, May 5, 2001

409 Phil. 571

EN BANC

[ G.R. No. 147571, May 05, 2001 ]

SOCIAL WEATHER STATIONS, INCORPORATED AND KAMAHALAN  PUBLISHING

CORPORATION, DOING BUSINESS AS MANILA STANDARD, PETITIONERS, VS.
COMMISSION ON ELECTIONS, RESPONDENT.

DECISION

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof.  On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of general circulation, which
features newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters' preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as "Survey").

To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of the COMELEC
enjoins ¾

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period
of the elections both at the national and local levels and release to the media the results
of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results
up to the last day of the elections on May 14, 2001.

Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint.  They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without causing confusion
among the voters and that there is neither empirical nor historical evidence to support
the conclusion that there is an immediate and inevitable danger to the voting process
posed by election surveys.  They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied
access to the results of election surveys which are relatively objective.

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from  manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political  advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was
upheld by this Court.  In contrast, according to respondent, it states that the prohibition
in §5.4 of R.A. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press
by prohibiting the publication of election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a national election and
seven (7) days before a local election. Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure  is vitiated by
a weighty presumption of invalidity.[2] Indeed, "any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional
validity. . . . The Government `thus carries a heavy burden of showing justification for
the enforcement of such restraint.'"[3] There is thus a reversal of the normal
presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for
the operation of media of communication, no presumption of invalidity attaches to a
measure like §5.4.  For as we have pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to
ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities for "public information
campaigns and forums among candidates."[4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents.  He rejects as inappropriate the test of clear and
present danger for determining the validity of §5.4. Indeed, as has been pointed out in
Osmeña v. COMELEC,[6] this test was originally formulated for the criminal law and only
later appropriated for free speech cases.  Hence, while it may be useful for determining
the validity of laws dealing with inciting to sedition or incendiary speech, it may not be
adequate for such regulations as the one in question.  For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing free speech,
which is not the case of §5.4 and similar regulations.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing

and balancing the circumstances to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the regulation of the free
enjoyment of the rights" (page 7). After canvassing the reasons for the
prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon
effect to favor candidates, misinformation, the "junking" of weak and "losing"
candidates by their parties, and the form of election cheating called "dagdag-bawas"
and invoking the State's power to supervise media of information during the election
period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should
outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C,
§4.  As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time,
and space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates."  Hence the validity of the ban
on media advertising. It is noteworthy that R.A. No. 9006, §14  has lifted the ban and
now allows candidates to advertise their candidacies in print and broadcast media.
Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual
bombasts and hyperbolic claims made during the campaigns can confuse voters and
thus debase the electoral process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves freedom
of speech, expression, and the press with little protection. For anyone who can bring a
plausible justification forward can easily show a rational connection between the statute
and a legitimate governmental purpose.  In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales  v.  COMELEC,[7] from which the dissent in
this case takes its cue, was a strong one resulting in his conclusion that §50-B of R.A. No.
4880, which limited the period of election campaign and partisan political activity, was
an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other
countries ¾ 78, according to the Solicitor General, while the dissent cites 28 ¾ which
similarly impose restrictions on the publication of election surveys.  At best this survey is
inconclusive.  It is noteworthy that in the United States no restriction on the publication
of election survey results exists.  It cannot be argued that this is because the United
States is a mature democracy.  Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not restrict
the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4?
The United States Supreme Court, through Chief Justice Warren, held in United States v.
O'Brien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional

power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the furtherance of that
interest.[8]

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

Under this test, even if a law furthers an important or substantial governmental interest,
it should be invalidated if such governmental interest is "not unrelated to the
suppression of free expression." Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless be invalidated if the restriction
on freedom of expression is greater than is necessary to achieve the governmental
purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

First.  Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the causal connection
of expression to the asserted governmental interest makes such interest "not unrelated
to the suppression of free expression." By prohibiting the publication of election survey
results because of the possibility that such publication might undermine the integrity of
the election, §5.4 actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists,
radio and TV commentators, armchair theorists, and other opinion makers.  In effect,
§5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal
opinion to statistical results. The constitutional guarantee of freedom of expression
means that "the government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content."[11] The inhibition of speech should
be upheld only if the expression falls within one of the few unprotected categories dealt
with in Chaplinsky  v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem. 
These include the lewd and obscene, the profane, the libelous, and the insulting or
`fighting' words ¾ those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality.

Nor is there justification for the prior restraint which §5.4 lays on protected speech. 
In Near  v. Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question but
that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.  On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements
to acts of violence and the overthrow by force of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4
cannot be justified on the ground that it is only for a limited period and is only
incidental. The prohibition may be for a limited time, but the curtailment of the right of
expression is direct, absolute, and substantial.  It constitutes a total suppression of a
category of speech and is not made less so because it is only for a period of fifteen (15)
days immediately before a national election and seven (7) days  immediately before a
local election.

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to
be valid in National Press Club v. COMELEC[14] and Osmeña v.  COMELEC.[15] For the ban
imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional
provision,[16] but it also provided an alternative so that, as this Court pointed out
in Osmeña, there was actually no ban but only a substitution of media advertisements
by the COMELEC space and COMELEC hour.

Second.  Even if the governmental interest sought to be promoted is unrelated to the

suppression of speech and the resulting restriction of free expression is only incidental,
§5.4 nonetheless fails to meet criterion [4] of the O'Brien  test, namely, that the
restriction be not greater than is necessary to further the governmental interest.  As
already stated, §5.4 aims at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to
the form of election cheating called "dagdag-bawas."  Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by punishing unlawful acts,
rather than speech because of apprehension that such speech creates the danger of
such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is given the
power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to
this power of the COMELEC, it can confiscate bogus survey results calculated to mislead
voters. Candidates can have their own surveys conducted. No right of reply can be
invoked by others.  No principle of equality is involved. It is a free market to which each
candidate brings his ideas.  As for the purpose of the law to prevent bandwagon effects,
it is doubtful whether the Government can deal with this natural-enough tendency of
some voters. Some voters want to be identified with the "winners." Some are
susceptible to the herd mentality. Can these be legitimately prohibited by suppressing
the publication of survey results which are a form of expression?  It has been held that
"[mere] legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions."[18]

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint
on the freedom of expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than the
suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution,
its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. 
The flaws in this argument is that it assumes that its Resolution 3636, dated March 1,
2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, §7.  Indeed,
counsel for COMELEC maintains that Resolution 3636 was "rendered" by the
Commission.  However, the Resolution does not purport to adjudicate the right of any
party.  It is not an exercise by the COMELEC of its adjudicatory power to settle the claims
of parties.  To the contrary, Resolution 3636 clearly states that it is promulgated to
implement the provisions of R.A. No. 9006.  Hence, there is no basis for the COMELEC's
claim that this petition for prohibition is inappropriate.  Prohibition has been found
appropriate for testing the constitutionality of various election laws, rules, and
regulations.[19]
WHEREFORE, the petition for prohibition is GRANTED and §5.4 of R.A. No. 9006 and
§24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared
unconstitutional.

SO ORDERED.

Davide, Jr., C.J., Vitug, and Gonzaga-Reyes, JJ., concur.

Bellosillo, Pardo,Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissent of J.
Kapunan.
Melo, Puno, and Panganiban, JJ., see concurring opinion.
Kapunan, J., see dissenting opinion.
Quisumbing, Buena, and De Leon, Jr., JJ., on leave.

[1]
 207 SCRA 1 (1992).

[2]
 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).

[3]
 New York Times v. United States, 403 U.S. 713,  714, 29 L.Ed. 2d 822, 824 (1971).

[4]
 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmeña v. COMELEC, 288 SCRA
447 (1998).

[5]
 National Press Club v. COMELEC, supra at 9.

[6]
 288 SCRA 447 (1998).

[7]
 27 SCRA 835, 888 (1969)  (Castro, J., concurring and dissenting).

[8]
 391 U.S. 367, 377,  20 L.Ed.2d 672, 680 (1968) (bracketed numbers added).

[9]
 G. Gunther & K. Sullivan, Constitutional Law 1217 (13th ed. 1997).

[10]
 Adiong v. COMELEC, 207 SCRA 712 (1992); Osmeña v. COMELEC, supra.

[11]
 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L.Ed.2d 212, 216 (1972).

[12]
 315 U.S. 568, 571-572, 86 L.Ed. 1031, 1035 (1942). See  John Hart Ely, Flag
Desecration: A Case Study in the Roles of Categorization and Balancing in First
Amendment Analysis,  88 Harv. L. Rev. 1482, 1497 (1975).

[13]
 283 U.S. 697, 715-16, 75 L.Ed. 1357, 1367  (1931); See also  New York Times v. United
States, 403 U.S. 7-13, 29 L.Ed.2d 822 (1971).
[14]
 Supra.

[15]
 Supra.

[16]
 Art. IX-C, §4.

[17]
 Bk. V, Tit. I, Subtit. C, Ch. 1, §3 (1) (emphasis added).

[18]
 Schneider v. Irvington, 308 U.S. 147, 161, 84 L.Ed. 155 (1939).

[19]
 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzales v. COMELEC, 27 SCRA
835 (1969).

CONCURRING OPINION

MELO, J.:

Petitioners Social Weather stations, Inc. and Kamahalan Publishing Corporation,

publisher of Manila Standard, have brought this action to declare as unconstitutional
Section 5.4 of Republic Act No. 9006. Petitioners claim that said provision, which
prohibits the publication of surveys affecting national candidates fifteen days before an
election, and surveys affecting local candidates seven days before an election,
constitutes prior restraint on the exercise of the freedom of speech without any clear
and present danger to justify such restraint.

Respondent Commission on Elections, on the other hand, justifies the restrictions on the
ground that the same is necessary to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys, it being claimed that the
indiscriminate publication of surveys up to election day led to misinformation, junking of
weak and losing candidates by parties, and the creation of a bandwagon effect in favor
of certain candidates.

The majority opinion, written by Mr. Justice Mendoza concludes that the disputed
provision constitutes an unconstitutional abridgment of the freedom of speech,
expression and the press.

I have to agree.

Freedom of speech has been defined as the liberty to know, to utter, and to argue freely
according to conscience, above all liberties.  It includes not only the right to express
one's views, but also other cognate rights relevant to the free communication of ideas,
including the right to be informed on matters of public concern. Indeed, the principle of
free political discussion is one of the touchstones of democracy, it being a guarantee
that the people will be kept informed at all times, thereby ensuring their intelligent
discharge of the responsibilities of sovereignty.

However, despite the primacy of free expression in the hierarchy of fundamental civil
liberties, the same is not absolute.  It can be validly regulated.  Regulation must,
however, be reasonable.  It must be shown that the interest of the public, generally, as
distinguished from that of a particular class, requires such regulation. Second, it must
appear that the means used are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.

The provision in dispute plainly constitute prior restraint on the freedom of expression. 
As aptly stated by the noted constitutionalist Fr. Bernas, "any system of prior restraint of
expression comes to this court bearing a heavy presumption against its constitutional
validity, with the Government carrying a heavy burden of showing justification for the
enforcement of such a restraint" (The Constitution of the Republic of the Philippines:  a
Commentary, p. 142).

Any act that restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows.  It is the burden of the respondent... to overthrow this
presumption.  If it fails to discharge this burden, its act of censorship will be struck down
(Iglesia ni Kristo vs. CA, 259 SCRA 529 [1996].

Respondent COMELEC has fallen short of the required effort to overthrow this
presumption, it having failed to show that the means used by Section 5.4 of Republic Act
No. 9006 are reasonably necessary for the accomplishment of the purpose, and that the
same are not unduly oppressive upon individuals.

It bears emphasizing that Section 5.4 limits itself to prohibiting the publication of
surveys affecting national candidates fifteen days before an election, and surveys
affecting local candidates seven days before an election.  It does not restrict reporting
by tri-media of the merits or demerits of national and local candidates and their chances
at the polls.  Neither does it prohibit commentaries by radio broadcasters and TV
anchors, the expression of opinions by columnist and editors of newspapers.  In fact, the
provision in dispute does not prohibit paid hacks from trumpeting the qualifications of
their candidates.  In fine, while survey organizations who employ scientific methods and
engage personnel trained in the statistical sciences to determine socio-political trends,
are barred from publishing their results within the specified periods, any two-bit
scribbler masquerading as a legitimate journalist can write about the purported strong
showing of his candidate without any prohibition or restriction.  The means used to
regulate free expression is thus, not reasonable necessary for the accomplishment of
the purpose.  Worse, it is unduly oppressive upon survey organizations, which have
been singled out for suppression, on the mere apprehension that their survey results
will lead to misinformation, "junking," or contrived bandwagon effect.

Admittedly, not all organizations which generate surveys are legitimate.  Some publish
surveys which are, at best, disingenuous.  Yet, the possibility of abuse does not
authorize government to restrict the activities of survey organizations at the expense of
the freedom of expression. The very foundation of democracy is, as stated in Abrams vs.
U.S. (250 US 610), grounded on the belief

[T]hat the ultimate good desired is better reached by a free trade in ideas-that the best
test of truth is the power of the thought to get itself accepted in the competition of the
market; and that truth is the only ground upon which their wishes can be safely carried
out.  That, at any rate, is the theory of our Constitution.  It is an experiment, as all life is
an experiment.  Every year, if not every day, we have to wager our salvation upon some
prophecy based upon imperfect knowledge.  While that experiment is part of our
system I think that we should be eternally vigilant against attempts to check the
expression of opinions that we loathe and believe to be fraught with death, unless they
so imminently threaten immediate interference with the lawful and pressing purposes
of the law that an immediate check is required to save the country.

To reiterate, the prohibition against surveys within the specified period is a prior and
unreasonable restraint upon the freedom of expression which is not reasonable
necessary to achieve the purpose of clean, honest, orderly and peaceful elections.

For the foregoing reasons, I vote to grant the petition for prohibition and to declare
Section 5.4 of R.A. No. 9006 unconstitutional.

CONCURRING OPINION

PUNO, J.:

Petitioners seek to declare as unconstitutional Section 5.4 of R.A. No. 9006, otherwise
known as the "Fair Election Act," which states:

Sec. 5.4. Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published seven
(7) days before an election."[1]

"Surveys" refer to the "measurement of opinions and perceptions of the voters as

regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters' preference for candidates or
publicly discussed issues during the campaign period xxx."[2] Violation of the prohibition
is punishable as an election offense under section 264 of B.P. 881, otherwise known as
the Omnibus Election Code.[3]

Petitioners assail the law as constitutionally infirmed on the ground that it is an

abridgment of their freedom of speech and of the press.[4] I concur with the majority
opinion penned by Mr. Justice Mendoza which is protective of speech and file this
separate opinion by way of supplement.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights.[5] The rationale is that the
preservation of other rights depend on how well we protect our freedom of speech and
of the press.  In view of the preferred status of freedom of speech and of the press,
several tests have been enunciated to protect it.  We have the dangerous tendency test
which now commands little following.  We have the clear and present danger test, the
most libertarian test, formulated by Justice Holmes in Schenk v. United States,
[6]
  viz: "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 evil that the State has a right to prevent." In Gonzales v.
COMELEC,[7]  Mr. Chief Justice Fernando explained that "the term clear seems to point to
a causal connection with the danger of the substantive evil arising from the utterance
questioned.  Present refers to the time element.  It used to be identified with imminent
and immediate danger.  The danger must not only be probable but very likely
inevitable."  We have the various balancing tests typified by the Obrien test,[8] to wit:

"[A] government regulation is sufficiently justified [1] if it is within the constitutional

power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the furtherance of that
interest."

All of these tests have their own criticisms but I need not express any preference for any
of these tests to resolve the case at bar, for regardless of the test used, the assailed
provision is void on its face and patently unconstitutional.

The provision in question is unconstitutional because it constitutes a clear prior

restraint on petitioners' freedom of speech and of the press.  I like to stress on the
prohibition against prior restraint for two reasons: (1) a historical study of human rights
will show that it is prior restraint that gave rise to freedom of speech and of the press;
and (2) there is a growing tendency, as noted by legal observers, for governments to
manipulate the free market of ideas in the guise of merely regulating the time, manner
and place of exercising freedom of speech and of the press.  The tendency appears in
various masks.  One of them is thru prior restraint or thru subsequent punishment of
acts regulating the exercise of freedom of speech and of the press.

The invention of printing in the fifteenth century revolutionized the communication of

ideas.  Soon it dawned on the temporal and spiritual authorities that printing should be
controlled and thus prior restraint on freedom of speech and of the press was born.[9] In
1501, Pope Alexander VI issued a Bull banning unlicensed printing.  In England, printing
became a monopoly and was strictly dispensed and controlled by the Crown.  It was
only in 1695 that the House of Commons declined to reenact its licensing statute. [10] In
the 18th century, however, the right of the press against prior licensing gained the
important status of a natural right in England.[11] In 1791, The First Amendment to the
US Constitution, prohibiting the abridgement of freedom of speech and of the press,
was ratified by the States.  Undoubtedly, the First Amendment is a bar against any prior
restraint, especially the classic form of licensing by government authorities.  Thus, in the
United States, the prohibition was elevated to a constitutional principle.  In 1931, in
the leading case of Near v. Minnessota,[12] the US Supreme Court, speaking thru Mr.
Chief Justice Hughes expressly ruled that "xxx liberty of the press, historically considered
and taken up by the Federal Constitution, has meant, principally although not
exclusively, immunity from previous restraints or censorship." Our Constitutions of
1935, 1973, and 1987 guaranteed freedom of speech and of the press and undeniably,
we adopted the US model and its rationale.  I therefore emphasize that prior restraints
on freedom of speech and of the press should be given the strictest of scrutiny in light of
their inherent and invasive impact.

In the case at bar, the law bans publication of surveys affecting national candidates 15
days before an election and surveys affecting local candidates 7 days before an
election.  Violation of the ban carries a criminal sanction.  This is pure and simple prior
restraint on the communication and free flow of ideas which should be made available
to voters before they exercise their right of suffrage, the core of their political
sovereignty.  Prior restraint can be justified only on the narrowest of ground like
national security.  The prior restraint in the case at bar is not based on compelling
reasons in the category of national security and hence is intolerable for government
should not be encouraged to take any step to control the subject matter of
speech, otherwise it will have the dangerous power to manipulate the form and shape
of thoughts that will compete in the market of ideas.  In the free market of ideas,
government is bound to follow the laissez faire policy to the maximum and not the
paternalistic policy of government knows best.

The provision in question is also void for its overbreadth. The overbreadth doctrine
prohibits government from achieving its purpose by "means that sweep unnecessarily
broadly, reaching constitutionally protected as well as  unprotected activity."[13] Stated
otherwise, "the esence of overbreadth is that government has gone too far: its
legitimate interest can be satisfied without reaching so broadly in to the area of
protected freedom."[14]

In the case at bar, the prohibited surveys are all inclusive. They include "measurement
of opinions and perceptions of the voters as regards a candidate's popularity,
qualification, platforms or a matter of public discussion in relation to the
election, including voter's preference for candidates or publicly discussed issues during
the campaign period xxx." Clearly, the provision bans not only popularity surveys which
show the winning and losing candidates but all "measurement of opinions and
perceptions of the voters as regards a candidate's xxx qualifications, platforms or a
matter of public discussion in relation to the election xxx." The inhibitory effect of this
ban on free speech and the free flow of information which voters need to guide their
choice of candidates is too much.  Indeed, the ban does not distinguish between biased
and unbiased surveys or between surveys conducted with scientific accuracy and
surveys done sloppily or between surveys that help enlighten voters in exercising their
right of suffrage and surveys that mislead.  Petitioner Social Weather Stations, Inc. is one
of our more reliable private non-stock, non-profit social research institutions with a no-
nonsense record.  Yet, the provision in question, because of its overbreadth, will bar
petitioner from making its useful pre-election surveys.  Certainly, there are less drastic
means which government can utilize to achieve its objective of protecting voters from
false, misleading and unfair surveys.

I vote to grant the petition.

[1]
 See also section 24 (H) of COMELEC Resolution No. 3636 implementing R.A. No. 9006.

[2]
 Ibid., section 1 (9) (e).

[3]
 See Section 13 of R.A. No. 9006.

[4]
 See section 4 of Article III of the 1987 Constitution.

[5]
 Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, 51
SCRA 189 (1973).

[6]
 249 US 47 (1919).

[7]
 27 SCRA 835 (1969).

[8]
 See US v. Obrien, 391 US 367, 20 L. Ed. 672 (1968).
[9]
 Press Control and Copyright in the 16th and 17th Centuries, 17 Yale L.J. 841 (1920).

[10]
 Licensing Act of 1662, see Holdsworth, A History of English Law, 360-79 (2nd Ed.,
1937).

[11]
 Emerson, The doctrine of Prior Restraint in Law and Contemporary Problems, vol. 20,
pp. 651 (1955) citing Blackstone's Commentaries.

[12]
 283 US 697 (1931).

[13]
 J. Norwak, R. Rotunda & J. Young, Handbook on Constitutional Law 868 (2nd Ed.,
1983).

[14]
 Redish, The Warrent Court, the Burger Court and the First Amendment Overbreadth
Doctrine, 78 Nw. U.L. Rev. 1035 (1983-4).

CONCURRING OPINION

PANGANIBAN, J.:

I concur in the well-written ponencia  of Mr. Justice Vicente V. Mendoza holding that

Section 5.4[1] of Republic Act (RA) No. 9006 is unconstitutional.  The provision is a patent
infringement of the fundamental freedoms of expression and of the press.

In the recent case ABS-CBN Broadcasting Corporation v. Commission on Elections,[2] the

Court en banc junked Comelec Resolution No. 98-1419 dated April 21, 1998, which
restrained the conduct of exit polls, a species of electoral surveys.  We held that "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."  They cannot
be banned "totally in the guise of promoting clean, honest, orderly an credible
elections.  Quite the contrary, exit polls -- properly conducted and publicized -- can be
vital tools in eliminating the evils of election-fixing and fraud."  As mankind pushes the
frontiers of science and technology in mass communications, so must the scope of free
expression expand[3] to cover the conduct and the publication of surveys.

In said case, we visited the long-standing fundamental principle underlying democracies

that the freedom of expression is a preferred right, standing on a higher level than other
substantive liberties.  Indeed, as this nation has recently witnessed once again, lessons
of history, both political and leagal, illustrate that freedom of thought and speech is an
indispensable condition of nearly every other form of freedom.[4] Thus, our Constitution
explicitly mandates that no law shall be passed abridging the freedoms of speech and of
the press.[5]

While the exercise of these basic rights could not be absolute - liberty is never absolute
-- but may be subject to regulation by the state, any limitation should be justified by
a clear and present danger  of such substantive character that the state has a right to
prevent.[6] In other words, 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.[7]

There is, however, no compelling or justifiable reason for the prohibition made by
congress under the assailed law.  The Comelec also utterly fails to convince me that a
substantive danger, which the state has a right to prevent, lies lurking and threatening
to explode if ignited by the conduct and the dissemination of the prohibited surveys.

No lover of freedom, no guardian of the Constitution and no advocate of democracy can

agree to this unreasonable restraint.

Indeed, Daily Herald Co. v. Munro[8] held that the general interest of the state in
insulating voters from outside influences is insufficient to justify speech regulation.

WHEREFORE, I vote to GRANT the Petition and to DECLARE SECTION 5.4 OF RA 9006
UNCONSTITUTIONAL.

[1]
 "Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7) days
before an election."

[2]
 323 SCRA 811, January 28, 2000.

[3]
 Panganiban, Transparency, Unanimity & Diversity, 2000 ed., p. 376.

[4]
 Supra, citing Salonga v. Cruz Pano, 134 SCRA 438, 458-459, February 18, 1985.  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.

[5]
 Sec. 4, Art. III, Constitution.

[6]
 See Priomicias v. Fugoso, 80 Phil. 71 (1948); American Bible Society v. City of Manila;
101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259 SCRA 529, July 26, 1996.
[7]
 Adiong v. Comelec, supra.

[8]
 838 F 2d 380 (9th Cir. 1988), cited in ABS-CBN v. Comelec, supra.

DISSENTING OPINION

KAPUNAN, J.:

Two seemingly conflicting rights or interests, both integral to our democratic system,
are involved in this case.

On the one hand are the freedoms of speech and of the press, which, as often stated,
are accorded a preferred status in our constitutional hierarchy,[1] essential as they are to
preservation and vitality of our civil and political institutions.[2] The primacy, the high
estate of these freedoms is a fundamental postulate of our constitutional system.[3]

On the other hand, the Constitution requires the State to "guarantee equal access to
opportunities for public service,"[4] and mandates Congress to "provide a system for
securing the secrecy and sanctity of the ballot."[5] The State's interest in holding "free,
orderly, honest, peaceful and credible elections"[6] cannot be denied.

At the heart of the controversy is Section 5.4 of Republic Act No. 9006,[7] otherwise
known as the "Fair Election Act,"[8] which states that:

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

"Surveys," as used above, pertain to "election surveys," which in Section 5 thereof-

xxx refer to the measurement of opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a matter of public discussion in
relation to the election, including voters' preference for candidates or publicly discussed
issues during the campaign period. xxx

The Fair Election Act was signed into law by the President on February 12, 2001. 
Pursuant to its authority under Section 13 thereof, the Commission on Elections
(COMELEC) on March 1, 2001 promulgated through Resolution No. 3636 the
Implementing Rules and Regulations of the Fair Election Act.  Section 24 of the
implementing rules is a verbatim reproduction of Section 5.4.
Petitioners contend that the subject provisions violate the freedoms of speech and of
the press enshrined in Section 4, Article III of the Constitution thus:

No law shall be passed abridging the freedom of speech, of expression, or of the press
xxx.

As publisher of a newspaper, Kamahalan maintains that its right to freedom of the press
is unduly infringed by section 5.4.  Insofar as publication (of surveys) is a component of
the freedom of speech, the freedom of SWS is also purportedly severely restricted.

Although among our most cherished rights, the freedoms of speech and of the press are
not absolute or unlimited.  In certain instances, this Court has allowed the regulation of
the exercise of these freedoms vis-a-vis election-related laws.  In Osmena vs.
Commission on Elections[9]  and National Press Club vs. Commission on Elections,
[10]
  the  law prohibiting newspapers, radio broadcasting and television station from
selling or giving free of charge print space or air time for campaign or other political
purposes was declared valid.  In Badoy vs. Commission of Elections,[11] the prohibition on
the publication of paid political advertisements outside the COMELEC space was
likewise upheld.  In Gonzales vs. Commission on Elections, [12] where the prohibition on
the early nomination of candidates and the limitation on the period of election
campaign or partisan political activity under Republic Act No. 4880 was assailed for
being violative of the freedoms of speech, of the free press, of assembly and of
association, the Court declared the law not unconstitutional.

Courts have employed certain tests to determine the validity of restrictions on the rights
to free speech and free press.  The "dangerous tendency" rule provided that the State
has the power to proscribe and punish speech which "creates a dangerous tendency
which the State has a right to prevent."[13] This formulation, however, had long been
abandoned in the United States as well as in this jurisdiction.

The "clear and present danger" rule postulates that "the question in every case is
whether the words are used in such circumstances and are of such nature as to create a
clear an present danger that they will bring about the substantive evils that Congress
has the right to prevent."[14] This rule has been applied in our jurisdiction in a number of
cases.[15]

Nevertheless, Associate Justice Fred Ruiz Castro, Later Chief Justice, in his separate
opinion in Gonzales vs. Commission on Elections,[16] expressed the view that in
determining the constitutionality of Republic Act No. 4880 assailed therein, another
approach, the so-called "balancing-of-interests" test, was more appropriate.  He
observed:

However useful the "clear and present danger" formulation was in the appraisal of a
specific type of situation, there is fairly extensive recognition that it is not a rule of
universal applicability and validity, not an automatic mechanism that relives a court of
the need for careful scrutiny of the features of a given situation and evaluation of the
competing interests involved.[17]

Justice Castro cited American Communications Association v. Douds,[18] where the

"balancing-of-interests" test was supplied.  In said case, the United States Supreme
Court stated that "in suggesting that the substantive evil must be serious and
substantial, it was never the intention of [the U.S. Supreme Court] to lay down an
absolutist test measured in terms of danger to the Nation."[19] Chief Justice Vinzons,
expounded:

When a particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection
under the particular circumstances presented.  xxx In essence, the problem is one of
weighing the probable effects of the statute upon  the free exercise of the right of
speech and assembly against the congressional determination xxx We must, therefore,
undertake the delicate and difficult task xxx to weigh the circumstances and to appraise
the substantiality of the reasons advance in support of the regulation of the free
enjoyment of the rights.[20]

The test is further explained thus:

The theory of balance of interests represents a wholly pragmatic approach to the

problem of First Amendment freedom, indeed, to the whole problem of constitutional
interpretation. It rests on the theory that it is the Court's function in the case before it
when it finds public interests served by legislation on the one hand, and First
Amendment freedoms affected by it on the other, to balance the one against the other
and to arrive at a judgment where the greater weight shall be place.  If on  balance it
appears that public interest served by restrictive legislation is of such character that it
outweighs the abridgment of freedom, then the court will find the legislation valid.  In
short, the balance-of-interests theory rests on the basis that constitutional freedoms are
not absolute, not even those stated in the First Amendment, and that they may be
abridged to some extent to serve appropriate and important public interests.[21]

In Zaldivar vs. Sandiganbayan,[22] this Court reiterated that the clear-and-present danger

test was not a cure-all to freedom of speech controversies:

The "clear and present danger doctrine," which test is invoked by respondent's counsel
is not a magic incantation which dissolves all problems and dispenses with analysis and
judgment in the testing of the legitimacy of claims to free speech, and which compels a
court to exonerate a defendant the moment the doctrine is invoked, absent proof of
impending apocalypse.  The "Clear and present danger" doctrine has been an accepted
method for marking out the appropriate limits of freedom of speech and of assembly in
certain contexts. It is not, however, the only test which has been recognized and applied
by courts.[23]

Zaldivar cited the case of Lagunzad vs. Soto Vda. De Gonzales, [24] where the Court also
referred to the shortcomings of the clear-and-present doctrine noted by Justice Castro
in Gonzales.  Justice Melencio-Herrera further wrote:

xxx Another criterion for permissible limitation on freedom of speech and of the press,
which includes such vehicles of the mass media as radio, television and the movies, is
the "balancing-of-interests test."  The principle "requires a court to take conscious and
detailed consideration of the interplay of interests observable in a given situation or
type of situation."[25] [Citations omitted.]

It is my considered opinion that given the apparent conflict between petitioners' rights
of speech and press - rights enshrined in the Constitution, and the inherent power of
Congress to legislate on matters public interest and welfare, and in pursuance of the
constitutional policy of ensuring of "free, orderly, honest, peaceful and credible
elections," it is ultimately this Court's function and duty to undertake the delicate and
difficult task of weighing and balancing the circumstances to determine whether public
interest is served by the regulation of the free enjoyment of the rights.

I believe that Congress did not exceed constitutional limitations in enacting Section 5.4.

Indisputably, the State has a legitimate interest in fostering an informed electorate.[26] It

has a compelling interest in protecting voters from confusion and undue
influence[27] and, generally, in preserving the integrity of its election process.[28] In
furtherance of these State interests, Congress is empowered to enact laws relative to
the conduct of elections.  It may not only regulate the time, manner and place of the
holding of the elections but may likewise regulate the election campaigns and other
activities relative thereto.[29]

In enacting the Fair Election Act, Congress declared that the State "shall, during the
election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of media of communication or information to guarantee or
ensure equal opportunity for public service, including access to media time and space,
and the equitable right to reply for public information campaigns and fora among
candidates and assure free, orderly, honest, peaceful and credible elections."[30] Further,
said law aims to "ensure that bona fide candidates for any public office shall be free
from any form of harassment and discrimination."[31]

Towards these ends, Section 5.4 was incorporated specifically to prevent the evils
brought about by election surveys published immediately before an election.  The
deliberations on the Senate Floor are revealing:
Adverting to the bill of Senator Tatad, Senator Defensor Santiago said that the country
has no law regulating the conduct of surveys and the activities of survey stations and
private groups particularly those relating to political opinions.  She said that some
Western countries prohibit political opinion polls or surveys for certain periods before
elections to avoid last minute pressure on voters as politicians and political parties often
cause the conduct and dissemination of surveys to advance their political interests.

She informed the body that the Internet reported on a worldwide survey on the
publication of poll results prior to elections where 30 of the 78 countries surveyed apply
legal restrictions on the publication of public opinion survey results comprising an
embargo prior to general elections, which ranges from 24 hours to six weeks before an
election.  She said that among the reasons for the government restrictions cited by the
Internet survey were protecting the integrity of the democratic process, the rights of
privacy and national security considerations.

According to the report, she said, some countries in recent years have prolonged their
embargo periods - for example, Italy, from seven to 28 days; Canada, from no ban to
three days; and Chile, from one to seven days - while other countries have shortened or
withdrawn their embargoes - for example, Croatia, from three days to 24 hours;
Colombia, from 10 to seven days; and Argentina, from two weeks to no ban.

In this connection, Senator Defensor Santiago asked whether Senator Roco would
consider an amendment providing for the criteria for the publication of opinion surveys
as she expressed fear that an opinion survey firm might work diligently for some time in
order to establish a reputation for credibility and then, at the ultimate hour, sell its
services to the highest bidder.

Senator Roco recalled that earlier in the session, he had discussed with senator
Defensor Santiago and some senators the idea of not just lifting the ban on election
propaganda but also of giving fair protection to candidates, especially from the
unfairness of reporting certain survey results during the campaign period.  He added
that the committee had been studying the rule in the United States where poll surveyors
mention who authorized and paid for the survey, and what method was used, and
furnish raw data to anybody who feels aggrieved by the poll results.  He agreed that
there must be a period when surveys should not be published because they influence
elections through self-fulfilling predictions.

However, Senator Roco expressed concern that a full-blown debate on another issue
might impede the approval of the bill, although he welcomed an amendment which
would create a balance of fair reporting and fair opportunity for candidates.

Senator Defensor Santiago warned that the fate of the country's leadership should not
be left in the hands of survey firms which are not accountable to the people and possess
no amount of sovereign power.  Additionally, she expressed resentment that a public
official like herself should be treated like a can of sardines because poll surveys have
reduced political life to a mere matter of appearances.

Senator Roco commented that all professions which deal with communications are
aware that the way a question is put can influence the answer; the more simplistic
question can give rise to a host of interpretations.  On the other hand, he said, it is a
matter of public interest if there is an attempt to measure validity or acceptability of
issues; still, full disclosure and transparency should apply to poll surveyors and to all
who try to promote and protect public welfare.[32]

The original proposal was a 30-day restriction on the publication of surveys. Senator
Flavier suggested the deletion of the restriction,[33] while Senator Osmeña was amenable
to a shorter period of 3 days.[34] Senators Roco and Defensor-Santiago vigorously
opposed the deletion. Senator Roco said that:

x x x the committee cannot accept the deletion of the prohibition as he observed that in
the Philippines, the bandwagon effect is part of campaign planning.  He recalled that in
1969, the influence of propaganda was so evident: every single pole or space was
plastered with "Marcos-Lopez" posters and for the duration of the one-year campaign
period, the newspapers kept on repeating that Marcos-Lopez was unbeatable that after
a while, the people believed it. He explained that it is the publication and not the
conduct of surveys that would be prohibited in this Act. However, he pointed out that
the surveys would be useful to senatorial candidates, especially those who wish to land
in the top six slots, because their names would be repeatedly mentioned on TV so that
the voters might be influenced to vote for them. He said that candidates particularly
those who do not have access to TV and radio have no money to influence publications
should be given equal break during the 30-day period. He appealed the Members to
support the committee's position.[35]

Senator Defensor-Santiago concurred with Senator Roco:

x x x She pointed out that at the start of the debate, the Body was of the consensus that
the operating principles of the bill should be equality and impartiality. She opined that
these principles would be violated if the Body would delete the prohibition. Moreover,
she argued that a political neophyte who deserves exposure because of his honesty,
competence and efficiency would probably not be in the winning circle until the crucial
decisive few days before the election. She said that the publication of a survey at any
point earlier than that would be detrimental to the candidate and to national interest.
She expressed support for Senator Roco's appeal to maintain the present provision.  She
said that the freedom of expression in a constitutional dimension was not relevant to
the discussion because a candidate who can afford it can ask any agency to conduct a
survey; however, out of compelling national interest in the Philippine culture context,
the State prohibits the publication of surveys within a certain period so as to avoid
manipulating the minds of the electorate and to preserve the principle of equality and
impartiality.[36]

Eventually, the position of Senators Roco and Defensor-Santiago prevailed[37] although,

after the Bicameral Conference, the original 30-day limitation was reduced to 15 days
with respect to surveys affecting national candidates.

Evidently, Congress found that the publication of surveys within the prohibited period
inordinately works against candidates who are shown to be "losing."  The assailed
provision thus seeks to avert the "bandwagon effect" supposedly caused by the
publication of election surveys. The bandwagon effect results when a voter opts for a
candidate or candidates whom the surveys reveal as the leading contender or
contenders, the voter believing, rightly or wrongly, that the candidate or candidates
whom the voter actually prefers would lose anyway, as indicated in the surveys. The
bandwagon effect produces more votes for the "winning" candidate ordained as such by
the surveys and less votes for the "losing" candidate. Surveys add to the prospects of
the "winner" and lessen that of the "loser," who is thereby deprived of an equal
opportunity to get elected. Hence, the surveys take the form of a self-fulfilling prophecy.

Ideally, a citizen ought to vote for a candidate based on the latter's personal
qualifications and platform for governance. This is the ideal that the law aims to achieve;
surveys published during the prescribed period before the elections have been deemed
by Congress to frustrate this objective.

The prospect of misinformation magnifies the dangers of the bandwagon effect. There is
nothing to prevent unscrupulous interests from procuring the services of an enterprise
masquerading as a "credible" research institution to conduct "surveys" with
predetermined results, and cause their publication. Worse, there is nothing to prevent
the simple publication of entirely false results. The evil of the bandwagon effect caused
by election surveys, whether absolutely accurate or utterly untrue, is further enhanced
by the pervasiveness of media. Advances in technology have widened the electorate's
access to both information and, regrettably, to misinformation.

It may be argued that propaganda portraying a candidate as possessing certain virtues

or espousing certain causes, regardless of the truth of these claims, also influence the
voter in making his or her choice. The distinction lies in that a survey lulls the voter into
thinking that the election is over but the counting, and that his vote for a losing
candidate would not matter in the end. While election propaganda expressly urge the
voter to choose a candidate because of his qualifications and causes, the surveys,
clothed with the mantle of statistics and couched in esoteric terminology, implicitly urge
the voter to choose a candidate because of his popularity. This persuasive effect is
unique to surveys; it is a feature absent in election propaganda.
This congressional concern regarding the bandwagon effect is supported by a study
cited by the Solicitor General:

It is noteworthy that it is easier to translate voting intentions into potential seats in a

two-party system than in a multi-party arrangement. The accuracy of election polls is
also determined by actual voter turnout; pre-election surveys can sometimes be out of
date by the time they are reported. x x x. Last, polls can present an opportunity for
deliberate misrepresentation or connivance by those who publish survey results; many
examples of this practice by political parties have been cited. Advocacy groups seeking
to influence the public agenda can also commission polls for public release and may
draft questions to support their case or point of view. In short, public opinion surveys
are blunt instruments of prediction and are susceptible to many forms of error.

Opponents of political polling point to notable failures like the predicted victories of
Landon over Roosevelt in 1936, of Dewey over Truman in 1948, and of Wilson over
Heath in Britain in 1970. Most pollsters considered the outcome of the 1980 presidential
election in the United States too close to call, yet Ronald Reagan won by a landslide. The
1992 surprise victory of the Conservatives over Labour in Britain is another similar
example. x x x

THE IMPACT OF POLLING ON THE ELECTORAL PROCESS

A. Direct Effects

Because polls are generally perceived to be accurate and scientific, the debate on
polling centres largely whether it undermines the democratic process by influencing
electoral behaviour and election results. Some political strategists and observers argue
that the publication of polls gives an unfair advantage to parties or candidates whose
fortunes are seen to be improving. The so-called "bandwagon" effect assumes that
knowledge of a popular "tide" will likely change voting intentions in favour of the
frontrunner, that many electors feel more comfortable supporting a popular choice or
that people accept the perceived collective wisdom of others as being enough reason
for supporting a candidate.

The bandwagon phenomenon, however, is dismissed by those who argue that voters do
not pay much attention to poll results in the first place, that not everyone believes
them, and that it is not important for everyone to be on the winning side. Furthermore,
while some voters may want to be on the victorious side, at least a few will rally to
support the expected loser out of sympathy - the so-called "underdog" effect - which
would cancel out or annul any shifts in preference.

Although academics in the United States have long been divided over the impact of
published polls on the outcome of elections, recent research supports the proposition
that their publication can influence a close election, with the most impact occurring late
in a campaign. Recent studies in Canada also support the notion that polls published
during political campaigns can create the "politics of expectations," a situation that
stimulates the bandwagon effect and promotes "strategic voting," in which voting is
influenced by the chances of winning.  For example, citizens may cast ballots for their
second-choice candidate who appears to have a better chance than the first choice of
defeating a disliked candidate or party. Such behaviour is said to be increasing in Canada
as close three-party races become more common. It is therefore argued that voters
making such strategic choices have every right to expect that the results of opinion
surveys are scientifically valid.[38]

The same study also pointed out other "indirect effects" of surveys published during the
election period, that it detracts from the "real" issues of the election and affects a
candidate's momentum:

B. Indirect Effects

The indirect effects of polls during elections may be as important as their possible direct
influence. Because of the multiplicity of published surveys and the attention they
receive from the media, some charge that polls detract from discussion of the "real"
issues. Indeed, many describe news coverage of Canadian elections as being analogous
to that of a sporting event or "horse-race," with serious analysis of the issues or
investigation into areas of voter concern being largely ignored. The media's emphasis on
who is winning and who is losing (as well as on the campaign "style" of leaders and their
parties) may also result in so-called "leader-fixation." As one scholar explains:

Polls conducted throughout the campaign . . . focus on leadership in an attempt to

predict the outcome of the election and to explain it in terms of leader appeal. The polls
are presented as measures to gauge how the leaders' campaigns are fairing. In this
sense the media coverage misrepresents the political system, narrows the focus of
public debate, and denigrates political leaders and institutions.[39]

The deliberations during the Bicameral Conference also intimate another purpose in
passing the challenged provisions, that is, to prevent the nefarious election scheme
known as "dagdag-bawas." Dagdag-bawas,  a phenomenon peculiar to Philippine
elections, takes place when votes cast in favor of one candidate are deducted then
credited to another. Senator Roco also observed that last-minute surveys generate
"junking" of candidates at the tail end of the surveys by their very own party-mates or
supporters.

CHAIRMAN ROCO.  I do not want to say it that way. I only said, that if you will target
people to campaign against, you will target people who are outside 1 to 6 because it is a
waste of time to try to drag No. 6 down to 13. Legitimate campaign.
Mapababa mo man ang No.1, umabot ng no. 6, he or she still occupies one post.  Hindi
nawawala. Ang tatargetin mo, 9, 10, 11, parang junking doon sa sample ballots
mawawala yong mga mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to
8, ang hirap-hirap nang tanggalin.

So, in your sample ballots you don't care.  Sa sample ballots, kung sa surveys 10, 11, 12,
eh, lalo kung 12, naku, candidate 'yon for disappearance.  Yon ang mga napapalitan ang
mga favorite.  Hindi ba?  Sa Bicol tanggal yon.  Ang lalabas doon Bicolano lang.  Di ba?
Kung mahina-hina ang No.12, tanggal na yon.  Mahina-hina ang No.11, tanggal na yon sa
mga regions.  Every region has its own favorite.  Papasok na sa sample ballots.  Walang
dayaan yon.  But you will not try to eliminate somebody who is impossible to eliminate. 
What is your interest?  Loren is No.1, so, she becomes No.3.  Who cares! Maybe, she's a
bit unhappy.  But she is still senator, you see![40]

Senator Legarda-Leviste also expressed that "it is the fear of some of the other senators
that because they are perceived to be the last three or four slot occupants and they
could be the target of a 'dagdag-bawas.'"[41]

That the law, in Sections 5.2 and 5.3, prescribes certain requirements in the publication
of surveys and allows the inspection thereof do not suffice to thwart the dangers sought
to be avoided by Section 5.4. Election surveys are more in demand as the elections draw
closer. The reason is obvious. The public rating of the candidates shifts from time to
time over the months.  But a survey taken very close to the election might be taken as
indicative of a firm and final tally of the results, giving more motive to fly-by-night
pollsters or survey groups controlled by vested interests to manipulate the survey
results.  It is conceded that Sections 5.2 and 5.3 affords interested parties an
opportunity to examine and analyze the published surveys and to refute or confirm their
accuracy.  However, these regulations lose their efficacy during the period
contemplated by Section 5.4 because said interested parties would no longer have
adequate time to test the veracity of said surveys, especially if they are published, say, a
day before the elections.[42]

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable.  Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys.  It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion.  These surveys may be
published thereafter.

Our electoral system and processes are not necessarily of the same level of political
maturity that countries like the United States and other more developed countries have
attained.  It is noteworthy that numerous other countries recognized the deleterious
effects on the electoral process by the publication of surveys immediately before the
elections.  Accordingly, they impose similar restrictions, although varying as to the
periods:  Turkey and Luxembourg, 30 days; South Africa, 42 days; Italy, 28 days;
Indonesia, 21 days; Peru, Venezuela and Uruguay, 15 days; Poland, 12 days; France,
Hungary, Portugal, Switzerland, Chile, Columbia and Mexico, 7 days; Spain, 5 days;
Russia, Australia and Bolivia, 2 days; Fiji, New Zealand, Armenia, Belarus, Bulgaria,
Croatia, Khazakstan and Lithuania, 1 day.[43]

The reasons advanced in support of Section 5.4, far from being matters of mere
legislative preferences or beliefs regarding the evils sought to be remedied, sufficiently
justify the restriction on such vital rights as the freedoms of speech and of the press.  It
bears stressing that it is Congress, not this Court, which his primarily charged with the
determination of the need for regulation of such activities. Thus, insofar as the need for
regulation of the publication of election surveys within the periods laid down in Section
5.4 is concerned, this Court is in no position to substitute its judgment as to the
necessity or desirability of the same for that of Congress.[44]

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition.

[1]
 Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712 (1992); Mutuc vs.
Commision on Elections, 36 SCRA 228 (1970).

[2]
 Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills, 51
SCRA 189 (1973).

[3]
 Gonzales vs. Commission of Elections, 27 SCRA 835 (1969).

[4]
 Article II, Section 26.

[5]
 Article V, Section 2.

[6]
 Article IX-C, Section 4 reads:

Sec. 4.  The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.

[7]
 An Act to enhance the Holding of Free, Orderly, Honest, Peaceful and Credible
Elections Through Fair Election Practices.

[8]
 R.A. No. 9006, Section 1.

[9]
 288 SCRA 447 (1998).

[10]
 207 SCRA 1 (1992).

[11]
 35 SCRA 285 (1970).

[12]
 Supra.

[13]
 Gitlow v. New York, 268 U.S. 652, 69 L Ed 1138.

[14]
 Schenck v. Untied states, 249 U.S. 47, 63 L Ed 470, 473-474.

[15]
 ABS-CBN Broadcasting Corp. vs. Commission on Elections, 323 SCRA 811 (2000); Blo
Umpar adiong vs. Commission on Elections, supra; Imbong vs. Ferrer, 35 SCRA 28 (1970).

[16]
 Supra.

[17]
 Id., at 898.

[18]
 339 U.S. 383, 94 L Ed 925.

[19]
 Id., at 944.

[20]
 Id., at 943.

[21]
 KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION, p. 113 cited in Separate Opinion,
Castro, J., in Gonzales vs. Commission on Elections, supra.

[22]
 170 SCRA 1 (1989).

[23]
 Id., at 8.

[24]
 92 SCRA 476 (1979).

[25]
 Id., at 488.
[26]
 Eu v. San Francisco Democratic Com., 489 US 214, 103 L Ed 2d 271, 109 S Ct. 1013.

[27]
 Burson v. Freeman, 119 L Ed 2d 5.

[28]
 Id.; ABS-CBN Broadcasting Corp vs. Commission on Elections, 323 SCRA 811 (2000).

[29]
 Gonzales vs. Commission on Elections, 27 SCRA 835 (1969).

[30]
 Republic Act No. 9006, Section 2.

[31]
 Ibid.

[32]
 Senate Journal, Session No. 13, August 21, 2000, pp. 189-190.

[33]
 Senate Journal, Session No. 22, October 2, 2000, p. 266.

[34]
 Ibid.

[35]
 Id., at 267.

[36]
 Id., at 267-268.

[37]
 Id., at 268.

[38]
 Comment of the Solicitor General, pp. 8-11, citing Public Polling in Canada by Claude
Emery, at http://www.parl.gc.ca/information/library/PRBpubs.

[39]
 Id.

[40]
 Transcript of Committee Meetings, Bicameral Conference Committee on the
Disagreeing Provisions of Senate Bill No. 1742 and House Bill No. 9000, November 23,
2000, p. 32.

[41]
 Id., at 36.

[42]
 Alvin Capino, in his column "counterpoint" (today, April 21, 2001) had this to say:

One more reason why survey results for senators should be taken with a grain of salt is
the explanation of Felipe Miranda of Pulse Asia about the adjustment pollsters make
because of the so-called command votes.

Command votes are the block votes of religious groups like Iglesia ni Cristo and El
Shaddai. Members of these groups vote according to the instructions of their leaders.
According to those who attended a recent briefing of Miranda, the head of Pulse Asia
places minor weight on the so-called command votes.  Pulse Asia places the command
votes at a low 1.5 million votes.  The number, the say, would have no major impact on
the election results.

The problem of pollsters is that members of the Iglesia ni Cristo with a voting strength of
at least three million do not participate in surveys.  The fact that INC members are not
covered by surveys could distort survey results.

A senatorial candidate, for example, who thinks that he safe in, say, his ranking of 8th or
9th might suddenly find himself outside the Magic 13 simply because the senatorial
candidates below him were supported by the INC and he was not.

[43]
 Senate Journal , Session No. 22, October 2, 2000, p. 267.

[44]
 See American Communications Association vs. Douds, supra.

Source: Supreme Court E-Library | Date created: December 16, 2014

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1.            Freedom from censorship and prior restraint

h.      Chavez vs. COMELEC, 437 SCRA 415
480 Phil. 915

EN BANC

[ G.R. No. 162777, August 31, 2004 ]

FRANCISCO I. CHAVEZ, PETITIONER, VS. COMMISSION ON ELECTIONS, REPRESENTED

BY ITS CHAIRMAN, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, IN HER
CAPACITY AS ACTING DIRECTOR IV, NATIONAL CAPITAL JUDICIAL REGION,
COMMISSION ON ELECTIONS, AND THE SOLICITOR GENERAL, RESPONDENTS.

DECISION

AZCUNA, J.:

In this petition for prohibition with prayer for the issuance of a writ of preliminary
injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to
enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its
Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows:

Section 32. All propaganda materials such as posters, streamers, stickers or paintings on

walls and other materials showing the picture, image, or name of a person, and all
advertisements on print, in radio or on television showing the image or mentioning the
name of a person, who subsequent to the placement or display thereof becomes a
candidate for public office shall be immediately removed by said candidate and radio
station, print media or television station within 3 days after the effectivity of these
implementing rules; otherwise, he and said radio station, print media or television
station shall be presumed to have conducted premature campaigning in violation of
Section 80 of the Omnibus Election Code.

Petitioner Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. On August 18, 2003, he authorized a certain
Andrew So to use his name and image for 96° North, a clothing company. Petitioner also
signed Endorsement Agreements with Konka International Plastics Manufacturing
Corporation and another corporation involved in the amusement and video games
business, G-Box. These last two agreements were entered into on October 14, 2003 and
November 10, 2003, respectively. Pursuant to these agreements, three billboards were
set up along the Balintawak Interchange of the North Expressway. One billboard showed
petitioner promoting the plastic products of Konka International Plastics Manufacturing
Corporation, and the other two showed petitioner endorsing the clothes of 96° North.
One more billboard was set up along Roxas Boulevard showing petitioner promoting the
game and amusement parlors of G-Box.

On December 30, 2003, however, petitioner filed his certificate of candidacy for the
position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political
parties: PROMDI, REPORMA, and Aksyon Demokratiko.

On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained
Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed
to comply with the said provision by the COMELEC’s Law Department. He replied, on
January 29, 2004, by requesting the COMELEC that he be informed as to how he may
have violated the assailed provision. He sent another letter dated February 23, 2004,
this time asking the COMELEC that he be exempted from the application of Section 32,
considering that the billboards adverted to are mere product endorsements and cannot
be construed as paraphernalia for premature campaigning under the rules.

The COMELEC answered petitioner’s request by issuing another letter, dated February
27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to
cover them from public view pending the approval of his request.

Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from
enforcing the assailed provision. He urges this Court to declare the assailed provision
unconstitutional as the same is allegedly (1) a gross violation of the non-impairment
clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law;
(4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power?

Petitioner argues that the billboards, while they exhibit his name and image, do not at
all announce his candidacy for any public office nor solicit support for such candidacy
from the electorate. They are, he claims, mere product endorsements and not election
propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope
of the powers of the COMELEC, he concludes.

This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is
the power to prescribe regulations to promote the health, morals, peace, education,
good order, or safety, and the general welfare of the people.[1] To determine the validity
of a police measure, two questions must be asked: (1) Does the interest of the public in
general, as distinguished from those of a particular class, require the exercise of police
power? and (2) Are the means employed reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon individuals?

A close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public
office, to equalize the situation between popular or rich candidates, on one hand, and
lesser-known or poorer candidates, on the other, by preventing the former from
enjoying undue advantage in exposure and publicity on account of their resources and
popularity. The latter is a valid reason for the exercise of police power as held
in National Press Club v. COMELEC,[2] wherein the petitioners questioned the
constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or
donation of print space and air time “for campaigning or other political purposes,”
except to the COMELEC. The obvious intention of this provision is to equalize, as far as
practicable, the situations of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign “war chests.” This Court ruled
therein that this objective is of special importance and urgency in a country which, like
ours, is characterized by extreme disparity in income distribution between the economic
elite and the rest of society, and by the prevalence of poverty, with so many of our
population falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely product
endorsements and do not announce nor solicit any support for his candidacy. Under the
Omnibus Election Code, “election campaign” or “partisan political activity” is defined as
an act designed to promote the election or defeat of a particular candidate or
candidates to a public office. Activities included under this definition are:

(1) Forming organizations, associations, clubs, committees, or other groups of persons

for the purpose of soliciting votes and/or undertaking any campaign for or against a
candidate

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or

against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or

oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

[3]
 (underscoring ours)

It is true that when petitioner entered into the contracts or agreements to endorse
certain products, he acted as a private individual and had all the right to lend his name
and image to these products. However, when he filed his certificate of candidacy for
Senator, the billboards featuring his name and image assumed partisan political
character because the same indirectly promoted his candidacy. Therefore, the COMELEC
was acting well within its scope of powers when it required petitioner to discontinue the
display of the subject billboards. If the subject billboards were to be allowed, candidates
for public office whose name and image are used to advertise commercial products
would have more opportunity to make themselves known to the electorate, to the
disadvantage of other candidates who do not have the same chance of lending their
faces and names to endorse popular commercial products as image models. Similarly,
an individual intending to run for public office within the next few months, could pay
private corporations to use him as their image model with the intention of familiarizing
the public with his name and image even before the start of the campaign period. This,
without a doubt, would be a circumvention of the rule against premature campaigning:

Sec. 80. Election campaign or partisan political activity outside campaign period. – It

shall be unlawful for any person, whether or not a voter or candidate, or for any party,
or association of persons, to engage in an election campaign or partisan political activity
except during the campaign period. x x x [4]

Article IX (C) (4) of the Constitution provides:

Sec. 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.

Under the abovementioned Constitutional provision, the COMELEC is expressly

authorized to supervise or regulate the enjoyment or utilization of all media
communication or information to ensure equal opportunity, time, and space. All these
are aimed at the holding of free, orderly, honest, peaceful, and credible elections.

Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment

clause. The non-impairment clause of the Constitution must yield to the loftier purposes
targeted by the Government.[5] Equal opportunity to proffer oneself for public office,
without regard to the level of financial resources one may have at his disposal, is indeed
of vital interest to the public. The State has the duty to enact and implement rules to
safeguard this interest. Time and again, this Court has said that contracts affecting
public interest contain an implied reservation of the police power as a postulate of the
existing legal order. This power can be activated at anytime to change the provisions of
the contract, or even abrogate it entirely, for the promotion or protection of the general
welfare. Such an act will not militate against the impairment clause, which is subject to
and limited by the paramount police power.[6]

Furthermore, this Court notes that the very contracts entered into by petitioner provide
that the endorser’s photograph and image shall be utilized in whatever form, mode and
manner “in keeping with norms of decency, reasonableness, morals and law;”[7] and in
whatever form, mode and manner not contrary to law and norms of decency,”[8] and “in
whatever form, mode and manner in keeping with norms of decency, reasonableness,
morals and law.”[9]

Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex
post facto law. He urges this Court to believe that the assailed provision makes an
individual criminally liable for an election offense for not removing such advertisement,
even if at the time the said advertisement was exhibited, the same was clearly legal.
Hence, it makes a person, whose name or image is featured in any such advertisement,
liable for premature campaigning under the Omnibus Election Code.[10] A close scrutiny
of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although
not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of
this nature must operate prospectively, except when they are favorable to the accused.
It should be noted, however, that the offense defined in the assailed provision is not the
putting up of “propaganda materials such as posters, streamers, stickers or paintings on
walls and other materials showing the picture, image or name of a person, and all
advertisements on print, in radio or on television showing the image or mentioning the
name of a person, who subsequent to the placement or display thereof becomes a
candidate for public office.” Nor does it prohibit or consider an offense the entering of
contracts for such propaganda materials by an individual who subsequently becomes a
candidate for public office. One definitely does not commit an offense by entering into a
contract with private parties to use his name and image to endorse certain products
prior to his becoming a candidate for public office. The offense, as expressly prescribed
in the assailed provision, is the non-removal of the described propaganda materials
three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for
public office fails to remove such propaganda materials after the given period, he shall
be liable under Section 80 of the Omnibus Election Code for premature campaigning.
Indeed, nowhere is it indicated in the assailed provision that it shall operate
retroactively. There is, therefore, no ex post facto law in this case.

Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to
him, under this law, billboards are already permitted as lawful election propaganda. He
claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a
form of election propaganda through the assailed provision, violated the Fair Elections
Act. Petitioner’s argument is not tenable. The Solicitor General rightly points out that
the assailed provision does not prohibit billboards as lawful election propaganda. It only
regulates their use to prevent premature campaigning and to equalize, as much as
practicable, the situation of all candidates by preventing popular and rich candidates
from gaining undue advantage in exposure and publicity on account of their resources
and popularity.[11] Moreover, by regulating the use of such election propaganda
materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13
of the Fair Elections Act, all election propaganda are subject to the supervision and
regulation by the COMELEC:

SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on television,

cable television radio, newspapers or any other medium is hereby allowed for all
registered political parties, national, regional, sectoral parties or organizations
participating under the party list elections and for all bona fide candidates seeking
national and local elective positions subject to the limitation on authorized expenses of
candidates and political parties observance of truth in advertising and to the supervision
and regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the
size of which does not exceed eight and one half inches in width and fourteen inches in
length;

3.2. Handwritten or printed letters urging voters to vote for or against any particular
political party or candidate for public office;

3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not
exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of a
public meeting or rally, or in announcing the holding of said meeting or rally, streamers
not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That
said streamers may be displayed five (5) days before the date of the meeting or rally and
shall be removed within twenty-four (24) hours after said meeting or rally;

3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements
shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus Election
Code or this Act.

xxx

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. –- The

COMELEC shall promulgate and furnish all political parties and candidates and the mass
media entities the rules and regulations for the implementation of this Act, consistent
with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86
of the Omnibus Election Code (Batas Pambansa Blg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to effectivity of said rules and regulations,
no political advertisement or propaganda for or against any candidate or political party
shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement
this Act shall be an election offense punishable under the first and second paragraphs of
Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid
because of overbreadth.

A statute or regulation is considered void for overbreadth when it offends the

constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.[12]

The provision in question is limited in its operation both as to time and scope. It only
disallows the continued display of a person’s propaganda materials and advertisements
after he has filed a certificate of candidacy and before the start of the campaign period.
Said materials and advertisements must also show his name and image.

There is no blanket prohibition of the use of propaganda materials and advertisements.

During the campaign period, these may be used subject only to reasonable limitations
necessary and incidental to achieving the purpose of preventing premature campaigning
and promoting equality of opportunities among all candidates.

The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No.

6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order
and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-

Morales, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.

[1]
 Acebedo Optical v. CA, 329 SCRA 314 (2000).

[2]
 207 SCRA 1 (1992).

[3]
 Article X, Section 79 (b) of the Omnibus Election Code.
[4]
 Article X, Section 80 of the Omnibus Election Code.

[5]
 Philippine Association of Service Exporters v. Drilon, 163 SCRA 386 (1988).

[6]
 Caleon v. Agus Development Corporation, 207 SCRA 748 (1992), citing Villanueva v.
Castañeda, 154 SCRA 142 (1987).

[7]
 Petition, Annex B-2, rollo, pp. 60-62.

[8]
 Petition, Annex B-1, rollo, pp. 57-59.

[9]
 Petition, Annex B, rollo, p. 56.

[10]
 Petition, p. 14; rollo, p. 16.

[11]
 Solicitor General’s Comment, p. 28; rollo, p. 107.

[12]
 Adiong v. Comelec, 207 SCRA 712 (1992).

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2.      Freedom from subsequent punishment

a.      Alonzo vs. CA, February 1, 1996
311 Phil. 60

FIRST DIVISION

[ G.R. No. 110088, February 01, 1995 ]

DR. MERLE A. ALONZO, PETITIONER, VS. COURT OF APPEALS, PEOPLE OF THE

PHILIPPINES, JUDGE DAN VELASCO, AND DR. ANGELES VELASCO, RESPONDENTS.

DECISION

DAVIDE, JR., J.:

This petition for review on certiorari challenges the decision [1] of the Court of Appeals in
CA-G.R. CR No. 10504 and its resolution [2] denying the motion for the reconsideration of
the decision. The decision affirmed in toto the judgment of the Regional Trial Court,
Branch 11, Davao City, in Criminal Case No. 13698 convicting the petitioner of libel.

The antecedent facts are summarized by the Court of Appeals as follows:

"From 1984 to 1986, accused Dra. Merle A. Alonzo was the Field Operations Officer of
the Philippine Medical Care Commission (PMCC) for Region XI. On June 13, 1985,
accused was directed by Executive Officer of the PMCC, Rossi Castro, to conduct
inspections of Medicare-accredited clinics and hospitals (Exhibit 1). The directive was
approved by the Chairman of PMCC, Dr. Pacifico Marcos, as Special Order No. 73.
Among the Medicare-accredited clinics inspected by accused were the Sto. Niño Medical
Clinic in Astorga, Sta. Cruz, Davao del Sur, and Our Lady of Fatima Medical Clinic in
Guihing, Hagonoy, Davao del Sur (Exhibits E, E-1, and F). The clinics were owned and
managed by complainant Dra. Angeles Velasco, married to Judge Dan Velasco of the
MTC-Hagonoy, Davao del Sur. After the inspection, accused submitted her report on her
findings to Dr. Jesus Tamesis, PMCC Vice-Chairman. The report reads as follows:

'Dr. Jesus V. Tamesis

Vice Chairman PMCC

S i r:

The folder of the Sto. Nino Medical Clinic and that of Our Lady of Fatima both owned
and managed by Dra. Angeles Fe [sic] Velasco is not accompanied by the standard SIR
because of time pressure since I inspected it at past four in the afternoon. My purpose
was to invite the physicians in the area to the forthcoming July 7 medical meeting.
However, after checking the physical plant, I discovered that it was too small for a 50
bed hospital. I therefore proceed[ed] to the actual inspection which revealed the
following:

GSIS - 0 
-  
SSS  
14
Non Medicare - 1 
  -------- 
Total 15 

Again almost all of the charts with IVF and parenterals were not noted in the nurses'
progress notes as either inserted, refused, deferred or consumed.

1. Marcial Emma # 699 admitted June 25, 1985.

2. Gelvero, Anita # 690 admitted June 27, 1985.

I therefore attach the written statement of the above 2 female patients. See attached
brown paper in Bisaya[n]. There were five other patients who had similar findings but
they refused perhaps out of fear. This is the third time I found Dra. Velasco to be
practicing this kind of giving Doctors' order and should be stopped thru the following:

1. Demand all purchase receipts of IVF and drugs.

2. Require that she keep an inventory of all medicines use for medicare patients.
3. To modify her charting of medication sheet.
4. More intensive inspection especially after 6:00 p.m.
5. Monitor all filed claims whether IVF refused or not not [sic] inserted were later
on claimed.

The couple is treatening [sic] me with libel according to the Davao del sur PHA grapevine
and it puzzles me how and why?

The other folder that of the Sto. Niño has the following violations:

1. Classified as Secondary by the MOH which should not be.

2. 7 charts are those who were not physically present on inspection.
3. The clinic is not manned by a physician at night.

In all, this particular clinic should be closely monitored because, aside from the above
mentioned violations, the husband is a judge arid it gives them a certain amount of
"untouchability". In fact, they make court suits their pasttime.

(SGD.) MERLE A. ALONZO, M.D.

FOO, Region XI’

(Annex C, Exhibit B, Underscoring ours)

On the basis of said report and other documents, Executive Director Rossi Castro, on
October 15, 1985, filed a complaint with the PMCC against the Sto. Niño Medical Clinic
for ‘Misrepresentation by Extending Confinement of Patients, Misrepresentation by
Claiming for Non-Existing Patients, Breach of Warranty of Accreditation’ (Exhibit B).

On January 6, 1986, complainant Dra. Angeles Velasco received summons from the
PMCC, together with attached complaint and annexes, which included the report of
accused (Exhibit A). Thereupon, after reading the papers, she went to see her husband,
Judge Dan Velasco, at the latter's office at Hagonoy, Davao del Sur, and showed him the
same. Finding that the last portions of the report to be libelous, complainant Judge
Velasco and complainant Dra. Angeles Velasco went to see their lawyer Atty. David
Montaña at the latter's office in Quimpo Building, Rizal St., Davao City. Since Atty. David
Montaña was out, the complainants entrusted the summons and the complaint with
annexes, contained in a folder with Atty. Paquito Balasabas whose office was adjacent to
that of Atty. Montaña, with the request that Atty. Balasabas deliver the folder to Atty.
Montaña. Atty. Balasabas examined the documents and read them." [3]

Dr. Velasco and her husband, Judge Dan Velasco, then filed a complaint for libel against
the petitioner with the Office of the City Fiscal of Davao City and, after preliminary
investigation, Assistant City Fiscal Raul Bendigo filed the corresponding information for
libel against the petitioner with the Regional Trial Court, Davao City, which docketed it
as Criminal Case No. 13698.

After due trial, the trial court promulgated on 19 November 1990 its decision finding the
petitioner "guilty beyond reasonable doubt of two (2) crimes of libel, penalized under
Article 355 of the Revised Penal Code, as charged," and sentenced her "to pay a fine of
P1,000.00 for each crime; pay Dr. Angeles Te-Velasco and Judge Dan U. Velasco
P5,000.00 each for moral damages; and to pay the costs." [4]

The trial court found defamatory the statement in the last paragraph which read: "the
husband is a judge and it gives them certain amount of ‘untouchability.’ In fact, they
make court suits their pasttime." The trial court said that this statement "conveys the
meaning that Judge Velasco abuses his powers and authority as a judge thus enabling
him and his wife to violate the law with impunity and even ‘make court suits their
pasttime [sic].'" Regarding the requirement of publication, it held that there was
sufficient publication of the petitioner's subject report when she sent it to Dr. Tamesis.
Thus:

"In the instant case, although the letter was contained in a closed envelope, the accused
sent it to Dr. Jesus V. Tamesis, a person other than the complainants (Dr. Angeles Te
Velasco and Judge Dan U. Velasco), thus parting with its possession with the intention
that it be read, as it was read, by Dr. Tamesis. There was, therefore, sufficient
publication."

The trial court rejected the petitioner's defense that her report was a privileged
communication and that she could not be held liable for libel because "[t]here is
evidence on record that she begrudged and bore the complainants ill-will for not
extending to her a loan of P1,500.00 and for refusing to bear the vacation expenses of
her children at the Davao Insular Hotel, the most expensive hostelry in Davao City."

Unable to accept the judgment and insisting upon her innocence, the petitioner
appealed from the judgment to the Court of Appeals which docketed the case as CA-
G.R. CR No. 10504.

In its decision of 29 January 1993 affirming the trial court's judgment, the Court of
Appeals conceded that the subject report of the petitioner was a "qualified privileged
communication" under the first paragraph of Article 354 of the Revised Penal Code but
held that the privilege was lost because of proof of actual malice.
"In the report, when appellant made the derogatory imputations, the same conveyed
the clear meaning that Judge Velasco, husband of Dra. Angeles Velasco, abuses his
power and authority as judge, thus enabling him and his wife to violate the law with
impunity and even make court suits their pasttime. The derogatory remarks were
obviously made out of ill-will or revenge, in view of the rumored threat of libel from the
complainants according to the Davao del Sur PHA grapevine. Thus, malice in fact is
present, as there is intent to injure the good name of persons without justifiable motive,
making the communication actionable."

The petitioner's claim that her report was necessary as she was required to submit the
same after inspection and that "her intention was to convey the possible consequences
she may suffer due to the said investigation as well as any difficulties the Commissioner
may encounter in pursuing legal action against the erring clinics and its owners" was
rejected by the trial court.

"There could be no question that the reporting of the irregularities was in pursuance to
a legal duty, for which appellant could not be held liable. But the report was not
confined to such reporting called for by duty; it included derogatory imputations against
complainants which are absolutely without relevancy and pertinency to the subject
matter of the investigation and report as directed in Special Order 73. The report even
went to the extent of maligning the judge who had nothing to do with the operation of
the clinic.

...

Any alleged difficulty that the Commission may encounter in the pursuit of its legal
action against the erring clinic, is purely conjectural and speculative; and if at all there
be such difficulty, it is not appellant's business to deal with but the Commission's
exclusive affair."

Her motion for reconsideration having been denied, the petitioner filed the instant
petition and in seeking a reversal of the challenged decision, she claims that the Court of
Appeals:

"I.   X X X ERRED IN CONCLUDING THAT ON THE BASIS OF ITS FINDING, THERE WAS
PUBLICATION OF THE SUPPOSED DEROGATORY REMARKS.

II.   X X X ERRED IN DEEMING THE REMARKS IN QUESTION TO BE DEROGATORY.

III.   X X X MISAPPLIED THE LAW IN JUDGING THAT THE PRIVILEGED NATURE OF THE
REPORT HAS BEEN LOST BY PROOF OF ACTUAL MALICE; THE PUBLIC RESPONDENT'S
FINDING OF ACTUAL MALICE IS NOT SUPPORTED BY THE EVIDENCE."

Put more simply, the primordial issue raised in this petition is whether the questioned
report of the petitioner to Dr. Tamesis is libelous.

Libel is defined in Article 353 of the Revised Penal Code as follows:

"ART. 353. Definition of libel. -- A libel is a public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act or omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead."

For an imputation then to be libelous, the following requisites must concur:

"(a)    It must be defamatory;

(b)     It must be malicious;
(c)     It must be given publicity; and
(d)     the victim must be identifiable." [5]

Any of the imputations covered by Article 353 is defamatory and, under the general rule
laid down in Article 354, every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown.
There is malice when the author of the imputation is prompted by personal ill-will or
spite and speaks not in response to duty but merely to injure the reputation of the
person who claims to have been defamed. [6] Truth then is not a defense, unless it is
shown that the matter charged as libelous was made with good motives and for
justifiable ends. Article 361 of the Revised Penal Code provides, in part, as follows:

"ART. 361. Proof of truth. — In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is
true, and, moreover, that it was published with good motives and for justifiable ends,
the defendant shall be acquitted."

However, malice is not presumed and must, therefore, be proved, under the following
exceptions provided for in Article 354, viz.:

"1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions."

The privileged character of these communications is not absolute, but merely qualified
since they could still be shown to be malicious by proof of actual malice or malice in
fact. [7] The burden of proof in this regard is on the plaintiff or the prosecution. [8]

Publication means "to make public; to make known to people in general; to bring before
the public." [9] Specifically put, publication in the law of libel means the making known of
the defamatory matter, after it has been written, to some person other than the person
of whom it is written. If the statement is sent straight to a person of whom it is written
there is no publication of it. [10] The reason for this is that [a] communication of the
defamatory matter to the person defamed cannot injure his reputation though it may
wound his self-esteem. A man's reputation is not the good opinion he has of himself,
but the estimation in which others hold him. [11]

It is undisputed that the petitioner, as Field Operations Officer for Region XI of the
PMCC, is a public officer and that she submitted the questioned report after she had
conducted the inspection of the two clinics of Dr. Velasco pursuant to and by virtue of
the directive of the Executive Officer, Atty. Rossi Castro, which was duly approved by the
Chairman of the PMCC, Dr. Pacifico Marcos, as Special Order No. 73 [12] under which she
was to submit a report. Her authority to conduct the inspection and to submit the
corresponding report were not questioned by the private respondents. In her direct
examination, Dr. Velasco categorically admitted this official authority and duty of the
petitioner. Thus:

"ATTY. MONTANA:
   
xxx
Q You mentioned that at the time she was one of the inspectors, inspector of
what?
A Philippine Medical Care Commission.
Q As such, therefore, she has the right and duty to inspect medical clinics?
A She was assigned to inspect my clinic and as a matter of fact all clinics in Davao
del Sur and Region XI.
COURT:
Q And also in Region 10?
A Yes, Sir.
 
ATTY. MONTANA:
 
Q When you were referring to Dra. Merle Alonzo, the accused in this case, having
authority to inspect all medical clinics in Davao del Sur, you are referring to
medical clinics accredited with the Philippine Medical Care Commission?
A Yes, Sir.
Q Now, will you please tell the Honorable Court the procedure of the Philippine
Medical Care Commission regarding matters over which it exercises its
jurisdiction on inspections? In other words, why it be inspected by the
Philippine Medical Care Commission?
A These field inspectors are assigned to inspect clinics in order to see to it that
clinics are properly following rules and regulations of the Philippine Medical
Care Commission." [13]
It is precisely because of such authority that the Court of Appeals conceded that her
questioned report was a qualified privileged communication under the first paragraph of
Article 354 of the Revised Penal Code. There can then be no doubt that the petitioner
made her report in the exercise of her official duty or function. She rendered it in due
course to her superior who had a duty to perform with respect to its subject matter and
which the latter faithfully did by filing the appropriate complaint against Dr. Velasco
after an evaluation of the report.

In Deaño  vs.. Godinez, [14] we held:

"Indeed, the communication now denounced by plaintiff as defamatory is one sent by

defendant to his immediate superior in the performance of a legal duty, or in the nature
of a report submitted in the exercise of an official function. He sent it as an explanation
of a matter contained in an indorsement sent to him by his superior officer. It is a report
submitted in obedience to a lawful duty, though in doing so defendant employed a
language somewhat harsh and uncalled for. But such is excusable in the interest of
public policy."

In the said case, we affirmed the dismissal by the trial court of a complaint for damages
arising from an allegedly libelous indorsement sent by Godinez, a district supervisor, to
the Division Superintendent of Schools, his immediate superior, by way of an
explanation of an alleged confusion concerning a dental-medical report wherein
Godinez stated that Deaño, the school dentist, "is a carping critic, a fault-finder and
suspects every teacher or school official to be potential grafters and swindlers of the
medical-dental funds," and that "she did more harm than good to the teeth of the
patients she treated."

We thus fully agree with the Court of Appeals that the report falls within the first
paragraph of Article 354 of the Revised Penal Code. Consequently, the presumption of
malice or malice in law was negated by the privileged character of the report. The
privilege may only be lost by proof of malice in fact. It is, nevertheless, settled that "[a]
privileged communication should not be subjected to microscopic examination to
discover grounds of malice or falsity. Such excessive scrutiny would defeat the
protection which the law throws over privileged communications. The ultimate test is
that of bona fides." [15]

Tested under these principle, we disagree with the conclusion of the trial court that
malice in fact was duly proved in this case since the petitioner "was moved by ill-will"
because Dr. Velasco did not grant her "a loan of P1,500.00" and refused "to bear the
vacation expenses of her children at the Davao Insular Hotel, the most expensive
hostelry in Davao City." This conclusion is purely conjectural for, as a matter of fact, Dr.
Velasco herself was uncertain if these incidents indeed incited the petitioner. Thus, in
answer to her counsel's question as to the possible motive why the petitioner submitted
an "untruthful" report to the PMCC, Dr. Velasco candidly declared:

"Perhaps Dra. Alonzo was angry because I was not able to give what she demanded first,
when she wanted her children to be taken to Davao for a vacation and secondly, when
she asked P1,500.00 and I was only able to produce P500.00. So maybe that was the
cause why she was mad at me and she made that report." [16]

Dr. Velasco's deliberate use of the words perhaps and maybe clearly conveyed her
incertitude. It must also be stressed that her aforesaid testimony regarding the
petitioner's motive was not directed on the portions of the report which the trial court
considered derogatory as earlier adverted to, but on the "untruthful" report of
violations. The specific question to which the above answer of Dr. Velasco was made
reads as follows:

"ATTY. MONTANA:
   
Q You claimed before this Honorable Court that the facts contained in the
charges against your medical clinic, the Sto. Niño Medical Clinic, contained in
Exhibit "B" which was duly served to you by way of summons also identified as
Exhibit A are not true, the basis precisely, after reading this complaint, seems
to hinge on the report of the accused to the Medical Care Commission for
certain violations, enumerated in Exhibit C. Will you please tell the Honorable
 Court, since these are not true, what motivated, to your way of understanding,
what motivated the accused to make this, according to you, untruthful report
to the Commission?" [17]

Moreover, the petitioner denied the factual basis for the speculation of Dr. Velasco.
Thus:

"ATTY. ALDEVERA:
   
Q Dr. Alonzo, the complainant Dr. Te-Velasco also testified that you borrowed
P500.00 from her, is that true?
A That is not true.
ATTY. ALDEVERA:
We reform.
Q According to complainant you borrowed the amount of P1,000.00 and you
received only P500.00 is that true?
A Not true.
Q What does this amount represent?
A For the payment of the dress she got from me.
Q When Dr. Te-Velasco testified here in Court she said that you requested her
that your children stay at the Davao Insular Hotel, what do you say to this
testimony of Dr. Velasco?
A Not true.” [18]

She also denied that she purposely accompanied the private respondents to Manila to
help them secure the accreditation of their clinic in Guihing, Hagonoy, Davao del Sur,
and that she stayed with them at the Camelot Hotel in Quezon City. According to her,
she has her own rented house in Quezon City. [19]

Nor can we agree with the differing conclusion of the Court of Appeals that "the
derogatory remarks were obviously made out of ill-will or revenge, in view of the
rumored threat of libel from the complainants according to the Davao del Sur PHA
grapevine." For one, this only shows that both the trial court and the Court of Appeals
could not agree on what the basis for the motive of the petitioner should be. For
another, as indicated above, the private respondents themselves focused their minds
and hearts on the untruthfulness of the violations indicated in the petitioner's report.
Finally, the statement on the threat of a libel charge was evidently based on a rumor
(from the grapevine) which we, nevertheless, find to be relevant to the report since it
serves to forewarn the petitioner's superiors of the risks she and they might meet as a
consequence of her report on the violations and to emphasize the need for PMCC's
firmness and courage to pursue the appropriate charges as may be warranted in the
premises.

All told then, the prosecution in this case was unable to prove malice in fact.

Finally there was, in law, no publication of the questioned report. The rule is settled that
a communication made by a public officer in the discharge of his official duties to
another or to a body of officers having a duty to perform with respect to the subject
matter of the communication does not amount to a publication within the meaning of
the law on defamation. [20]
There was also no publication when Atty. Balasabas, a third person, read the complaint
against Dr. Velasco and the report of the petitioner attached thereto. The private
respondents entrusted these documents to Atty. Balasabas with the request that he give
them to their counsel, Atty. David Montaña. Where the plaintiff himself communicated
or by his acts caused the communication of the libelous matter to a third person, there
was no actionable publication. [21]

WHEREFORE, the instant petition is GRANTED. The assailed decision of the Court of

Appeals in CA-G.R. CR No. 10504 is hereby REVERSED and petitioner DR. MERLE A.
ALONZO is hereby ACQUITTED of the crime charged.

No pronouncement as to costs.

SO ORDERED.

Padilla, (Chairman), Bellosillo, Quaison, and Kapunan, JJ., concur.

[1]
 Annex "A" of Petition; Rollo, 27. Per Associate Justice Jaime M. Lantin, concurred in by
Associate Justices Lorna S. Lombos-De la Fuente and Cancio C. Garcia.

[2]
 Annex "B," Id.; Id., 38.

[3]
 Rollo, 29-31.

[4]
 OR, Criminal Case No. 13698, 134; OR, CA-G.R. CR No. 10504, 6. Per Judge Nicasio O.
de los Reyes.

[5]
 People vs.. Monton, 6 SCRA 801 [1962].

[6]
 RAMON C. AQUINO, The Revised Penal Code, vol. III 1988 ed., 531.

[7]
 AQUINO, op. cit., 540; AMBROSIO PADILLA, Criminal Law (Revised Penal Code), vol. III,
1977 ed., 672.

[8]
 U.S. vs.. Bustos, 37 Phil. 731, 743 [1918]; U.S. vs.. Cañete, 38 Phil. 253 [1918];
People vs.. Monton, supra at note 5; Lu Chu Sing vs.. Lu Tiong Gui, 76 Phil. 669 [1946].

[9]
 Black's Law Dictionary, Fifth ed., 1105.

[10]
 Per Lord Esher M.R. in Pullman vs.. Hill [1902].

[11]
 Sheffil vs.. Van Deusen (1859) 79 Mass. R. at 305, cited in R.C. McEWEN, et al., op. cit.

[12]
 Exhibit "1," Folder of Exhibits, 17.

[13]
 TSN, 2 March 1989, 18-19.
[14]
 12 SCRA 483, 487 [1964].

[15]
 U.S. vs.. Bustos, supra note 8.

[16]
 TSN, 2 March 1989, 25 (emphases supplied).

[17]
 Id., 24 (emphasis supplied).

[18]
 TSN, 20 March 1989, 20-21.

[19]
 Id.

[20]
 53 C.J.S. Libel and Slander § 81 (1948).

[21]
 Id., § 80.

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b.     Art. 353, RPC

2.      Freedom from subsequent punishment
c.        Pita vs. Court of Appeals, 178 SCRA 362

258-A Phil. 134

 EN BANC

[ G.R. No. 80806, October 05, 1989 ]

LEO PITA, DOING BUSINESS UNDER THE NAME AND STYLE OF PINOY PLAYBOY,
PETITIONER, VS. THE COURT OF APPEALS, RAMON BAGATSING, AND NARCISO
CABRERA, RESPONDENTS.

DECISION

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the
decision of the Court of Appeals,[1] rejecting his appeal from the decision of the Regional
Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the
guaranty against unreasonable searches and seizures of the Constitution, as well as its
prohibition against deprivation of property without due process of law.

There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of

the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group,
Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force
of Manila, seized and confiscated from dealers, distributors, newsstand owners and
peddlers along Manila sidewalks, magazines, publications and other reading materials
believed to be obscene, pornographic and indecent and later burned the seized
materials in public at the University belt along C.M. Recto Avenue, Manila, in the
presence of Mayor Bagatsing and several officers and members of various student
organizations.

Among the publications seized, and later burned, was “Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the
writ of preliminary injunction against Mayor Bagatsing and Narciso Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin and/or
restrain said defendants and their agents from confiscating plaintiff's magazines or from
otherwise preventing the sale or circulation thereof claiming that the magazine is a
decent, artistic and educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom of speech and of
the press.

By order dated December 8, 1983 the Court set the hearing on the petition for
preliminary injunction on December 14, 1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy” Magazines, pending hearing on the petition for preliminary injunction in
view of Mayor Bagatsing’s pronouncement to continue the Anti-Smut Campaign. The
Court granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27, 1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscene reading materials on December 1 and
3, 1983, but claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code. In opposing the plaintiff's application for a writ of
preliminary injunction, defendant pointed out that in that anti-smut campaign
conducted on December 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their reading
materials, and that the plaintiff's establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5, 1984, plaintiff filed his Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as to “whether or not the defendants
and/or their agents can without a court order confiscate or seize plaintiff's magazine
before any judicial finding is made on whether said magazine is obscene or not”.

The restraining order issued on December 14, 1983 having lapsed on January 3, 1984,
the plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order would
violate the Resolution of the Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which
provides that a temporary restraining order shall be effective only for twenty days from
date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in

support of his opposition to the issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine’ alleged (sic) seized, confiscated and/or burned by
the defendants, are obscene per se or not".

On January 16, 1984, the Court issued an order granting plaintiff's motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of Preliminary Injunction shall be
resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his
Comment on plaintiff's supplemental Memorandum on January 20, 1984, and plaintiff
filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit.[2]

The Appellate Court dismissed the appeal upon the grounds, among other things, as
follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art. IV). It must be equally conceded, however, that freedom of the press
is not without restraint, as the state has the right to protect society from pornographic
literature that is offensive to public morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications (Sec. 1, Art. 201, Revised Penal
Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that
the right against unreasonable searches and seizures recognizes certain exceptions, as
when there is consent to the search or seizure. (People vs. Malesugui, 63 Phil. 22) or
search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76
Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22
SCRA 857).[3]

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that
they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.[4]

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

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in

generalizing a problem that has grown increasingly complex over the years. Precisely,
the question is: When does a publication have a corrupting tendency, or when can it be
said to be offensive to human sensibilities? And obviously, it is to beg the question to
say that a piece of literature has a corrupting influence because it is obscene, and vice-
versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it
would leave the final say to a hypothetical “community standard” -- whatever that is --
and that the question must supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin,[10] a prosecution

under Article 201 of the Revised Penal Code. Go Pin was also even hazier:

x x x We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibits and art galleries for the cause of art, to be viewed
and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for art's sake but rather
for commercial purposes. In other words, the supposed artistic qualities of said pictures
were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition: and it would not be surprising if the persons who went
to see those pictures and paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for love for excitement,
including the youth who because of their immaturity are not in a position to resist and
shield themselves from the ill and perverting effects of these pictures.[11]

xxx                   xxx                     xxx

As the Court declared, the issue is a complicated one, in which the fine lines have
neither been drawn nor divided. It is easier said than done to say, indeed, that if "the
pictures here in question were used not exactly for art's sake but rather for commercial
purposes,"[12] the pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova,[13] however, that introduced to Philippine jurisprudence

the "redeeming" element that should accompany the work, to save it from a valid
prosecution. We quote:

x x x We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in sheer
nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency,
and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. x x x[14]

Padan y Alova, like Go Pin, however, raised more questions than answers. For one
thing, if the exhibition was attended by "artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes,"[15] could the same legitimately lay claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of [art], and painters and sculptors
might find inspiration,"[16] in it, would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which
has permitted an ad lib of ideas and "two-cents worths" among judges as to what is
obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak,[17] the Court, following trends in

the United States, adopted the test: "Whether to the average person, applying
contemporary standards, the dominant theme of the material taken as a whole appeals
to prurient interest."[18] Kalaw-Katigbak represented a marked departure from Kottinger
in the sense that it measured obscenity in terms of the "dominant theme" of the work,
rather than isolated passages, which were central to Kottinger (although both cases are
agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of
obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to

journey from development to development, which, states one authoritative
commentator (with ample sarcasm), has been as "unstable as it is unintelligible."[19]

Memoirs v. Massachusettes,[20] a 1966 decision, which characterized obscenity as one

"utterly without any redeeming social value,"[21] marked yet another development.

The latest word, however, is Miller v. California,[22] which expressly

abandoned Massachusettes, and established "basic guidelines,"[23] to wit: "(a) whether
'the average person, applying contemporary standards' would find the work, taken as a
whole, appeals to the prurient interest …; (b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value."[24]

(A year later, the American Supreme Court decided Hamling v. United States,[25] which

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

In the case at bar, there is no challenge on the right of the State, in the legitimate
exercise of police power, to suppress smut -- provided it is smut. For obvious reasons,
smut is not smut simply because one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five decades ago, is not
necessarily repulsive to the present generation. James Joyce and D. H. Lawrence were
censored in the thirties yet their works are considered important literature today.
[29]
 Goya's La Maja desnuda was once banned from public exhibition but now adorns the
world's most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of
opinion. As we said earlier, it is the divergent perceptions of men and women that have
probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not
been, an easy one to answer, as it is far from being a settled matter. We share Tribe's
disappointment over the discouraging trend in American decisional law on obscenity as
well as his pessimism on whether or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a
"perfect" definition of "obscenity", if that is possible, as evolving standards for proper
police conduct faced with the problem, which, after all, is the plaint specifically raised in
the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has consistently been on
the side of the exercise of the right, barring a "clear and present danger" that would
warrant State interference and action.[30] But, so we asserted in Reyes v. Bagatsing,
[31]
 "the burden to show the existence of grave and imminent danger that would justify
adverse action ... lies on the ... authorit(ies)."[32]

"There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger."[33] "It is essential for the validity of ...
previous restraint or censorship that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety may require."[34]
"To justify such a limitation, there must be proof of such weight and sufficiency to
satisfy the clear and present danger test."[35]

The above disposition must not, however, be taken as a neat effort to arrive at a
solution -- so only we may arrive at one -- but rather as a serious attempt to put the
question in its proper perspective, that is, as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues,
mainly, due process and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political

speech, the presumption is that the speech may validly be said. The burden is on the
State to demonstrate the existence of a danger, a danger that must not only be: (1)
clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts
notwithstanding that (absence of evidence of a clear and present danger), it must come
to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof
to justify a ban and to warrant confiscation of the literature for which mandatory
injunction had been sought below. First of all, they were not possessed of a lawful court
order: (1) finding the said materials to be pornography, and (2) authorizing them to
carry out a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that … freedom of the press is not without
restraint, as the state has the right to protect society from pornographic literature that
is offensive to public morals."[36] Neither do we. But it bring us back to square one: were
the "literature" so confiscated "pornographic"? That "we have laws punishing the
author, publisher and sellers of obscene publications (Sec. 1, Art. 201, Revised Penal
Code, as amended by P.D. No. 960 and P.D. No. 969),"[37] is also fine, but the question,
again, is: Has the petitioner been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no
license to seize property in disregard of due process. In Philippine Service Exporters, Inc.
v. Drilon,[38] we defined police power as “state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general
welfare.”[39] Presidential Decrees Nos. 960 and 969 are, arguably, police power
measures, but they are not, by themselves, authorities for high-handed acts. They do
not exempt our law enforcers, in carrying out the decree of the twin presidential
issuances (Mr. Marcos’), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down procedures for implementation. We
quote:

Sec. 2. Disposition of the Prohibited Articles. - The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
 (a) Upon conviction of the offender, to be forfeited in favor of the
Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an
acquittal, the obscene/immoral literature, films, prints, engravings,
sculptures, paintings or other materials and articles involved in the
violation referred to in Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of

Constabulary may, within fifteen (15) days after his receipt of a copy of
the decision, appeal the matter to the Secretary of National Defense for
review. The decision of the Secretary of National Defense shall be final
and unappealable. (Sec. 2, PD NO. 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. - Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of
Section 1 hereof, the penalty as provided herein shall be imposed in the maximum
period and, in addition, the accessory penalties provided for in the Revised Penal Code,
as amended, shall likewise be imposed.[40]

Under the Constitution,[41] on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall not be violated, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as may
be authorized by law, after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched,
and the persons or things to be seized.[42]

It is basic that searches and seizures may be done only through a judicial warrant,
otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of
Staff, AFP,[43] we countermanded the orders of the Regional Trial Court authorizing the
search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies,
by reason of a defective warrant. We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the
instant case involves an obscenity rap makes it no different from Burgos, a political case,
because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the
Rules then prevailing), provide:

SEC. 12. Search without warrant of person arrested.-- A person charged with an offense

may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense.[44]
but as the provision itself suggests, the search must have been an incident to a lawful
arrest, and the arrest must be on account of a crime committed. Here, no party has
been charged, nor are such charges being readied against any party, under Article 201,
as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision
which would free the accused of all criminal responsibility because there had been no
warrant,"[45] and that "violation of penal law [must] be punished."[46] For starters,
there is no "accused" here to speak of, who ought to be "punished". Second, to say that
the respondent Mayor could have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in

their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are
"obscene”, and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not
the properties seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable

statutes, or remedies against abuse of official power under the Civil Code[47] or the
Revised Penal Code.[48]

WHEREFORE, the petition is GRANTED. The decision of the respondent court is

REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the
search and seizure have been destroyed, the Court declines to grant affirmative relief.
To that extent, the case is moot and academic.

SO ORDERED.

Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino,

Medialdea,  and Regalado, JJ., concur.
Fernan, C.J., Narvasa, and  Feliciano, JJ., in the result.
Gutierrez, Jr.,  on leave.

[1]
 Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez, Pedro A., JJ., Concurring.
[2]
 Rollo, 30-31.
[3]
 Id., 41.
[4]
 Id., 12-13.
[5]
 45 Phil. 352 (1923), per Malcolm, J.
[6]
 Supra, 356.
[7]
 Supra, 357.
[8]
 Supra.
[9]
 Supra, 359.
[10]
 97 Phil. 418 (1955), per Montemayor, J.
[11]
 Supra., 419.
[12]
 Supra.
[13]
 101 Phil. 749 (1957).
[14]
 Supra, 752.
[15]
 Go Pin, supra.
[16]
 Padan y Alova, supra.
[17]
 No. 69500, July 21, 1985, 137 SCRA 717, per Fernando, C.J.
[18]
 Supra, 726, citing Roth v. United States, 354 US 476 (1957).
[19]
 TRIBE, AMERICAN CONSTITUTIONAL LAW 656 (1978 ed.)
[20]
 383 US 410 (1966).
[21]
 See TRIBE, id., 661.
[22]
 413 US 15 (1973).
[23]
 Supra, 24.
[24]
 Supra.
[25]
 418 US 87 (1974).
[26]
 418 US 153 (1974).
[27]
 TRIBE, id.
[28]
 Id., 661-662; emphasis in the original.
[29]
 See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie
version of Lady Chatterley's Lover. See also United States v. One Book called "Ulysses", 5
F. Supp. 182 (1934).
[30]
 Gonzales vs. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835; Reyes v. Bagatsing,
No. 65366, November 9, 1983, 125 SCRA 553.
[31]
 Supra
[32]
 Supra, 572 per Teehankee, J., Concurring; emphasis in the original.
[33]
 Supra, emphasis in the original.
[34]
 Supra, emphasis in the original.
[35]
 Supra, emphasis in the original.
[36]
 Rollo, id., 41.
[37]
 Id. The question whether or not Presidential Decrees Nos. 960 and 969 are
unconstitutional is another thing; we will deal with the problem in the proper hour and
in the appropriate case. Judicial restraint is a bar to a consideration of the problem that
does not exist, or if it exists, it exists but in the abstract.
[38]
 G. R. No. 81958, June 30, 1988.
[39]
 Supra, at 3.
[40]
 Pres. Decree No. 960, sec. 2 as amended by Pres. Decree No. 969.
[41]
 CONST. (1973), the Charter then in force.
[42]
 Supra, art. IV, sec. 3.
[43]
 No. 64266, December 26, 1984, 133 SCRA 800.
[44]
 RULES OF COURT (1964). Rule 126, sec. 12. As amended, the provision now reads as
follows: "SEC. 12. Search incident to lawful arrest. -- A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant." [RULES ON CRIMINAL PROCEDURE
(1985 rev.), Rule 126, sec. 12.]
[45]
 Rollo, id., 51.
[46]
 Id.
[47]
 CIVIL CODE, art. 32. The provision states: "ART. 32. Any public officer or employee, or
any private individual, who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and liberties of another person
shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for
public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become member of associations or societies for purposes
not contrary to law;
(13) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or
from being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person confessing
becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment,
unless the same is imposed or inflicted in accordance with a statute which has
not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act
or omission constitutes a criminal offense, the aggrieved party has a right to commence
an entirely separate and distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if the latter be
instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act
or omission constitutes a violation of the Penal Code or other penal statute."
[48]
 REV. PEN. CODE. arts. 129, 130. The provisions state:

"ART. 129. Search warrants maliciously obtained and abuse in the service of
those legally obtained. - In addition to the liability attaching to the offender for
commission of any other offense, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not exceeding P1,000 pesos shall
be imposed upon any public officer or employee who shall procure a search warrant
without just cause, or, having legally procured the same, shall exceed his authority or
use unnecessary severity in executing the same.

The acts, committed by a public officer or employee, punishable by the above

article are:

(1) Procuring a search warrant without just cause:

(2) Exceeding one's authority or using unnecessary severity in the
execution of a legally procured search warrant."

"ART. 130. Searching domicile without witnesses. - The penalty of arresto mayor
in its medium and maximum periods shall be imposed upon a public officer or employee
who, in cases where a search is proper, shall search the domicile, papers or other
belongings of any person, in the absence of the latter, any member of his family, or in
their default, without the presence of two witnesses residing in the same locality.

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3.      Test of valid government interference

a.      Clear and present danger
a.i.          Viva Production vs. CA, March 13, 1997

336 Phil. 642

 THIRD DIVISION

[ G.R. No. 123881, March 13, 1997 ]

VIVA PRODUCTIONS, INC., PETITIONER, VS. COURT OF APPEALS AND HUBERT J.P.
WEBB, RESPONDENTS.

DECISION

MELO, J.:

Assailed in the petition before us are the decision and resolution of respondent Court of
Appeals sustaining both the order of the Regional Trial Court of the National Capital
Judicial Region (Parañaque, Branch 274 — hereinafter referred to as the Parañaque
court) restraining "the exhibition of the movie 'The Jessica Alfaro Story' at its scheduled
premiere showing at the New Frontier Theater on September 11, 1995 at 7:30 in the
evening and at its regular public exhibition beginning September 13, 1995, as well as to
cease and desist from promoting and marketing of the said movie" (Order; p. 96, Rollo);
and the order of the Regional Trial Court also of the National Capital Judicial Region
(Makati, Branch 58 — hereinafter referred to as the Makati court) issuing a writ of
preliminary injunction "enjoining petitioner from further proceeding, engaging, using or
implementing the promotional, advertising and marketing programs for the movie
entitled 'The Jessica Alfaro Story' and from showing or causing the same to be shown or
exhibited in all theaters in the entire country UNTIL after the final termination and
logical conclusion of the trial in the criminal action now pending before the Parañaque
Regional Trial Court" (Order; p. 299, Rollo).

Without filing any motion for reconsideration with the two regional trial courts,
petitioner elevated the matter to respondent Court of Appeals via a petition
for certiorari, with an urgent prayer for the issuance of a temporary restraining order
and a writ of preliminary injunction, thereafter docketed and consolidated as C.A. G.R.
No. SP-38407 and SP-38408. The factual antecedents were summarized by respondent
court in this manner:

Both petitions are inexorably linked to the Rape with Homicide case, in connection with
what is now known as the "Vizconde Massacre". On June 19, 1995, after the dismissal of
two (2) sets of suspects, another group of nine (9), private respondent Hubert J.P. Webb
included were charged by the National Bureau of Investigation (NBI) with the crime of
Rape With Homicide, on the strength of a sworn statement of Ma. Jessica M. Alfaro,
which complaint was docketed as I.S. No. 95- 402 before the Department of Justice.

It is of public knowledge, nay beyond cavil, that the personalities involved in this
development of the Vizconde Massacre engendered a media frenzy. For at least two
successive months, all sorts of news and information about the case, the suspects and
witnesses occupied the front pages of newspapers. Focus of attention was Ma. Jessica
M. Alfaro (Alfaro, for short), alluded to as the NBI star witness. Offered a movie contract
by Viva Productions, Inc. for the filming of her life story, she inked with the latter the
said movie contract while the said case (I.S. 95-402) was under investigation by the
Department of Justice.

On August 10, 1995, after the conclusion of preliminary investigation before the
Department of Justice, an Information for Rape With Homicide was filed against Hubert
J.P. Webb and eight (8) others, docketed as Criminal Case No. 95-404 before the
Regional Trial Court of Parañaque, Branch 274.

On August 25, 1995, the private respondent sent separate letters to Viva Productions,
Inc. and Alfaro, warning them that the projected showing of subject movie on the life
story of Alfaro would violate the sub judice rule, and his (Hubert J.P. Webb's)
constitutional rights as an accused in said criminal case. But such letters from private
respondent notwithstanding, petitioner persisted in promoting, advertising and
marketing "The Jessica Alfaro Story" in the print and broadcast media and, even on
billboards. Premier showing of the movie in question was then scheduled for September
11, 1995, at the New Frontier Theater, with regular public exhibition thereof set for
September 13, 1995, in some sixty (60) theaters.

And so, on September 6, 1995, Hubert J.P. Webb, the herein private respondent, filed a
Petition for Contempt in the same Criminal Case No. 95-404; complaining that the acts
of petitioner and Alfaro concerning "The Jessica Alfaro Story" movie were
contumacious, within the contemplation of Section 3, Rule 71 of the Revised Rules of
Court. Following the full day of hearing on September 8, 1995, and viewing of the
controversial movie itself, the respondent Regional Trial Court of Parañaque came out
with its Cease and Desist Order aforequoted.

On September 8, 1995, respondent Hubert J.P. Webb instituted a case for Injunction
With Damages, docketed as Civil Case No. 951365 before the Regional Trial Court of
Makati City, Branch 58, which court issued, ex parte, before the matter could be heard
on notice, the Temporary Restraining Order under attack.

(pp. 61-62, Rollo.)

On December 13, 1995, respondent court dismissed the consolidated petitions.

Following the denial of petitioner's motion for reconsideration, the instant petition was
filed wherein the following issues are ventilated:

I
WHETHER OR NOT THE PARAÑAQUE COURT CAN TOTALLY DISREGARD AND
INDISCRIMINATELY CURTAIL PETITIONER'S CONSTITUTIONAL RIGHT TO FREEDOM OF
EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE OF A CLEAR AND PRESENT
DANGER.

II

WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE COGNIZANCE OF

THE INJUNCTION CASE FILED BEFORE IT WHICH IS IDENTICAL TO THE CASE PENDING
BEFORE THE PARAÑAQUE COURT WHICH HAS ALREADY ACQUIRED JURISDICTION OVER
THE ACT COMPLAINED OF.

III

WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING BY FILING

TWO (2) CASES WITH EXACTLY THE SAME FACTUAL SET-UP, ISSUES INVOLVED AND
RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT COURTS OF COORDINATE JURISDICTION.

(p. 20, Rollo.)

We rule to grant the petition, reversing and setting aside the orders of respondent Court
of Appeals, thus annulling and setting aside the orders of the Makati court and lifting the
restraining order of the Parañaque court for forum shopping.

The key issue to be resolved is whether or not respondent court ruled correctly in
upholding the jurisdiction of the Makati court to take cognizance of the civil action for
injunction filed before it despite the fact that the same relief, insofar as preventing
petitioner from showing of the movie is concerned, had also been sought by the same
private respondent before the Parañaque court in proceedings for contempt of court.
Corollarily, it may be asked if private respondent and/or his counsel can be held guilty of
forum shopping.

Petitioner contends that the Makati court has no jurisdiction to take cognizance of the
action for damages because the same had been impliedly instituted in the contempt
proceedings before the Parañaque court, which after acquiring and exercising
jurisdiction over the case, excludes all other courts of concurrent jurisdiction from
taking cognizance of the same. Moreover, citing Circular No. 28-91, petitioner accuses
private respondent of forum shopping.

Private respondent, on the other hand, posits that the Makati court's jurisdiction cannot
be validly and legally disputed for it is invested with authority, by express provision of
law, to exercise jurisdiction in the action for damages, as may be determined by the
allegations in the complaint. The temporary restraining order and writ of injunction
issued by the Makati court are mere provisional remedies expressly sanctioned under
Rule 58 of the Revised Rules of Court. He also maintains that there is no forum shopping
because there is no identity of causes of action. Besides, the action for damages before
the Makati court cannot be deemed instituted in the contempt proceedings before the
Parañaque court because the rightful parties therein are only the court itself, as the
offended party, and petitioner and witness Jessica Alfaro, as accused.

We find the shrewd and astute maneuverings of private respondent ill- advised. It will
not escape anybody's notice that the act of filing the supposed action for injunction with
damages with the Makati court, albeit a separate and distinct action from the contempt
proceedings then pending before the Parañaque court, is obviously and solely intended
to obtain the preliminary relief of injunction so as to prevent petitioner from exhibiting
the movie on its premiere showing on September 11, 1995 and on its regular showing
beginning September 13, 1995. The alleged relief for damages becomes a mere
subterfuge to camouflage private respondent's real intent and to feign the semblance of
a separate and distinct action from the contempt proceedings already filed and on-going
with the Parañaque court.

Significantly, the primordial issue involved in the Makati court and the Parañaque court
is one and the same — whether or not the showing of the movie "The Jessica Alfaro
Story" violates the sub-judice rule. Should the Parañaque court find so, it would have no
alternative but to enjoin petitioner from proceeding with the intended contumacious
act lest it may be cited for contempt. In the case of the Makati court, if it finds such
violation, it will have to enjoin petitioner from proceeding with the prejudicial act lest it
may be held liable for damages.

The query posed before respondent court, simply stated, is whether or not the
Parañaque court and the Makati court, obviously having concurrent jurisdiction over the
subject matter, can both take cognizance of the two actions and resolve the same
identical issue on the alleged violation of the sub judice rule. Respondent court erred in
ruling in the affirmative. This is the very evil sought to be avoided by this Court in issuing
Circular No. 28-91 which pertinently reads:

The attention of the Court has been called to the filing of multiple petitions and
complaints involving the same issues in the Supreme Court, the Court of Appeals or
different Divisions thereof, or any other tribunal or agency, with the result that said
tribunals or agency have to resolve the same issues. (Emphasis supplied.)

On February 8, 1994, this was magnified through Administrative Circular No. 04-94,
effective on April 1, 1994, to include all courts and agencies other than the Supreme
Court and the Court of Appeals, to prevent forum shopping or the multiple filing of such
pleadings even at that level. Sanctions for violation thereof are expressly stated as
follows:
(2)     Any violation of this Circular shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after hearing.
However, any clearly willful and deliberate forum shopping by any party and his counsel
through the filing of multiple complaints or other initiatory pleadings to obtain favorable
action shall be a ground for summary dismissal thereof and shall constitute direct
contempt of court. Furthermore, the submission of a false certification or non-
compliance with the undertaking therein, as provided in Paragraph 1 hereof, shall
constitute indirect contempt of court, without prejudice to disciplinary proceedings
against counsel and the filing of a criminal action against the guilty party.

Private respondent's intention to engage in forum shopping becomes manifest with

undoubted clarity upon the following considerations. Notably, if not only to ensure the
issuance of an injunctive relief, the significance of the action for damages before the
Makati court would be nil. What damages against private respondent would there be to
speak about if the Parañaque court already enjoins the performance of the very same
act complained of in the Makati court? Evidently, the action for damages is premature if
not for the preliminary injunctive relief sought. Thus, we find grave abuse of discretion
on the part of the Makati court, being a mere co-equal of the Parañaque court, in not
giving due deference to the latter before which the issue of the alleged violation of the
sub-judice rule had already been raised and submitted. In such instance, the Makati
court, if it was wary of dismissing the action outrightly under Administrative Circular No.
04-94, should have, at least, ordered the consolidation of its case with that of the
Parañaque court, which had first acquired jurisdiction over the related case in
accordance with Rule 31 of the Revised Rules of Court (Superlines Trans. Co. vs. Victor,
et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap, 126 SCRA 500 [1983]), or it
should have suspended the proceedings until the Parañaque court may have ruled on
the issue (Salazar vs. CFI of Laguna, 64 Phil. 785 [1937]).

Ordinarily, where a litigant sues the same party against whom another action or actions
for the alleged violation of the same right and the enforcement of the same relief or
reliefs is or are still pending, any one action may be dismissed on the ground of litis
pendentia and a final judgment in any one case would constitute res judicata on the
other. In either instance, there is a clear and undeniable case of forum shopping,
another ground for the summary dismissal of both actions, and at the same time an act
of direct contempt of court, which includes a possible criminal prosecution and
disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA 34 [1986]).

In First Philippine International Bank vs. Court of Appeals (252 SCRA 259 [1996]), this
Court, through the same herein Division, per Justice Panganiban, found therein
petitioner bank guilty of forum shopping because—

. . . the objective or the relief being sought, though worded differently, is the same,
namely, to enable the petitioner Bank to escape from the obligation to sell the property
to respondent. In Danville Maritime vs. Commission on Audit, this Court ruled that the
filing by any party of two apparently different actions, but with the same objective,
constituted forum shopping:
"In the attempt to make the two actions appear to be different, petitioner impleaded
different respondents therein — PNOC in the case before the lower court and the COA
in the case before this Court and sought what seems to be different reliefs. Petitioner
asks this Court to set aside the questioned letter-directive of the COA dated October 10,
1988 and to direct said body to approve the Memorandum of Agreement entered into
by and between the PNOC and petitioner, while in the complaint before the lower court
petitioner seeks to enjoin the PNOC from conducting a rebidding and from selling to
other parties the vessel "T/T Andres Bonifacio," and for an extension of time for it to
comply with the paragraph 1 of the memorandum of agreement and damages. One can
see that although the relief prayed for in the two (2) actions are ostensibly different, the
ultimate objective in both actions is the same, that is, the approval of the sale of vessel
in favor of petitioner, and to overturn the letter directive of the COA of October 10,
1988 disapproving the sale."

(p. 285)

In Palm Avenue Realty Development Corporation vs. PCGG (153 SCRA 579 [1987]), we
have these words from then Justice, now Chief Justice Narvasa:

. . . the filing by the petitioners of the instant special civil action for certiorari and
prohibition in this Court despite the pendency of their action in the Makati Regional
Trial Court, is a species of forum shopping. Both actions unquestionably involve the
same transactions, the same essential facts and circumstances. The petitioners' claim of
absence of identity simply because the PCGG had not been impleaded in the RTC suit,
and the suit did not involve certain acts which transpired after its commencement, is
specious. In the RTC action, as in the action before this Court, the validity of the contract
to purchase and sell of September 1, 1986, i.e., whether or not it had been efficaciously
rescinded, and the propriety of implementing the same . . . were the basic issues. So,
too, the relief was the same: the prevention of such implementation and/or the
restoration of the status quo ante. When the acts sought to be restrained took place
anyway despite the issuance by the Trial Court of a temporary restraining order, the RTC
suit did not become functus officio. It remained an effective vehicle for obtention of
relief; and petitioners' remedy in the premises was plain and patent; the filing of an
amended and supplemental pleading in the RTC suit, so as to include the PCGG as
defendant and seek nullification of the acts sought to be enjoined but nonetheless
done. The remedy was certainly not the institution of another action in another forum
based on essentially the same facts. The adoption of this latter recourse renders the
petitioner amenable to disciplinary action and both their actions, in this Court as well as
in the Court a quo dismissible.

(pp. 591-592)
Thus, while we might admit that the causes of action before the Makati court and the
Parañaque court are distinct, and that private respondent cannot seek civil indemnity in
the contempt proceedings, the same being in the nature of criminal contempt, we
nonetheless cannot ignore private respondent's intention of seeking exactly identical
reliefs when it sought the preliminary relief of injunction in the Makati court. As earlier
indicated, had private respondent been completely in good faith, there would have
been no hindrance in filing the action for damages with the regional trial court of
Parañaque and having it consolidated with the contempt proceedings before Branch
274, so that the same issue on the alleged violation of the sub judice rule will not have
to be passed upon twice, and there would be no possibility of having two courts of
concurrent jurisdiction making two conflicting resolutions.

Yet from another angle, it may be said that when the Parañaque court acquired
jurisdiction over the said issue, it excluded all other courts of concurrent jurisdiction
from acquiring jurisdiction over the same. To hold otherwise would be to risk instances
where courts of concurrent jurisdiction might have conflicting orders. This will create
havoc and result in an extremely disordered administration of justice. Therefore, even
on the assumption that the Makati court may acquire jurisdiction over the subject
matter of the action for damages, without prejudice to the application of Administrative
Circular No. 04-94, it cannot nonetheless acquire jurisdiction over the issue of whether
or not petitioner has violated the sub judice rule. At best, the Makati court may hear the
case only with respect to the alleged injury suffered by private respondent after the
Parañaque court shall have ruled favorably on the said issue.

In fine, applying the sanction against forum shopping under Administrative Circular No.
04-94, the action filed by private respondent with the Makati court, may be ordered
summarily dismissed. Considering the nature and purpose of contempt proceedings
before the Parañaque court and the public policy of protecting the integrity of the court,
we reserve the imposition of a similar sanction to dismiss the same and leave that
matter to the discretion of the presiding judge concerned, although it is worthy to stress
that insofar as injunctive relief against the showing of the movie before the Parañaque
court is concerned, we resolved to also dismiss the same by reason of forum shopping.
The sanction of twin dismissal under Buan vs. Lopez is applicable. This, however, is
without prejudice to the other aspects of the contempt proceedings which may still be
pending before the Parañaque court.

In view of the foregoing disposition, we find no further need to resolve the issue of
whether or not there was valid and lawful denial by both lower courts of petitioner's
right to free speech and expression. Suffice it to mention, however, that the Court takes
note of the rather unreasonable period that had elapsed from the time of the issuance
of the restraining order by the Parañaque court up to the writing of this decision. The
Court also notes that the order of the said court specifically failed to lay down any
factual basis constituting a clear and present danger which will justify prior restraint of
the constitutionally protected freedom of speech and expression save its plea for time
to hear and resolve the issues raised in the petition for contempt.

WHEREFORE, the assailed decision and order of respondent court are hereby SET
ASIDE, and a new one entered declaring null and void all orders of Branch 58 of the
Regional Trial Court of the National Capital Judicial Region stationed in Makati City in its
Civil Case No. 95-1365 and forthwith dismissing said case, and declaring the order of the
Regional Trial Court of the same National Capital Judicial Region stationed in Parañaque
(Branch 274), functus officio insofar as it restrains the public showing of the movie "The
Jessica Alfaro Story."

Private respondent and his counsel are admonished to refrain from repeating a similar
act of forum shopping, with the stern warning that any repetition of similar acts will be
dealt with more severely.
SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Francisco, and Panganiban, JJ.,  concur.

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3.      Test of valid government interference

a.      Clear and present danger
a.ii.        INC vs. CA, 259 SCRA 529

328 Phil. 893

EN BANC

[ G.R. No. 119673, July 26, 1996 ]

 IGLESIA NI CRISTO (INC.), PETITIONER, VS. THE HONORABLE COURT OF APPEALS,
BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION AND HONORABLE
HENRIETTA S. MENDEZ, RESPONDENTS.

DECISION

PUNO, J.:

This is a petition for review of the Decision dated March 24, 1995 of the respondent
Court of Appeals affirming the action of the respondent Board of Review for Motion
Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television

program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on
Channel 13 every Sunday. The program presents and propagates petitioner’s religious
beliefs, doctrines and practices often times in comparative studies with other religions.

Sometime in the months of September, October and November 1992, petitioner

submitted to the respondent Board of Review for Motion Pictures and Television the
VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the
series as "X" or not for public viewing on the ground that they "offend and constitute an
attack against other religions which is expressly prohibited by law."

Petitioner pursued two (2) courses of action against the respondent Board. On
November 28, 1992, it appealed to the Office of the President the classification of its TV
Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the
President reversed the decision of the respondent Board. Forthwith, the Board allowed
Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil Case No.
Q-92-14280, with the RTC, NCR, Quezon City.[1] Petitioner alleged that the respondent
Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner
to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program
Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power
under P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioner’s prayer for a writ of
preliminary injunction. The parties orally argued and then marked their documentary
evidence. Petitioner submitted the following as its exhibits, viz.:

(1) Exhibit "A", respondent Board’s Voting Slip for Television showing its September 9,
1992 action on petitioner’s Series No. 115 as follows:[2]
REMARKS:

There are some inconsistencies in the particular program as it is very surprising for this
program to show series of Catholic ceremonies and also some religious sects and using it
in their discussion about the bible. There are remarks which are direct criticism which
affect other religions.

Need more opinions for this particular program. Please subject to more opinions.

(2) Exhibit "A-1", respondent Board’s Voting Slip for Television showing its September
11, 1992 subsequent action on petitioner’s Series No. 115 as follows:[3]

REMARKS:

This program is criticizing different religions, based on their own interpretation of the
Bible.

We suggest that the program should delve on explaining their own faith and beliefs and
avoid attacks on other faith.

(3) Exhibit "B", respondent Board’s Voting Slip for Television showing its October 9, 1992
action on petitioner’s Series No. 119, as follows:[4]

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

(4) Exhibit "C", respondent Board’s Voting Slip for Television showing its October 20,
1992 action on petitioner’s Series No. 121 as follows:[5]

REMARKS:

I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that they are right and the
rest are wrong, which they clearly present in this episode.

(5) Exhibit "D", respondent Board’s Voting Slip for Television showing its November 20,
1992 action on petitioner’s Series No. 128 as follows:[6]

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic and Protestant’s
beliefs.

We suggest a second review.

(6) Exhibits "E", "E-1", petitioner’s block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.[7]

(7) Exhibit "F", petitioner’s Airtime Contract with Island Broadcasting Corporation.[8]

(8) Exhibit "G", letter dated December 18, 1992 of former Executive Secretary Edelmiro
A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the
respondent Board which x-rated the showing of petitioner’s Series No. 129. The letter
reads in part:

"xxx           xxx          xxx

The television episode in question is protected by the constitutional guarantee of free

speech and expression under Article III, Section 4 of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee."

(9) Exhibits "H", "H-1", letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board x-
rating petitioner’s Series No. 128.

On its part, respondent Board submitted the following exhibits, viz.:

(1) Exhibit "1", Permit Certificate for Television Exhibition No. 15181 dated December
18, 1992 allowing the showing of Series No. 128 under parental guidance.

(2) Exhibit "2", which is Exhibit "G" of petitioner.

(3) Exhibit "3", letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the
Christian Era Broadcasting Service which reads in part:
xxx

In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be
informed that the Board was constrained to deny your show a permit to exhibit. The
material involved constitute an attack against another religion which is expressly
prohibited by law. Please be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioner’s bond of P10,000.00.

The trial court set the pre-trial of the case and the parties submitted their pre-trial
briefs.[9] The pre-trial briefs show that the parties’ evidence is basically the evidence
they submitted in the hearing of the issue of preliminary injunction. The trial of the case
was set and reset several times as the parties tried to reach an amicable accord. Their
efforts failed and the records show that after submission of memoranda, the trial court
rendered a Judgment,[10] on December 15, 1993, the dispositive portion of which reads:

"x x x

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for

Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of ‘Ang Iglesia ni Cristo’ program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking
other existing religions in showing ‘Ang Iglesia ni Cristo’ program.

SO ORDERED."

Petitioner moved for reconsideration[11] praying: (a) for the deletion of the second
paragraph of the dispositive portion of the Decision, and (b) for the Board to be
perpetually enjoined from requiring petitioner to submit for review the tapes of its
program. The respondent Board opposed the motion.[12] On March 7, 1993, the trial
court granted petitioner’s Motion for Reconsideration. It ordered:[13]

"x x x

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Court’s Order dated December 15, 1993, directing petitioner to refrain from offending
and attacking other existing religions in showing ‘Ang Iglesia ni Cristo’ program is hereby
deleted and set aside. Respondents are further prohibited from requiring petitioner
Iglesia ni Cristo to submit for review VTR tapes of its religious program ‘Ang Iglesia ni
Cristo.’"

Respondent Board appealed to the Court of Appeals after its motion for reconsideration
was denied.[14]
On March 5, 1995, the respondent Court of Appeals[15] reversed the trial court. It ruled
that: (1) the respondent board has jurisdiction and power to review the TV program
"Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave abuse of
discretion when it denied permit for the exhibition on TV of the three series of "Ang
Iglesia ni Cristo" on the ground that the materials constitute an attack against another
religion. It also found the series "indecent, contrary to law and contrary to good
customs."

In this petition for review on certiorari under Rule 45, petitioner raises the following
issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ‘ANG
IGLESIA NI CRISTO’ PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF
RELIGIOUS EXERCISE AND EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT
BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ‘ANG IGLESIA NI CRISTO’ PROGRAM
IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT
POSES A CLEAR AND PRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE
‘ANG IGLESIA NI CRISTO,’ A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY
TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board has
the power to review petitioner’s TV program "Ang Iglesia ni Cristo," and (2) second,
assuming it has the power, whether it gravely abused its discretion when it prohibited
the airing of petitioner’s religious program, series Nos. 115, 119 and 121, for the reason
that they constitute an attack against other religions and that they are indecent,
contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under P.D. No.
1986. Its Section 3 pertinently provides:

"Sec. 3 Powers and Functions. - The BOARD shall have the following functions, powers
and duties:

xxx                      xxx                         xxx

b) To screen, review and examine all motion pictures as herein defined, television

programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution for television broadcast or for general viewing, imported or produced in the
Philippines and in the latter case, whether they be for local viewing or for export.

c) To approve, delete objectionable portion from and/or prohibit the importation,

exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast of the motion pictures, television programs and publicity materials, subject
of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature (emphasis ours).

The law gives the Board the power to screen, review and examine all "television
programs." By the clear terms of the law, the Board has the power to "approve, delete x
x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television
programs x x x." The law also directs the Board to apply "contemporary Filipino cultural
values as standard" to determine those which are objectionable for being "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime."

Petitioner contends that the term "television program" should not include religious
programs like its program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged,
will contravene Section 5, Article III of the Constitution which guarantees that "no law
shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed."

We reject petitioner’s submission which need not set us adrift in a constitutional voyage
towards an uncharted sea. Freedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present. We have affirmed this preferred
status well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with
the common good."[16] We have also laboriously defined in our jurisprudence the
intersecting umbras and penumbras of the right to religious profession and worship. To
quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist:[17]

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on one’s beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter.
He may indulge his own theories about life and death; worship any god he chooses, or
none at all; embrace or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the immortality of his soul — in
fact, cherish any religious conviction as he and he alone sees fit. However absurd his
beliefs may be to others, even if they be hostile and heretical to the majority, he has full
freedom to believe as he pleases. He may not be required to prove his beliefs. He may
not be punished for his inability to do so. Religion, after all, is a matter of faith. ‘Men
may believe what they cannot prove.’ Every one has a right to his beliefs and he may not
be called to account because he cannot prove what he believes.
(2) Freedom to Act on One’s Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as
this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is error
to think that the mere invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The inherent police power can be
exercised to prevent religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not merely for the purpose
of evading the reasonable requirements or prohibitions of the law.

Justice Frankfurter put it succinctly: ‘The constitutional provision on religious freedom

terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.

Accordingly, while one has full freedom to believe in Satan, he may not offer the object
of his piety a human sacrifice, as this would be murder. Those who literally interpret the
Biblical command to "go forth and multiply" are nevertheless not allowed to contract
plural marriages in violation of the laws against bigamy. A person cannot refuse to pay
taxes on the ground that it would be against his religious tenets to recognize any
authority except that of God alone. An atheist cannot express his disbelief in acts of
derision that wound the feelings of the faithful. The police power can be validly asserted
against the Indian practice of the suttee born of deep religious conviction, that calls on
the widow to immolate herself at the funeral pile of her husband.

We thus reject petitioner’s postulate that its religious program is per se beyond review
by the respondent Board. Its public broadcast on TV of its religious program brings it out
of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. A laissez
faire policy on the exercise of religion can be seductive to the liberal mind but history
counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious differences. Our
country is still not safe from the recurrence of this stultifying strife considering our
warring religious beliefs and the fanaticism with which some of us cling and claw to
these beliefs. Even now, we have yet to settle the near century old strife in Mindanao,
the roots of which have been nourished by the mistrust and misunderstanding between
our Christian and Muslim brothers and sisters. The bewildering rise of weird religious
cults espousing violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue
to subject any act pinching the space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the irrationality of man. For
when religion divides and its exercise destroys, the State should not stand still.

It is also petitioner’s submission that the respondent appellate court gravely erred when
it affirmed the ruling of the respondent Board x-rating its TV Program Series Nos. 115,
119, 121 and 128. The records show that the respondent Board disallowed the program
series for "attacking" other religions. Thus, Exhibits "A", "A-1", (respondent Board’s
Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for "x x x
criticizing different religions, based on their own interpretation of the Bible." They
suggested that the program should only explain petitioner’s "x x x own faith and beliefs
and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-rated
because "the Iglesia ni Cristo insists on the literal translation of the bible and says that
our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so. This is intolerance x x x." Exhibit "C" shows that
Series No. 121 was x-rated "x x x for reasons of the attacks, they do on, specifically, the
Catholic religion. x x x (T)hey can not tell, dictate any other religion that they are right
and the rest are wrong x x x." Exhibit "D" also shows that Series No. 128 was not
favorably recommended because it "x x x outrages Catholic and Protestant’s beliefs." On
second review, it was x-rated because of its "unbalanced interpretations of some parts
of the Bible."[18] In sum, the respondent Board x-rated petitioner’s TV program series
Nos. 115, 119, 121 and 128 because of petitioner’s controversial biblical interpretations
and its "attacks" against contrary religious beliefs. The respondent appellate court
agreed and even held that the said "attacks" are indecent, contrary to law and good
customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints
on speech, including religious speech. Hence, any act that restrains speech is hobbled by
the presumption of invalidity and should be greeted with furrowed brows.[19] It is the
burden of the respondent Board to overthrow this presumption. If it fails to discharge
this burden, its act of censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for
"attacking" other religions, especially the Catholic church. An examination of the
evidence, especially Exhibits "A", "A-1", "B, "C", and "D" will show that the so-called
"attacks" are mere criticisms of some of the deeply held dogmas and tenets of other
religions. The videotapes were not viewed by the respondent court as they were not
presented as evidence. Yet they were considered by the respondent court as indecent,
contrary to law and good customs, hence, can be prohibited from public viewing under
Section 3(c) of PD 1986. This ruling clearly suppresses petitioner’s freedom of speech
and interferes with its right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut,[20] viz.:

xxx

In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are prominent in church or state
or even to false statements. But the people of this nation have ordained in the light of
history that inspite of the probability of excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part of the citizens
of democracy.

The respondent Board may disagree with the criticisms of other religions by petitioner
but that gives it no excuse to interdict such criticisms, however, unclean they may be.
Under our constitutional scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious dogmas and beliefs are
often at war and to preserve peace among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits the State from leaning towards
any religion. Vis-a-vis religious differences, the State enjoys no banquet of options.
Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot
squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other
religions, even if said religion happens to be the most numerous church in our
country. In a State where there ought to be no difference between the appearance
and the reality of freedom of religion, the remedy against bad theology is better
theology. The bedrock of freedom of religion is freedom of thought and it is best
served by encouraging the marketplace of dueling ideas. When the luxury of time
permits, the marketplace of ideas demands that speech should be met by more
speech for it is the spark of opposite speech, the heat of colliding ideas that can fan
the embers of truth.

Third. The respondents cannot also rely on the ground "attacks against another religion"
in x-rating the religious program of petitioner. Even a sideglance at Section 3 of PD 1986
will reveal that it is not among the grounds to justify an order prohibiting the broadcast
of petitioner’s television program. The ground "attack against another religion" was
merely added by the respondent Board in its Rules.[21] This rule is void for it runs smack
against the hoary doctrine that administrative rules and regulations cannot expand the
letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize "attack against any religion" as a
ground allegedly "x x x because Section 3 (c) of PD 1986 prohibits the showing of motion
pictures, television programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows
which offend any race or religion." We respectfully disagree for it is plain that the word
"attack" is not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of
the Revised Penal Code should be invoked to justify the subsequent punishment of a
show which offends any religion. It cannot be utilized to justify prior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack
against any religion" as a ground for censorship. The ground was not, however, carried
over by PD 1986. Its deletion is a decree to disuse it. There can be no other intent.
Indeed, even the Executive Department espouses this view. Thus, in an Opinion dated
November 28, 1985 then Minister of Justice, now President of the Senate, Neptali
Gonzales explained:

"x x x

"However, the question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision of
Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship,
to wit: ‘immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people or with dangerous tendency to
encourage the commission of violence, or of a wrong’ as determined by the Board,
‘applying contemporary Filipino cultural values as standard.’ As stated, the intention of
the Board to subject the INC’s television program to ‘previewing and censorship is
prompted by the fact that its religious program makes mention of beliefs and practices
of other religion.’ On the face of the law itself, there can conceivably be no basis for
censorship of said program by the Board as much as the alleged reason cited by the
Board does not appear to be within the contemplation of the standards of censorship
set by law." (Italics supplied)

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the
clear and present danger rule. In American Bible Society v. City of Manila,[22] this Court
held: "The constitutional guaranty of free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint
of such right can be justified like other restraints on freedom of expression on the
ground that there is a clear and present danger of any substantive evil which the State
has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, [23] we further
ruled that "x x x it is only where it is unavoidably necessary to prevent an immediate
and grave danger to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent necessary to avoid
the danger."

The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by hypothetical
fears but only by the showing of a substantive and imminent evil which has taken the
life of a reality already on ground.

It is suggested that we re-examine the application of clear and present danger rule to
the case at bar. In the United States, it is true that the clear and present danger test has
undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck
v. US,[24] as follows: "x x x the question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to
prevent." Admittedly, the test was originally designed to determine the latitude which
should be given to speech that espouses anti-government action. Bannered by Justices
Holmes and Brandeis, the test attained its full flowering in the decade of the forties,
when its umbrella was used to protect speech other than subversive speech.[25] Thus,
for instance, the test was applied to annul a total ban on labor picketing.[26] The use of
the test took a downswing in the 1950’s when the US Supreme Court decided Dennis v.
United States involving communist conspiracy.[27] In Dennis, the components of the test
were altered as the High Court adopted Judge Learned Hand’s formulation that "x x x in
each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger."
The imminence requirement of the test was thus diminished and to that extent, the
protection of the rule was weakened. In 1969, however, the strength of the test was
reinstated in Brandenburg v. Ohio,[28] when the High Court restored in the test the
imminence requirement, and even added an intent requirement which according to a
noted commentator ensured that only speech directed at inciting lawlessness could be
punished.[29] Presently in the United States, the clear and present danger test is not
applied to protect low value speeches such as obscene speech, commercial speech and
defamation. Be that as it may, the test is still applied to four types of speech: speech
that advocates dangerous ideas, speech that provokes a hostile audience reaction, out
of court contempt and release of information that endangers a fair trial.[30] Hence, even
following the drift of American jurisprudence, there is reason to apply the clear and
present danger test to the case at bar which concerns speech that attacks other
religions and could readily provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.

It is also opined that it is inappropriate to apply the clear and present danger test to the
case at bar because the issue involves the content of speech and not the time, place or
manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the evil apprehended
cannot be established. The contention overlooks the fact that the case at bar involves
videotapes that are pre-taped and hence, their speech content is known and not an X
quantity. Given the specific content of the speech, it is not unreasonable to assume that
the respondent Board, with its expertise, can determine whether its sulphur will bring
about the substantive evil feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that "x x x the determination of the
question as to whether or not such vilification, exaggeration or fabrication falls within or
lies outside the boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administrative body such as a Board of
Censors." He submits that a "system of prior restraint may only be validly administered
by judges and not left to administrative agencies." The same submission is made by Mr.
Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American rule in our

jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion
in the 1962 case of Manual Enterprise v. Day.[31] By 1965, the US Supreme Court
in Freedman v. Maryland[32] was ready to hold that "the teaching of cases is that,
because only a judicial determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression, only a procedure requiring a judicial determination
suffices to impose a valid final restraint."[33]

While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz,[34] viz.:

"The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and other publications from the mails, in
the exercise of executive power, is extremely delicate in nature and can only be justified
where the statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object should be not to
interfere with the freedom of the press or with any other fundamental right of the
people. This is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is fundamentally a
legal question. In order for there to be due process of law, the action of the Director of
Posts must be subject to revision by the courts in case he had abused his discretion or
exceeded his authority. (Ex-parte Jackson [1878], 96 U.S., 727; Public Clearing House
vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)

As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States Postmaster-
General), that the courts will not interfere with the decision of the Director of Posts
unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917],
246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat
different doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether
or not courts alone are competent to decide whether speech is constitutionally
protected.[35] The issue involves highly arguable policy considerations and can be better
addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24,
1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to
review petitioner’s TV program entitled "Ang Iglesia ni Cristo," and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner’s TV
Program Series Nos. 115, 119, and 121. No costs.

SO ORDERED.

Regalado, Davide, Jr., Romero, Francisco, and Torres, Jr., JJ., concur.

Padilla, Melo, and Kapunan, JJ., see concurring and dissenting opinion.
Hermosisima, Jr., J., joins the concurring and dissenting opinion of J. Kapunan.
Panganiban, JJ., see separate concurring opinion.
Vitug, and Mendoza, JJ., see separate opinion.
Narvasa, C.J., in the result.
Bellosillo, J., on leave.

[1]
 A petition for certiorari, prohibition and injunction, the case was raffled to Br. 104,
then presided by Judge, now Associate Justice of the Court of Appeals Maximiano
Asuncion.

[2]
 Original Records, p. 24.

[3]
 Original Records, p. 25.

[4]
 Original Records, p. 27.

[5]
 Original Records, p. 28.

[6]
 Original Records, p. 29. The second review shows the following action of the
respondent Board:
REMARKS:

An unbalanced interpretation of some parts of the bible regarding Christmas. They (The
Iglesia ni Kristo) tackle/discuss only their own interpretations (and) while the sides of
the Protestants and the Catholics who they pick on in this episode are not heard of.

We feel that this topic of the Iglesia ni Kristo which is (?) of attacking other religious
beliefs does not merit public telecast.

(Original Records, p. 30)

[7]
 Original Records, pp. 21-22.

[8]
 Original Records, p. 23.

[9]
 Original Records, pp. 121-120; pp. 144-149.

[10]
 Original Records, pp. 219-220.

[11]
 Original Records, pp. 223-230.

[12]
 Original Records, pp. 233-242.

[13]
 Original Records, pp. 245-250.

[14]
 Original Records, pp. 379-381.

[15]
 Tenth Division with Associate Justice Antonio P. Solano (ponente), Associate Justice
Alfredo Benipayo (chairman) and Associate Justice Ricardo Galvez (member).

[16]
 Victoriano v. Elizalde Rope Worker Union, L-25246, September 12, 1974 per Mr.
Justice Calixto Zaldivar.

[17]
 Cruz, Constitutional Law, 1991 ed., pp. 176-178.

[18]
 Original Records, p. 30.

[19]
 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).

[20]
 310 US 296.

[21]
 Sec. 4. Governing Standard. " a) the Board shall judge the motion pictures and
television programs and publicity materials submitted to it for review, using as standard
contemporary Filipino cultural values, to abate what are legally objectionable for being
immoral, indecent, contrary to law, and good customs x x x such as but not limited:

xxx         xxx         xxx

vii. Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof."

[22]
 101 Phil. 386.

[23]
 59 SCRA 54, 58.

[24]
 249 US 47,63 Led 470 (1919).

[25]
 Bridges v. California, 314 US 252, 262 where J. Black observed that the test "has
afforded a practical guidance in a variety of cases in which the scope of constitutional
protections of freedom of expression was an issue."

[26]
 Thornhill v. Alabama, 310 US 88 (1940).

[27]
 341 US 494 (1951).

[28]
 Id., at p. 510.

[29]
 Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine, Some
Fragments of History, 27 Stan L. Rev. 719 (1975).

[30]
 Hentoff, Speech, Harm and Self Government: Understanding the Ambit of the Clear
and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).

[31]
 370 US 478 (1962).

[32]
 380 US 51 (1965).

[33]
 Id., at p. 58.

[34]
 41 Phil. 468 (1921) per Justice Malcolm.

[35]
 See Hunter, Toward a Better Understanding of the Prior Restraint Doctrine, A Reply
to Prof. Mayton, 67 Cornell L. Rev, 283 (1982) for the view that courts are no better than
administrative agencies in protecting First Amendment rights.
 SEPARATE OPINION

MENDOZA, J.:

I concur in the decision to allow the showing of certain video tapes of petitioner’s
program, "Ang Iglesia Ni Cristo," and for this purpose to reverse the contrary ruling of
the Court of Appeals. I am constrained to file this separate opinion, however, because,
while the majority opinion invokes general principles of free speech and religion to
which I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986
and its implementing rules) under which the Board has acted.

My position will be spelled out presently but, in brief, it is this: Censorship may be
allowed only in a narrow class of cases involving pornography, excessive violence, and
danger to national security. Even in these cases, only courts can prohibit the showing of
a film or the broadcast of a program. In all other cases, the only remedy against speech
which creates a clear and present danger to public interests is through subsequent
punishment. Considering the potentiality for harm which motion pictures and TV
programs may have especially on the young, all materials may validly be required to be
submitted for review before they may be shown or broadcast. However, the final
determination of the character of the materials cannot be left to an administrative
agency. That judicial review of administrative action is available does not obviate the
constitutional objection to censorship. For these reasons, I would hold §3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid, while finding §3(c),
under which the Board acted in this case in censoring petitioner’s materials, to be, on its
face and as applied, unconstitutional.

I. "At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship or
punishment. 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."[1] "Because of the preferred
character of the constitutional rights of freedom of speech and expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of such
freedoms."[2]

Authoritative interpretations of the free speech clause consider as invalid two types of
prior restraints, namely, those which are imposed prior to the dissemination of any
matter and those imposed prior to an adequate determination that the expression is not
constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A]
prohibited `prior restraint’ is not limited to the suppression of a thing before it is
released to the public. Rather, an invalid prior restraint is an infringement upon the
constitutional right to disseminate matters that are ordinarily protected by the first
amendment without there first being a judicial determination that the material does not
qualify for first amendment protection."[3]

Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions
Pty. Ltd. v. Capulong,[4] we held that an injunction stopping the production of a
documentary film was an invalid prior restraint on freedom of speech and of expression.
In Mutuc v. COMELEC,[5] we struck down, also as an invalid prior restraint, a COMELEC
rule prohibiting the use in political campaigns of taped jingles blared through
loudspeakers which were mounted on mobile units. "[T]he constitutional guarantee is
not to be emasculated by confining it to a speaker having his say, but not perpetuating
what is uttered by him through tape or other mechanical contrivances."[6]

On the other hand, the fact that the material may have seen print or been taped, as in
the case of the TV series in question, cannot justify restriction on its circulation in the
absence of a judicial determination that the material does not constitute protected
expression. In Sotto v. Ruiz,[7] we denied finality, to the authority of the Director of Posts
to exclude newspapers and other publications from the mails "since whether an article
is or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by the
courts in case he has abused his discretion or exceeded his authority."[8]

II. P.D. No. 1986, § 3(b) requires motion pictures, television programs and publicity
materials to be submitted to the Board for review, while § 7 makes it unlawful for any
person or entity to exhibit or cause to be exhibited in any moviehouse, theater or public
place or by television any motion picture, television program or publicity material unless
it has been approved by the Board. Anyone who violates the prohibition is liable to
prosecution and, in case of conviction, to punishment by imprisonment ranging from 3
months and 1 day to 1 year, plus a fine of not less than P50,000.00 but not more than
P100,000.00. In addition, the moviehouse, theater or television station violating the
provision faces a revocation of its license.[9]

In Burstyn v. Wilson,[10] it was held that expression by means of motion pictures -- and, it
may be added, by means of television broadcasts is included in the free speech and free
press guarantee of the Constitution. This ruling is now part of our constitutional law,
which has assimilated into the constitutional guarantee not only motion pictures but
also radio and television shows because of the importance of movie, radio and
television both as a vehicle of communication and as a medium of expression.[11]

Does § 3(b) impermissibly impose a prior restraint because of its requirement that films
and TV programs must be submitted to the Board for review before they can be shown
or broadcast? In my view it does not. The Burstyn case, in declaring motion pictures to
be protected under the free expression clause, was careful to add: "It does not follow
that the Constitution requires absolute freedom to exhibit every motion picture of every
kind at all times and all places . . . . Nor does it follow that motion pictures are
necessarily subject to the precise rules governing any other particular method of
expression. Each method tends to present its own peculiar problems."[12] With reference
to television, this Court is on record that "a less liberal approach calls for observance.
This is so because unlike motion pictures where patrons have to pay their way,
television reaches every home where there is a [TV] set. Children then will likely be
among the avid viewers of programs therein shown. . . . [T]he State as parens patriae is
called upon to manifest an attitude of caring for the welfare of the young."[13]

While newspapers may not be required to submit manuscripts for review as a condition
for their publication, except during wartime, such a requirement is justified when
applied to motion pictures or television programs (other than newsreels and
commentaries) because of unique considerations involved in their operation.
"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."[14] The State may thus
constitutionally require the advance submission of all films and TV programs as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.[15]

For these reasons, I hold § 3(b) to be a valid exercise of the State’s power to protect
legitimate public interests. The purpose of this restraint -- temporary in character -- is to
allow the Board time to screen materials and to seek an injunction from the courts
against those which it believes to be harmful.

III. I reach a different conclusion, however, with respect to §3(c). This provision
authorizes the Board to prohibit, among other things, the exhibition or broadcast of
motion pictures, television programs and publicity materials which, in its opinion, are
"immoral, indecent, contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines or its people, or [which have] a dangerous tendency to
encourage the commission of violence or of a wrong or crime," such as the following:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people in their
government and/or the duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are subjudice in nature.

Under this authority, the Board can determine what can be shown or broadcast and
what cannot. It is not true, as the Board claims, that under P.D. No. 1986 its power is
limited to the classification of motion pictures and TV programs. The power to classify
includes the power to censor. The Board can x-rate films and TV programs and thus ban
their public exhibition or broadcast. And once it declares that a motion picture or
television program is, for example, indecent or contrary to law, as in the case of the INC
program in question, its declaration becomes the law. Unless the producer or exhibitor
is willing to go to court, shouldering not only the burden of showing that his movie or
television program is constitutionally protected but also the cost of litigation, the ban
stays.[16] This is censorship in its baldest form. This is contrary to the fundamental tenet
of our law that until and unless speech is found by the courts to be unprotected its
expression must be allowed.

In an effort to save this provision from constitutional attack, it is alleged that the TV
program in question was disallowed pursuant to the rules of the Board which prohibit
the showing of motion pictures or TV programs containing "malicious attack[s] against
any race, creed or religion." It is contended that this rule impermissibly broadens the
prohibition in §3(c), because this ground ("malicious attack[s] against any race, creed or
religion") is not among those provided therein.

However, §3(c) gives the Board authority to stop the showing of motion pictures,
television programs and publicity materials which are "contrary to law," and Art. 201 (2)
(b) (3) of the Revised Penal Code makes it a crime for anyone to exhibit "shows which
offend any race or religion." It is true that Art. 201(2) (b) (3) refers to subsequent
punishment, whereas we are dealing here with prior restraint. However, by authorizing
the censorship of materials which in the opinion of the Board are "contrary to law," §
3(c) makes what is only a ground for subsequent punishment also a ground for prior
restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing
it, which is unconstitutional.[17]

While I think the Board may be granted the power to preview materials, it is only for the
purpose of enabling the Board to decide whether to seek their prohibition by the court
in the interest of safeguarding morality, good order and public safety, considering the
pervasive influence of broadcast media compared to that of the print media. But
concern with possible deleterious effects of movies and television shows cannot and
should not be allowed to overshadow the equally important concern for freedom of
expression and blind us to the danger of leaving the ultimate determination of what
expression is protected and what is not to a board of censors. The protection of the
youth should be in the first place the concern of parents, schools and other institutions.
I do not think that society is so morally impoverished that we have to draw on a group
of censors for ultimate moral lesson and leading.

If we have to call on the assistance of any agency at all, it must be the courts.[18] There
are many reasons why a system of prior restraint (in those cases where it may validly be
imposed) may only be administered by judges. First is that the censor’s bias is to censor.
Second is that "only a judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression."[19] As has been observed, "Central to the
first amendment due process is the notion that a judicial rather than an administrative
determination of the character of the speech is necessary. . . . [C]ourts alone are
competent to decide whether speech is constitutionally protected."[20] Third, the
members of the Board do not have the security of tenure and of fiscal autonomy
necessary to secure their independence.

Indeed, I cannot understand why, after ruling that the valuation of property in eminent
domain is essentially a judicial function which cannot be vested in administrative
agencies,[21] this Court should be willing to leave the valuation of that priceless
commodity -- expression, whether by means of motion picture or television -- to
administrative agencies with only occasional review by the courts. The trend may be
toward greater delegation of judicial authority to administrative agencies in matters
requiring technical knowledge and as a means of relieving courts of cases which such
agencies can very well attend to.[22] There is no justification, however, for such
delegation in the area of our essential freedoms, particularly freedom of expression,
where "only a judicial determination in an adversary proceeding [can] ensure the
necessary sensitivity to freedom of expression."[23]

We have witnessed such distinct possibility in the past to need any more lesson in the
future to make us realize the danger of leaving freedom of expression and religion -- the
essential freedom of the mind -- in the care of an administrative agency.

To the extent therefore that P.D. No. 1986, §3 (c) vests in the Board the final authority
to determine whether expression by motion picture or television is constitutionally
protected, I find it unconstitutional.

IV. The majority limit themselves to a determination of the correctness of the Board’s
finding that the video tapes in question contain attacks on the Catholic religion. I find it
difficult to pass upon this question because the contents of the tapes are not in the
record of this case.[24] The trial court ruled that the tapes contain no attack against any
religion but only a discussion of the doctrines which the Iglesia Ni Cristo believes
embody "superior and self evident truth." On the other hand, the Court of Appeals, in
reversing the trial court, found that the tapes "offend by verbal abuse other religions"
and are for that reason "indecent and contrary to good customs" within the meaning of
P.D. No. 1986, §3(c). Neither court, however, had any evidence to support its
conclusions, because this case was submitted by the parties solely on the basis of
memoranda. What the majority of this Court call facts (pp. 16-17) are simply the
opinions of members of the Board that the video tapes contain attacks on the Catholic
religion.

There are no facts on which to base judgment on this question. Even if there are, the
clear and present danger test is inapplicable. To be sure, in Gonzales v. Kalaw
Katigbak this Court said:

[W]here the movies, theatrical productions, radio scripts, television programs, and other
such media of expression are concerned -- included as they are in freedom of expression
-- censorship, especially so if an entire production is banned, is allowable only under the
clearest proof of a clear and present danger of a substantive evil to public safety, public
morals, public health or any other legitimate public interest.[25]

The clear and present danger test has been devised for use in criminal prosecutions for
violations of laws punishing certain types of utterances.[26] While the test has been
applied to the regulation of the use of streets and parks[27]-- surely a form of prior
restraint -- its use in such context can be justified on the ground that the content of the
speech is not the issue. But when the regulation concerns not the time, place or manner
of speech but its content (i.e., it is content- based) the clear and present danger test
simply cannot be applied. This is because a determination whether an utterance has
created a clear and present danger to public interests requires a factual record.

The test itself states that 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 evil that Congress has a right to
prevent."[28] However it may have been reformulated in later cases, the test essentially
requires that the causal connection between the speech and the evil apprehended be
evident.[29] But how can this be shown unless the speech is first allowed? It is not
enough that the tapes have been made and only their broadcast banned. What about
the audience reaction to the tapes? Even if we know what the tapes in this case contain,
we cannot determine whether their public broadcast would create a clear and present
danger to public interest. The censorship board, trying to determine whether to issue a
permit, must necessarily speculate on the impact which the words will have since the
context in which they will be uttered -- the audience, the occasion, and the place -- is
totally lacking in the record. It is then forced to apply a lesser standard of proof in
deciding whether to impose a restraint on speech.

The majority claim that there is no need for a factual record in order to find that the
Board in this case exceeded its powers in disallowing the TV series in question. They
argue that "acts of prior restraint are hobbled by the presumption of invalidity and
should be greeted with furrowed brows. It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this heavy burden, its act of
censorship will be struck down. . . . In the case at bar, respondent board did nothing to
rebut the presumption." (p. 17)

That, however, is precisely the problem with the censorship law. It in effect places on
the producer or exhibitor the burden of going to court and of showing that his film or
program is constitutionally protected. To paraphrase Sotto v. Ruiz, which the majority
cite as authority for sustaining the validity of §3(c), "Every intendment of the law is in
favor of the correctness of [the agency’s] action."[30] The Board would have this burden
of justification if, as I believe it should, it is made to go to court instead and justify the
banning of a film or TV program. That is why §3(c) should be invalidated. One cannot
defend the validity of the law and at the same time contend that in any court
proceeding for the review of the Board’s decision the burden of justifying the ban
should be on the Board.

The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the
standard for judging the validity of prior restraint on political expression is stricter than
that for adjudging restraints on materials alleged to be obscene, but not that the test of
clear and present danger is applicable in determining whether or not a permit may be
granted.

In Gonzales v. Kalaw Katigbak[31] this Court echoed Justice Douglas’s plea that "every
writer, actor, or producer, no matter what medium of expression he may use, should be
freed from the censor." For indeed the full flowering of local artistic talents and the
development of the national intelligence can take place only in a climate of free
expression. A film producer, faced with the prospect of losing on his investment as a
result of the banning of his movie production, may well find himself compelled to
submit to the wishes of the Board or practice self-censorship. The expression of
unpopular opinions, whether religious, political or otherwise is imperilled under such a
system.

We have long ago done away with controls on print media, it is time we did the same
with the control on broadcast media, which for so long has operated under restraints,
[32]
 leaving the punishment for violations of laws to be dealt with by subsequent
prosecution.

For the foregoing reasons, I vote to declare §3 (c) of P.D. No. 1986 unconstitutional and
to reverse the decision of the Court of Appeals, except in so far as it sustains the grant
of power to the Board to preview materials for showing or broadcast, consistent with
my view that §3(b) is valid.
[1]
 Gonzales v. COMELEC, 27 SCRA 835, 856 (1969); accord, Reyes v. Bagatsing, 125 SCRA
553 (1983); Gonzales v. Kalaw-Katigbak, 137 SCRA 717 (1985).

[2]
 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).

[3]
 State v. I, a Woman -- Part II, 53 Wis. 102, 191 N.W. 2d 897, 902-903 (1971); see also
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1041-42 (1988).

[4]
 160 SCRA 861 (1988).

[5]
 36 SCRA 228 (1970).

[6]
 Id., at 234.

[7]
 41 Phil. 468 (1921).

[8]
 Id. at 470.

[9]
 § 11.

[10]
 343 U.S. 495, 96 L. Ed. 1098 (1952).

[11]
 See Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA at 869; Gonzales v. Kalaw-
Katigbak, 137 SCRA at 723; Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628,
635 (1985).

[12]
 Burstyn v. Wilson, 343 U.S. at 502-503, 96 L.Ed. at 1106.

[13]
 Gonzales v. Kalaw Katigbak, 137 SCRA at 729.

[14]
 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA at 635.

[15]
 Freedman v. Maryland, 380 U.S. 51, 13 L.Ed. 2d 649 (1965).

[16]
 PAUL A. FREUND, THE SUPREME COURT OF THE UNITED STATES 66 (1961).

[17]
 Thanks to Rule 4(VII) of the Board, "shows which offend any race or religion," as a
ground for prosecution, is translated into "clearly . . . malicious attack against a race,
creed or religion," as a ground for censorship, thus limiting the Board’s discretion in
censoring films and TV programs. This does not of course make the grant of censorial
powers to the Board any less invalid. There was a time when I thought that the problem
was with overboard standards. I am now convinced that the problem is with censorship
per se.

[18]
 See Freedman v. Maryland, 380 U.S. 51, 13 L.Ed. 2d 649 (1965); Teitel Film Corp. v.
Cusak, 390 U.S. 139, 19 L.Ed. 2d 966 (1968); Blount v. Rizzi, 400 U.S. 410, 428 L.Ed. 2d
498 (1971).

[19]
 Freedman v. Maryland, 380 U.S. at 58, 13 L.Ed. 2d at 654. For a discussion of the
"vices" of administrative censorship as opposed to judicial determination, see generally
John Jeffries, Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 421-426 (1983).

[20]
 Henry Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518, 520 (1970).

[21]
 EPZA v. Dulay, 149 SCRA 305 (1987); Sumulong v. Guerrero, 154 SCRA 461 (1987).

[22]
 E.g., Antipolo Realty v. NHA, 153 SCRA 399 (1987); Tropical Homes, Inc. v. NHA, 152
SCRA 540 (1987).

[23]
 Freedman v. Maryland, 380 U.S. at 58, 13 L. Ed. 2d at 654.

[24]
 Compare the following: "Knowledge is essential to understanding; and understanding
should precede judging," Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520, 68 L. Ed. 813,
829 (1924) (Brandeis, J., dissenting), which Professor Freund says was central to the
thought of Justice Brandeis. ON UNDERSTANDING THE SUPREME COURT 50 (1949).

[25]
 137 SCRA at 725.

[26]
 See, e.g., Schenck v. United States, 249 U.S. 47, 63 L.Ed. 470 (1919); Primicias v.
Fugoso, 80 Phil. 71 (1948); Cabansag v. Fernandez, 102 Phil. 152 (1957); Vera v. Arca, 28
SCRA 351 (1969).

[27]
 E.g., Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v. Villegas, 31 SCRA 731
(1970); see also the Public Assembly Act of 1985 (B.P. Blg. 880), §6(a) of which makes it
mandatory for mayors to grant permits for the use of parks and streets 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."

[28]
 Schenck v. United States, 249 U.S. at 52, 63 L.Ed. at 473-74.

[29]
 ENRIQUE M. FERNANDO, CONSTITUTION OF THE PHILIPPINES 569 (1977).

[30]
 41 Phil. at 470.
[31]
 137 SCRA at 725, quoting Justice Douglas’s concurring opinion in Superior Films v.
Department of Education, 346 U.S. 587, 58998 L.Ed. 330, 331 (1954).

[32]
 The first film censorship law, Act No. 3582 of the Philippine Legislature, was enacted
on November 29, 1929.

CONCURRING AND DISSENTING OPINION

KAPUNAN, J.:

While I concur in the result of the majority’s decision reversing that of the Court of
Appeals insofar as it set aside the action of respondent MTRCB x-rating petitioner’s TV
Program Series Nos. 115, 119 and 121, with due respect, I cannot agree with its opinion
that respondent Board of Review for Motion Pictures and Television (now MTRCB) has
the power to review petitioner’s TV program "Ang Iglesia ni Cristo." The religious TV
program enjoys the Constitution’s guarantee of freedom of religion,[1] and of speech and
expression,[2] and cannot be subject to prior restraint by the Board by virtue of its
powers and functions under Section 3 of P.D. 1986 which provides as follows:

Sec. 3. Powers and Functions. - The BOARD shall have the following functions, powers
and duties:

xxx                   xxx                      xxx

b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in the
Philippines, and in the latter case, whether they be for local viewing or for export.

c) To approve or disapprove, delete objectionable portion from and/or prohibit the

importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for being
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are subjudice in nature.

Under the aforequoted provisions, the MTRCB, while nominally a classification board, is
granted the power not only to classify, but also to approve or disapprove/prohibit
exhibition of film or television broadcasts of motion pictures and TV programs.

The freedom to disseminate religious information is a right protected by the free

exercise clause of the Constitution. It encompasses a wide range of ideas and takes
many forms. In the process of enlightening the adherents or convincing non-believers of
the truth of its beliefs, a religious sect or denomination is allowed the free choice of
utilizing various media, including pulpit or podium, print, television film, and the
electronic mail.

The broad latitude of freedom afforded by the free exercise clause is a historic
outgrowth of our country’s twin colonial experiences: our forefathers’ aversion against
the Spanish colonial government’s interference with religious belief and practice and
the transplantation of American Constitutional thinking into the mainstream of our
political life, which brought with it the ideas of Protestant dissent and humanistic
rationalism dominant in the debates of the American Constitutional Convention. These
two poles conjoined to place the individual conscience beyond the coercive power of
government. Involving as it does the relationship of man to his Creator, respect for the
inviolability of conscience lay at the core of the free exercise clauses in our Constitutions
from 1935 to 1987.[3]

It is, therefore, settled that religious freedom is a fundamental right entitled to the
highest priority and amplest protection among human rights. Because of its exalted
position in our hierarchy of civil rights, the realm of religious belief is generally insulated
from state action, and state interference with such belief is allowed only in extreme
cases.

Free exercise encompasses all shades of expression of religious belief. It includes the
right to preach, proselyte and to perform other similar functions.[4] As oftentimes these
aspects of the free exercise clause fall within areas affected by government regulation,
the importance of religious freedom is such that the state must make special provisions
to relieve religious liberty from restrictions imposed by generally legitimate government
regulations.[5] Commenting on religious freedom and other freedoms of conscience, this
Court held in Reyes v. Bagatsing[6] that:

[O]n 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
felicitously 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.[7]

Even before film and television achieved the power and influence it has gained in the
last few decades, the U.S. Supreme Court, in the case of Burtsyn v. Wilson,[8] conceded
that movies were a significant medium for the dissemination of ideas, affecting "public
attitudes and behavior in a variety of ways, ranging from the direct espousal of a
political or social doctrine to the subtle shaping of thought which characterizes artistic
expression."[9] The U.S. Supreme Court emphasized that the significance of motion
pictures as an organ of public opinion is not diluted by the fact that films are "designed
to entertain as well as to inform,"[10] thus, recognizing that motion pictures fell within
the sphere of constitutionally protected speech and expression. Responding to the
question of censorship in the context of film as protected expression, the U.S. Supreme
Court, in the case of Freedman v. Maryland[11] held that:

The administration of a censorship system for motion pictures presents peculiar dangers
to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship
proceeding puts the initial burden on the exhibitor or distributor. Because the censor’s
business is to censor, there is an inherent danger that he may be less responsive than a
court - part of an independent branch of government - to constitutionally protected
interests in free expression.[12]

In American Bible Society v. City of Manila, [13] this Court held that any restraint on the
right to disseminate religious information "can only be justified like other restraints of
freedom of expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent."[14] Affirming the use of this
"clear and present danger" standard in cases involving religious freedom and worship,
the late Chief Justice Claudio Teehankee warned that "[t]he sole justification for a prior
restraint or limitation on the exercise of religious freedom is the existence of a grave
and present 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, that the State
has a right (and duty) to prevent."[15]

Religious freedom is not of course an absolute right. However, given its exalted position
in our hierarchy of civil rights, the essence of all that has been said and written about
the subject is that only those interests of the highest order and those not otherwise
served can overbalance claims to free exercise of religion.[16] In a highly sensitive
constitutional area, only the gravest situation endangering paramount governmental
interests give occasion for permissible limitation. And even in such rare cases,
government may justify an inroad into religious liberty only by showing that it is the
least restrictive means of achieving the compelling state interest. A facially neutral
regulation apparently evenhandedly applied to all religious sects and denominations
would be constitutionally suspect when it imposes an undue burden on the exercise of
religious freedom. "Rules are rules" is not by itself a sufficient justification for infringing
religious liberty."[17]

It is my submission that the government, under the guise of its regulatory powers in the
censorship law (P.D. 1986 and its corresponding implementing rules and regulations),
does not have the power to interfere with the exercise of religious expression in film or
television by requiring the submission of the video tapes of petitioner’s religious
program before their public viewing, absent a showing of a compelling state interest
that overrides the constitutional protection of the freedom of expression and worship.
Even if government can demonstrate a compelling state interest, it would only burden
such fundamental right like the free exercise of religion by the least intrusive means
possible.[18] There is no demonstration here of any sufficient state interest to justify the
infringement.

In any case, petitioner’s religious programs, which in their very essence and
characterization are the exercise of religious freedom, cannot possibly come under the
category of the objectionable matters enumerated in Section 3(c) of P.D. 1986 or
analogous thereto. It is not likely that propagation of religion which has been spoken of
as "a profession of faith that binds and elevates man to his Creator"[19] will involve
pornography, excessive violence or danger to national security.

Significantly, the enumeration in Section 3(c) does not include the standard "attack
against any religion" as among those considered objectionable and subject to
censorship. Respondents justify this omission by stating that any form of expression
"contrary to law" could be subject to regulation because the enumeration is in any case
not exclusive, and that the phrase "contrary to law" should, in the Solicitor General’s
words in behalf of respondents, be construed "in relation to Article 201 of the Revised
Penal Code which proscribes the exhibition of shows that ‘offend any race or
religion.’"[20] Respondents moreover argue that the Rules and Regulations of the MTRCB
issued pursuant to P.D. 1986 in any case explicitly furnish the standard left out in the
enumeration when it provides:

SECTION 4. GOVERNING STANDARD. - a) The BOARD shall judge the motion pictures and
television programs and publicity materials submitted to it for review, using as standard
 contemporary Filipino cultural values to abate what are legally objectionable for being
immoral, indecent, contrary to law and good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime such as but not limited to:

xxx
                                                                              
vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; x x x.

There are several reasons why I cannot agree with respondent Board’s contention that it
may add the standard "attack against any religion" among those enumerated by P.D.
1986. While the law’s enumeration is concededly not exclusive, inclusion of other
standards should be made in the strict context of the words "immoral, indecent,
contrary to law and/or good customs." Specific standards following a general
enumeration cannot go beyond the scope of the latter.

In the first place, the word "indecent" in censorship law has a narrow meaning, confined
to obscenity regulation.[21] It cannot be conveniently employed as a catch-all term
embracing all forms of expression considered noxious by the Board. On the other hand,
"contrary to law," had particular significance in the old censorship laws because those
laws explicitly included anything "offensive to other religions" among their enumerated
standards. In the light of what the Solicitor General describes as the "transitional"
nature of P.D. 1986, the better view would be that the omission of "attack against any
religion" among the enumerated standards was intentional and part of the evolving
process of fashioning a system of strict classification of films and television programs as
opposed to censorship. As this phrase was ubiquitous in the old censorship laws
(particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses the manifest
intention of the law-making authority to do away with the standard. This view is
supported by the Executive Branch itself, through the Opinion of then Minister of Justice
Neptali Gonzales who stated, when the case came up before his office for review, that:

[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject
television program of INC should be viewed in the light of the provision of Section 3,
paragraph (c) of P.D. 1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards for censorship, to wit:
‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines or its people, or with dangerous tendency to encourage
the commission of violence, or a wrong’ as determined by the Board, ‘applying
contemporary Filipino cultural values as standard.’ As stated, the intention of the Board
to subject the INC’s television program to ‘previewing and censorship is prompted by
the fact that its religious program’ makes mention of beliefs and practices of other
religion.’ On the face of the law itself, there can conceivably be no basis for censorship
of said program by the Board as much as the alleged reason cited by the Board does not
appear to be within the contemplation of the standards of censorship set by law.[22]

Additionally, the phrase "contrary to law" cannot and should not be understood to refer
to Article 201[23] of the Revised Penal Code, as respondents mistakenly suggest. Article
201 deals with the subject of subsequent punishment; P.D. 1986 clearly treats with an
altogether different matter - prior restraint and censorship. The two laws stand at
opposite poles in the continuum of regulation and punishment.

Thus, the censor’s cut poses a peculiar danger because it altogether skirts time-honored
judicial tests and standards utilized in determining those forms of expression that fall
within the area of protected speech or expression, and because, as between prior
restraints and the subsequent sanctions meted after proof of violation of specific penal
statutes, the former prevents the speech or expression from entering the marketplace
of ideas.[24] That is exactly the effect of the orders assailed by petitioner in the instant
case. More significantly, under the specific facts and circumstances of the case
confronting us, what is sought to be kept out of the marketplace of ideas is not only
ordinary speech or expression, two constitutional values which already enjoy primacy
among our civil rights, but also religious speech or expression utilizing the medium of
television.

It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard
applicable to all religious sects and denominations. I cannot agree. The "neutrality"
standard has been raised in numerous free exercise cases before the courts, the most
recent having been the Flag Salute cases.[25] However, a regulation neutral on its face
poses free exercise problems when it creates or has the potential of imposing undue
burdens on religion. "Democratic government acts to reinforce the generally accepted
values of a given society and not merely the fundamental ones which relate to its
political structure."[26] Facially neutral standards are a facet of prevailing consensus. The
old flag salute cases are testaments to the natural preference for the prevailing political
and social morality over the religious liberty of minorities. The prevalent view tends to
impose its idea of what is religious and what is not over and above the protests of the
other religions, sects and denominations.[27] Applying "contemporary Filipino standards"
and values (the general test in P.D. 1986) to religious thought and expression allows an
"overarching" into a constitutionally protected area and potentially would simply
provide the Board with a veiled excuse for clamping down against unorthodox religious
thought and expression. Measured in terms of the historic purpose of the guarantee,
the free exercise provision in our Constitution not only insulates religion against
governmental power, but when taken together with the Establishment clause, affords
protection to religious minorities by preventing the use of that power in imposing the
majority’s will.

We are faced with a case of censorship and restraint which, I stated earlier, touches
upon one of the most private and sensitive of domains: the realm of religious freedom,
thought and expression. In this domain, sharp differences may arise such that the tenets
of one individual may seem the "rankest error" to his neighbor.[28] In the process of
persuading others about the validity of his point of view, the preacher sometimes
resorts to exaggeration and vilification. However, the determination of the question as
to whether or not such vilification, exaggeration or fabrication falls within or lies outside
the boundaries of protected speech or expression is a judicial function which cannot be
arrogated by an administrative body such as a Board of Censors.[29] Even if the exercise
of the liberties protected by the speech, expression and religion clauses of our
Constitution are regarded as neither absolute nor unlimited, there are appropriate laws
which deal with such excesses. The least restrictive alternative would be to impose
subsequent sanctions for proven violations of laws, rather than inflict prior restraints on
religious expression.

Our penal law punishes libel, or acts or speeches offensive to other religions, and
awards damages whenever warranted. In our legal scheme, courts essentially remain
the arbiters of the controversies affecting the civil and political rights of persons. It is our
courts which determine whether or not certain forms of speech and expression have
exceeded the bounds of correctness, propriety or decency as to fall outside the area of
protected speech. In the meantime, the liberties protected by the speech and
expression and free exercise clauses are so essential to our society that they should be
allowed to flourish unobstructed and unmolested.[30]

The majority opinion professes fealty to freedom of religion which, it openly admits, has
been accorded a preferred status by the framers of our fundamental laws, and affirms
that "(D)eeply ensconced in our fundamental law is its hostility against all prior
restraints on speech, including religious speech."[31] The majority then adds pointedly
that "acts of prior restraint are hobbled by the presumption of invalidity and should be
greeted with furrowed brows. It is the burden of the respondent Board to overthrow
this presumption. If it fails to discharge this heavy burden, its acts of censorship will be
struck down. It failed in the case at bar."[32]

And yet, the majority at the same time would grant MTRCB the power to review the TV
religious programs because "with its expertise," it "can determine whether its sulphur
will bring about the substantive evil feared by the law."[33] The majority thus would
uphold the power of the Board as an administrative body with quasi-judicial power to
preview and classify TV programs, citing with favor the 1921 decision of this Court
in Sotto vs. Ruiz[34] wherein it was held that:

As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States Postmaster-
General), that the courts will not interfere with the decision of the Director of Posts
unless clearly of opinion that it was wrong.

I share with Justice Mendoza’s view that the majority’s pronouncement would in effect
place on the producer or exhibitor the burden of going to court and of showing that his
film or program is constitutionally protected. This throws overboard the fundamental
tenet that any act that restrains speech is presumed invalid and it is the burden of the
censor to overthrow this presumption. In the context of the present case, if the Board
disapproves a TV religious program or deletes a portion thereof, it is the exhibitor or
producer who will go to court to prove that the Board is wrong and the court will not
interfere with the Board’s decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.

The majority’s ruling, I am afraid, constitutes a threat to constitutionally protected

speech and expression and supplants a judicial standard for determining constitutionally
protected speech and expression with the censor’s standard. The heavy burden on the
imposition of prior restraints is shifted away from the state by imposing upon the
exhibitor the obligation of proving that the religious programs fall within the realm of
protected expression. This leaves the exhibitor with only two unwanted options: either
1) he himself deletes the portions which he anticipates the Board might possibly object
to prior to submission to that body and thereby obtains the censor’s nod, or 2) submits
the Video tapes in their entirety and risks disapproval or deletion, in which case he may
go to court and show that the Video tapes contain constitutionally protected speech and
expression. In the first situation, the message loses its essence and substance. The
second scenario may entail tremendous amount of money, time and effort in a
prolonged litigation. Either case constitutes grievous assault on the freedom of speech
and religion.

The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review
petitioner’s TV programs. In that case, the Court held that the Acting Director of the
Bureau of Posts is vested with authority to determine what mail matter is obscene,
lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which
provides, among others, that no lewd, lascivious, filthy, indecent or libelous character
shall be deposited in, or carried by, the mails of the Philippine Island, or be delivered to
its addressee by any officer or employee of the Bureau of Posts. Petitioner’s programs
which are televised in the exercise of freedom of worship cannot be placed in the
category of the printed matter proscribed in the old Administrative Code. Freedom of
worship is such a precious commodity in our hierarchy of civil liberties that it cannot be
derogated peremptorily by an administrative body or officer who determines, without
judicial safeguards, whether or not to allow the exercise of such freedom.

The rights of free expression and free exercise of religion occupy a unique and special
place in our constellation of civil rights. The primacy our society accords these freedoms
determines the mode it chooses to regulate their expression. But the idea that an
ordinary statute or decree could, by its effects, nullify both the freedom of religion and
the freedom of expression puts an ominous gloss on these liberties. Censorship law as a
means of regulation and as a form of prior restraint is anathema to a society which
places high significance to these values.

WHEREFORE, premises considered, I vote to grant the petition.

[1]
 CONST., Art. III, Sec. 5.

[2]
 CONST., Art. III, Sec. 4.

[3]
 The 1987 Constitution provides:

"Section 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.

This provision retains the wording of both the 1935 and 1973 Constitution.

[4]
 McDaniel v. Patty, 435 U.S. 618, 626 (1998); "Clearly, freedom of belief protected by
the free exercise clause embraces freedom to profess or practice that belief.- Id., at 631
(Brennan, J., concurring).

[5]
 Sherbert v. Vener, 374, U.S. 398 (1963).

[6]
 125 SCRA 553 (1983).

[7]
 Id., at 570.

[8]
 343 U.S. 495 (1952).

[9]
Id., at 501.

[10]
 Id.

[11]
 380 U.S. 51 (1965).

[12]
 Id., at 57.

[13]
 101 Phil. 386 (1957).

[14]
 Id., at 398.
[15]
 Supra, note 11, at 534. (Dissenting).

[16]
 The dichotomy between the freedom to believe and the freedom to act upon one’s
beliefs was succinctly summed up by this Court in its flag ceremony decision, See
Ebralinag v. Division Superintendent of Schools of Cebu, 219 SCRA 270 (1993).

[17]
 Goldman v. Weinberger, 54 LW 4298 (1986).

[18]
 Sherbert v. Verner, 374 U.S. 333 [1963].

[19]
 Aglipay v. Ruiz, 64 Phil. 201.

[20]
 Rollo, p. 130.

[21]
 See Miller v. California, 413 U.S. 15 (1973); Roth v. U.S., 354 U.S. 476 (1957); Memoirs
v. Massachusetts, 383 U.S. 413 (1966).

[22]
 Rollo, p. 42. (Italics supplied).

[23]
 Article 201 provides:

ART. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon.

[24]
 See Near v. Minnesota, 283 U.S. 697 (1931).

[25]
 Supra, note 15. See also Motion for Reconsideration, G.R. No. 95770, December 29,
1995.

[26]
 Gianella, Religious Liberty, Nonestablishment and Doctrinal Development: Part I The
Religious Liberty Guarantee, 80 Harvard L.R. 1381 (1967).

[27]
 In any society, the most acculturated religion is that which exists in full harmony with
society’s values and institutions. Normally, the acculturated religion rarely comes at
odds with society’s legal norms in as much as those norms themselves are directly or
indirectly influenced by the acculturated or dominant religion. The thorniest legal issues
arise when a particular religion or sect advocates ideas separate from mainstream
culture, or urges a radical deviation from dominant thought which clashes with
orthodox norms or expectations. Notwithstanding the "acceptable" variety of
expression which falls under the rubric of bona fide religious dogma, cross-cultural
religious clashes are bound to be mediated from the standpoint of the dominant
religion. See, H. RICHARD NEIBHUR, CHRIST AND CULTURE (1951.

[28]
 Cantwell v. Connecticut, 310 U.S. 296, at 310 (1939).

[29]
 Whether or not administrative bodies might be more effective (and as suggested
"liberal" as opposed to the traditional "conservatism of courts) in this regard or in terms
of protecting the constitutional rights of speech and expression, the process of assaying
the constitutional validity of the Board’s acts with respect to these guarantees is a
function ultimately reposed by the Constitution in the courts.

[30]
 Id., at 310.

[31]
 Majority opinion, pp. 13, 19.

[32]
 Id., at 17.

[33]
 Id., at 24.

[34]
 41 Phil. 468.

CONCURRING AND DISSENTING OPINION

MELO, J,:

The enjoyment of the freedom of religion is always coupled with the freedom of
expression. For the profession of faith inevitably carries with it, as a necessary
appendage, the prerogative of propagation. The constitutional guaranty of free exercise
and enjoyment of religious profession and worship thus denotes the right to
disseminate religious information (American Bible Society vs. City of Manila, 101 Phil.
386 [1957]). Any prior restriction upon a religious expression would be a restriction on
the right of religion. We recognize the role and the deep influence that religion plays in
our community. No less than the fundamental law of the land acknowledges the
elevating influence of religion by imploring the aid of almighty God to build a just and
humane society. Any restriction that is to be placed upon this right must be applied with
greatest caution.

Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established
religious organization has been well with us for almost a century, with several millions of
following, quite a number of imposing and elegantly constructed cathedrals and
hundreds of chapels spread in many parts of the country, injecting profound influence
not only in the social and political aspect of the community but upon its moral values as
well. Respect must be afforded a well-established church, especially on matters
concerning morality and decency lest no concept of morality could ever be accepted
with deference. Such pre-eminence in the community deserves no less than the
confident expectation that it will act in accordance with its avowed mission of
promoting religious guidance and enlightenment. Its religious programs must be
accorded the presumption that the same will instill moral values that would be
beneficial to its adherents and followers, and perhaps to the community in general. The
contrary must not be presumed. Its television programs, therefore should not be
equated with ordinary movies and television shows which MTRCB is bound by the law to
monitor for possible abuse. One must recognize the power of State to protect its
citizenry from the danger of immorality and indecency motivated by the selfish desire of
media entrepreneurs to accumulate more wealth, or of bogus religious groups, for that
matter, to mislead and beguile the unlettered and uninformed. But considering all these
circumstances, I see no cogent reason for the application of such power to the present
case.

Freedom of religion and expression is the rule and its restriction, the exception. Any
prior restriction on the exercise of the freedom to profess religious faith and the
propagation thereof will unduly diminish that religion’s authority to spread what it
believes to be the sacred truth. The State can exercise no power to restrict such right
until the exercise thereof traverses the point that will endanger the order of civil
society. Thus we have ruled in the case of Ebralinag vs. The Division Superintendent of
Schools of Cebu (219 SCRA 270 [1993]):

The sole justification for a given restraint or limitation on the exercise of religious
freedom is the existence of a grave and present 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 that the state has the right and duty to prevent.

Correspondingly, the MTRCB has no authority to use as standard, the dangerous

tendency rule, which we have long abandoned, and for which reason, the dangerous
tendency standard under Subparagraph C, Section 3 of Presidential Decree No. 1986 has
no place in our statute books.

I, therefore, vote to grant the petition.

CONCURRING AND DISSENTING

PADILLA, J.:

I concur with the majority opinion insofar as it removes the ban against the showing of
petitioner’s TV Program Series Nos. 115, 119 and 121. However, I disagree with that part
of the majority opinion which upholds the power of respondent Board to subject to
prior restraint petitioner’s religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there
can be no prior restraints on the exercise of free speech, expression or religion, unless
such exercise poses a clear and present danger of a substantive evil which the State has
the right and even the duty to prevent. The ban against such prior restraints will result,
as it has resulted in the past, in occasional abuses of free speech and expression but it is
immeasurably preferable to experience such occasional abuses of speech and
expression than to arm a governmental administrative agency with the authority to
censor speech and expression in accordance with legislative standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency
to convenient latitudes as to frustrate and eviscerate the precious freedoms of speech
and expression.

Besides, any person who may feel aggrieved by the exercise of free speech, expression
and religion, is afforded, under our system, the remedy of redress in the courts of law,
justice and equity.

In short, it is far better for the individual to live in a climate of free speech and free
expression, devoid of prior restraints, even at the risk of occasional excesses of such
freedoms than to exist in an ambiance of censorship which is always a step closer to
autocracy and dictatorship.

SEPARATE (CONCURRING) OPINION

PANGANIBAN, J.:

I think the basic issues in this case are:

A.  What is the statutory extent and the constitutional limitation of the powers of the

Movies and Television Review and Classification Board (MTRCB)? More specifically, does
the MTRCB have the power to prohibit/censor television shows?

B.  In banning the television showing of the Iglesia ni Cristo videotape series, did the
respondent Board exercise its powers correctly and properly?

The first question deals with the general legal concepts and principles underlying the
functions and prerogatives of the MTRCB while the second calls for a juridical evaluation
of the specific act of the Board in classifying as "X" (or not for public viewing) specific
pre-taped or canned programs, identified as Series 115, 119, and 121 and 128, for the
reason that they allegedly constituted an "attack against another religion." The first
involves doctrine; the second application.

A. EXTENT AND LIMIT OF MTRCB’S POWERS

The statutory powers of the MTRCB are set forth in Sec. 3 of P.D. No. 1986.[1]
In implementing P.D. No. 1986 the MTRCB issued its own Rules and Regulations. At issue
in this case is Section 4[2] of such Rules.

On the other hand, these statutory powers and internally generated regulations are
limited by the Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to
free speech and religion.[3]

Mr. Justice Mendoza connects the above constitutional rights with the present
controversy by saying that "expression x x x by means of television broadcast is included
in the free speech and free press guarantee of the Constitution" and by Mr. Justice
Kapunan by writing that this "case uniquely interphases questions of religious
expression and censorship laws in the context of the constitution’s guarantees of
freedom of religion and of speech and expression."

Here before us therefore is a classic constitutional law case wherein the inherent power
of the state to safeguard the peace, well-being and general welfare of the people collide
and clash with the constitutional rights of individuals and religious institutions to
evangelize, preach, promote, teach, and even prosedytize.

Religious Freedom -- A Cherished Right

FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a

preferred status by the framers of our fundamental laws, past and present.-- Religious
freedom is absolute when it is confined within the realm of thought to a private,
personal relationship between a man’s conscience and his God, but it is subject to
regulation when religious belief is transformed into external acts that affect or afflict
others. The mere invocation of religious freedom will not stalemate the State and ipso
facto render it incompetent in preserving the rights of others and in protecting the
general welfare.

MTRCB’s Power to Review and to Censor is Valid

SECOND, I believe that as an agency of the State created to promote the general
welfare, the MTRCB under P.D. No. 1986 has the basic initiatory authority and power to
--

"approve or disapprove,

delete objectionable portion from

and/or prohibit

the importation, exportation, production, copying, distribution, sale, lease, exhibition

and/or television broadcast" of pre-taped or canned (as contra-distinguished from
"live") video-audio/film/television programs and publicity materials. I regret I cannot go
along with Mr. Justice Mendoza’s avante garde thesis that Section 3-c of P.D. No. 1986,
from where the above-quoted words were taken, is "upon its face and as applied,
unconstitutional." I note the extensive materials particularly from American cases,
buttressing his cogent stand, but, after reflection, prayer and discernment. I am
thoroughly convinced that the situation in our country, particularly the totality of our
cultural and religious milieu, is far different from that in America.

Petitioner INC contends that the MTRCB’s authority extends only to non-religious video
materials but not to religious programs, particularly those of INC, which it claims are
neither "immoral" nor "indecent." This position presents more problems than solutions.
For who will determine whether a given canned material is religious or not, and
therefore whether it can be publicly exhibited or not without its passing through the
Board? I would prefer that the State, which is constitutionally mandated to be neutral,
continue to exercise the power to make such determination, rather than leave it up to
the producer, maker or exhibitor of such material, who/which, because of vested
interests would, in the normal course, be understandably biased in his/its own favor. I
feel less discomfort with the idea of maintaining the censors’ quasi-judicial authority to
review such film materials, subject to appeal to the proper courts by aggrieved parties,
than with the prospect and consequences of doing away with such power altogether. I
agree with Mr. Justice Vitug in finding "it more prudent to have a deferment of an
exhibition that may be perceived (by the Board) to be contrary to decency, morality,
good custom or the law until, at least, the courts are given an opportunity to pass upon
the matter x x x." A contrary ruling would most regrettably remove meaningful and
necessary safeguards against a veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.

In Gonzales vs. Kalaw Katigbak[4] and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,
[5]
 this Court early on acknowledged the uniquely pervasive presence of broadcast and
electronic media in the lives of everyone, and the easy accessibility of television and
radio to just about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within reach of a blaring
radio or television set."[6] And these audiences have less opportunity to cogitate, analyze
and reject the utterances, compared to readers of printed materials.[7] It is precisely
because the State as parens patriae is "called upon to manifest an attitude of caring for
the welfare of the young"[8] that I vote for the retention of the State’s power of review
and prohibition via the MTRCB. High-minded idealism in the staunch defense of the
much-vaunted freedoms cannot but be admired. Yet, no matter how devoutly we may
wish it, not all the people share the same mindset and views nor, needless to say, the
same viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that
abuses against the public weal are likely to be committed where absolute
permissiveness is the norm. Would that, with the total absence of censorship or review,
there occur a significant increase in religious, spiritual or morally uplifting prime-time
programming! But realistically and pragmatically speaking, we see mostly the prospect
of more explicit sex-oriented advertising, unadulterated violence and outright pandering
to phone-sex addicts and the simply curious. The fact that even the Net is not free of
pornographic slime is no excuse to let down all reasonable barriers against broadcast
media offerings of muck, moral depravity and mayhem. And definitely, there is no good
and sensible reason for the State to abdicate its vital role as parens patriae, in the guise
of copying American constitutional precedents, which I respectfully submit, are
inapplicable in our factual context and time.

MTRCB Must Use Constitutional Standard

THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It
must act prudently. And it can do so ONLY if it exercises its powers of review and
prohibition according to a standard and/or a limit.

I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. No. 1986
should be struck down as an unconstitutional standard. This is martial law vintage and
should be replaced with the more libertarian "clear and present danger rule" which is
eloquently explained by JJ., Kapunan, Puno and Mendoza (and which explanation I shall
not repeat here).

Having said that, may I respectfully point out however that there is an even more
appropriate standard in the Philippine context proffered by the law itself, and that is
"contemporary Philippine cultural values." This standard under the law, should be used
in determining whether a film or video program is "(a) immoral, (b) indecent, (c)
contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of
the Philippines or its people." On the other hand, when the question is whether the
material being reviewed "encourages the commission of violence or of a wrong or
crime" per the enumeration contained in Sec. 3-c, the "clear and present danger"
principle should be applied as the standard in place of the "dangerous tendency" rule.

Just a word edgewise about cultural values. Our cultural ideals and core values
of galang, pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa,
damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala, maka-Diyos,
maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and
what we are because of these values and ideals. They delimit the areas of individual and
social behavior and conduct deemed acceptable or tolerable, and ultimately they
determine the way we as individuals uniquely conduct our relationships and express
ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to
religious thought and expression will permit an "overarching" into a constitutionally
protected area, and provides the MTRCB with a veiled excuse for clamping down against
unorthodox religious thought and expression. But such fear is highly speculative and
totally unsupported by empirical evidence. I would like to add that where a mode of
religious expression runs counter to such core values, serious questions have to be
raised about the ultimate redeeming worth of such expression. An example is in order.
Not too long ago, the so-called "Children of God" blew into town, and, under the guise
of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply
sit on our hands if these "Children" were to telecast their religious programs for OUR
children to watch, or conduct seminars over the airwaves on the hows of free sex . . .
Another example: satanic cults involve blood sacrifices . . . . In brief, I am in agreement
with the ponencia that the practice of religion cannot be totally abandoned to the
market place and governed by the policy of laissez faire.

Validity of MTRCB’s Internal Rule

FOURTH. Anent the validity of Sec. 4 of the Board’s Rules and Regulation authorizing
MTRCB to prohibit the showing of materials "which clearly constitute an attack against
any race, creed or religion x x x," I agree with Mr. Justice Vitug that the phrase "contrary
to law" in Sec. 3-c "should be read together with other existing laws such as, for
instance, the provisions of the Revised Penal Code, particularly Article 201, which
prohibit the exhibition of shows that ‘offend another race or religion.’" Indeed, where it
can be shown that there is a clear and present danger that a religious program could
agitate or spark a religious strife of such extent and magnitude as to be injurious to the
general welfare, the Board may "X-rate" it or delete such portions as may reasonably be
necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some
Middle East countries due to exacerbated religious antagonisms should be enough
lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the
felony of murder in the name of public welfare, why should the prevention of a crime
punishable by Art. 201 of the Penal Code be any less legal and less praiseworthy."

I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans
shows which "attack" a religion, whereas Art. 201 merely penalizes those who exhibit
programs which "offend" such religion. Subject to changing the word "attack" with the
more accurate "offend." I believe Section 4 of the Rules can stand.

In sum, I respectfully submit (1) that P.D. No. 1986 is constitutional, subject to the
substitution (or interpretation) of the words "dangerous tendency" with the phrase (or
as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec. 4 of the Board’s
Rules would be likewise valid, provided the words "constitute an attack" are changed
with "offend."

B. WAS THE BANNING OF THE IGLESIA PROGRAMS PROPER?

We now come to the immediate question: Did the respondent Board correctly apply
Section 3 of P.D. No. 1986 in prohibiting the public telecasting of the Iglesia program? In
short, did the INC series "offend" a religion? Juridically stated, did the respondent
MTRCB use "contemporary Filipino cultural values" in determining that said series
offended another religion such as to constitute a clear and present danger of a religions
strife which is injurious to public welfare? [Note: I advisedly used both the "values" and
"clear and present" standards in framing the question because the INC program was
apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime."]

Unfortunately, we cannot answer this question directly because the tape in question
was never submitted to the Court for viewing. Neither was there a detailed description
of its objectionable contents in the assailed Decision of the Court of Appeals or Regional
Trial Court. Nor is there extant a detailed justification prepared by respondent Board on
why it banned the program -- other than its bare conclusion that the material
constituted an attack against the Catholic and Protestant religions.

In no wise can the "remarks" in the voting slips presented before the trial court be
considered sufficient justification for banning the showing of any material.

In the face of such inadequacy of evidence and basis, I see no way that this Court could
authorize a suppression of a species of the freedom of speech on the say-so of anyone --
not even of the MTRCB. Paraphrasing People vs. Fernando, [9] the disputable
presumption (which is of statutory origin; that official duties have been regularly
performed must yield to the constitutionally enshrined freedoms of expression and of
religion. If courts are required to state the factual and legal bases of their conclusions
and judicial dispositions, with more reason must quasi-judicial officers such as censors,
especially when they curtail a fundamental right which is "entitled to the highest priority
and amplest protection."

FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to
justify its conclusion thru the use of the proper standards that the tapes in question
offended another religion. I vote to GRANT the petition insofar as it prays for the
showing of said programs. However, I vote to DENY the petition insofar as allowing the
INC to show its pretaped programs without first submitting them for review by the
MTRCB.

[1]
 Sec . 3. Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:

xxx         xxx         xxx

b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution, for television broadcast or for general viewing, imported or produced in the
Philippines, and in the latter case, whether they be for local viewing or for export.

c) To approve or disprove, delete objectionable portion from and/or prohibit the

importation, exportation, production, copying, distribution, sale, lease exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are subjudice in nature.--
[2]
 "Section 4. GOVERNING STANDARD. - a) The BOARD shall judge the motion pictures
and television programs and publicity materials submitted to it for review, using as
standard contemporary Filipino cultural values to abate what are legally objectionable
for being immoral, indecent, contrary to law and good customs, injurious to the prestige
of the Republic of the Philippines or its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime such as but not limited to:

xxx         xxx         xxx

vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; x x x."

[3]
 "Sec. 4. No law shall be passed abridging the freedom of speech, of expression x x x.
"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. x x x"

xxx         xxx         xxx

[4]
 137 SCRA 717 (July 22, 1985)

[5]
137 SCRA 628 (July 19, 1985).

[6]
 Eastern, supra, at p. 636.

[7]
 Id.

[8]
 Gonzales, supra, at p. 729.

[9]
 145 SCRA 151, 159 (October 24, 1986).

SEPARATE OPINION

VITUG, J.:

I agree with those who support the view that religious freedom occupies an exalted
position in our hierarchy of rights and that the freedom to disseminate religious
information is a constitutionally-sanctioned prerogative that allows any legitimate
religious denomination a free choice of media in the propagation of its credo. Like any
other right, however, the exercise of religious belief is not without inherent and
statutory limitations.

The Board disapproved the exhibition of a series of television programs of petitioner on

the ground that they tend to "offend and constitute an attack against other religions."
An opinion has been expressed that the non-inclusion in Section 3 of P.D. No. 1986 of an
"attack against any religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law (Executive Order
No. 876), should be clear enough to manifest a legislative intent "to do away with the
standard." A reading of Section 3 of P.D. No. 1986 shows that the Board is empowered
to "screen, review and examine all x x x television programs" and to "approve or
disprove, delete objectionable portion from and/or prohibit the x x x television
broadcast of x x x television programs x x x which, in the judgment of the BOARD (so)
applying contemporary Filipino cultural values as standard, are objectionable for being
immoral, indecent, contrary to law and/or good customs x x x." I believe that the phrase
"contrary to law" should be read together with other existing laws such as, for instance,
the provisions of the Revised Penal Code, particularly Article 201, which prohibits the
exhibition of shows that "offend another race or religion." I see in this provision a good
and sound standard. Recent events indicate recurrent violent incidents between and
among communities with diverse religious beliefs and dogma. The danger is past mere
apprehension; it has become a virtual reality and now prevalent in some parts of the
world.

In order not to infringe constitutional principles, any restriction by the Board must, of
course, be for legitimate and valid reasons. I certainly do not think that prior censorship
should altogether be rejected just because sanctions can later be imposed. Regulating
the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and
secure that right.

When I particularly ponder on the magnitude of the power of a television set, I find it
more prudent to have a deferment of an exhibition that may be perceived to be
contrary to decency, morality, good customs or the law until, at least, the courts are
given an opportunity to pass upon the matter than rely merely on the availability of
retribution for actual injury sustained. A delay is not too high a price to pay for a
possible damage to society that may well turn out to be incalculable and lasting.

In this instance, I vote for the dismissal of the petition.

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3.      Test of valid government interference
a.      Clear and present danger
a.iii.      JBL Reyes vs. Bagatsing, 125 SCRA 533

210 Phil. 457

EN BANC

[ G.R. No. L-65366, October 25, 1983 ]

JOSE B.L. REYES, IN BEHALF OF THE ANTI-BASES COALITION (ABC), V. RAMON

BAGATSING, AS MAYOR OF THE CITY OF MANILA.

R E S O L U T I O N

PER CURIAM
At the time this petition for mandamus with alternative prayer for writ of preliminary
mandatory injunction was filed on October 20, 1983 by retired Justice J. B. L. Reyes in
behalf of the Anti-Bases Coalition [ABC], no action had been taken as yet by respondent
Mayor Ramon Bagatsing of the City of Manila on the request of such organization to
hold a rally. The permit sought was "for the use of the empty field in front of
the Luneta Grandstand and Roxas Boulevard in front of the United States Embassy on
October 26, 1983, from 2:00-5:00 in the afternoon. [It] is sponsoring an International
Conference for General Disarmament, World Peace and the Removal of All Foreign
Military Bases. [It proposes] a March for Philippine Sovereignty and Independence,
participated in by foreign and Philippine delegates. The march is to start at the open
field, Luneta, and will proceed to the gate of the US Embassy, where a short program
will be held."[1] It closes with the assurance that in the exercise of the constitutional
rights to free speech and assembly, all the necessary steps will be taken by it "to ensure
a peaceful march and rally."[2]

In the answer of respondent Mayor, filed on his behalf this morning by Assistant
Solicitor General Eduardo G. Montenegro,[3] it was stated that such permit was denied
because his office was "in receipt of police intelligence reports which strongly militate
against the advisability of issuing such permit at this time and at the place applied
for."[4] It was suggested, however, in accordance with the recommendation of the police
authorities that "a permit may be issued for the rally if it is to be held at
the Rizal Coliseum or any other enclosed area where the safety of the participants
themselves and the general public may be ensured."[5]

What is here involved is the right to freedom of assembly. It guarantees that the people
may meet peaceably for consultation and discussion of matters of public concern.[6] It is
entitled to be accorded the utmost deference and respect. It is not to be limited, much
less denied, except on a showing of a clear and present danger of a substantive evil that
the state has a right to prevent.[7] Even prior to the 1935 Constitution, Justice Malcolm
had occasion to stress that it is a necessary consequence of our republican institution
and complements the right of a free speech.[8] To paraphrase the opinion of Justice
Rutledge, speaking for the majority in Thomas v. Collins,[9] it was not by accident or co-
incidence 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. They are cognate rights and the assurance afforded by the Bill of Rights
applies to all. 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. No justification for a diminution of the exercise of this right so
fundamental to the maintenance of democratic institution is allowable in the absence of
circumstances substantial in character resulting in an evil both serious and imminent.[10]

The hearing was held this morning. Petitioner was represented by

Professor Haydee Yorac of the College of Law, University of the Philippines, assisted by
former Senator Jose W. Diokno. Respondent was represented by Assistant Solicitor-
General Montenegro. It became evident in the light of the argument submitted by both
parties, that reliance on the decisions of this Court in Navarro v.
Villegas[11] and Pagkakaisa ng Manggagawang Pilipino (PMP), et al v. Hon. Ramon
D. Bagatsing and Brig. Gen. Narciso Cabrera, Jr.[12] is misplaced. There is no showing
here, unlike in those cases of a clear and present danger of a substantive evil. It is
essential for the validity of a denial of a permit which amounts to a previous restraint
or censorship that the licensing authority does not rely solely on his own appraisal what
public welfare, peace or safety may require. To justify such a limitation, there must be
proof of such weight and sufficiency to satisfy the clear and present danger test. The
possibility that subversives may infiltrate the ranks of the demonstrators is not enough.
Not that it is to be overlooked. There is, however,
the assurance of General Narciso Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a position to cope with such
emergency should it arise. That is to comply with its duty to extend protection to the
participants of such peaceable assembly. There was the commendable admission that
there were at least five previous demonstrations at the Bayview Hotel Area and Plaza
Ferguson in front of the United States Embassy where no untoward event
occurred. To the observation of Assistant Solicitor General Montenegro that the
presence of policemen may in itself be a provocation, it is a sufficient answer that they
should stay at a discreet distance, but ever ready and alert to perform their duty.

There is this issue posed by respondent Mayor. He invokes Ordinance No. 7295 of

the City of Manila prohibiting the holding or staging of rallies or demonstration within a
radius of five hundred (500) feet from any foreign mission or chancery; and for other
purposes. Such an ordinance finds justification in Art. 22 of the Vienna Convention on
Diplomatic Relations adopted in Vienna in 1961. It was concurred in by the then
Philippine Senate on May 3, 1965 and the instrument of ratification signed by
the President on October 11, 1965 and thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it was binding on the
Philippines. The second paragraph of Article 22 is relevant: "2. The receiving State is
under a special duty to take appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity." It may be admitted that the ordinance has
relevance. There is no showing, however, considering the distance between the
chancery and the embassy gate is less than 500 feet. At any rate, there is assurance
from petitioner that after a short program with remarks to be delivered by two of the
participants, all that is left for the demonstrators is to submit a copy of their
petition to whoever may receive it at the gate of the Embassy. Under such
circumstances, the suggestion of the respondent Mayor that the permit may be issued
for the rally if it were held at the Rizal Coliseum for any other enclosed area need not be
pursued further.

To the extent that there may be inconsistencies between this resolution and that of
Navarro v. Villegas, such a case is pro tanto modified. The mandatory injunction prayed
for is granted. Aquino, J., dissenting, voted to dismiss the petition on the ground that
the holding of the rally in front of the US Embassy violates Ordinance No. 7295 of the
City of Manila. Concepcion Jr., J. is on leave. De Castro, J. is on sick leave.

This resolution is without prejudice to a more extended opinion.

[1]
 Petition, 2.
[2]
 Ibid.
[3]
 He was assisted by Solicitor Roberto A. Abad.
[4]
 Answer of Respondent, 2.
[5]
 Ibid.
[6]
 Cf. Gonzales v. Commission on Elections, L-27833, April 18, 1969, 27 SCRA 835, 861.
[7]
 Ibid.
[8]
 Cf. United States v. Bustos, 37 Phil. 731 (1918)
[9]
 323 US 516 (1945).
[10]
 Cf. Schneider v. Irvington, 308 US 147 (1939).
[11]
 G.R. L-31687, February 26, 1970, 31 SCRA 731. The then Justice Castro and the
present Chief Justice dissented.
[12]
 G.R. 60294, April 30, 1982.

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3.      Test of valid government interference
a.      Clear and present danger
a.iv.     Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 (Content based
restrictions and Content Neutral Restrictions)

351 Phil. 692

EN BANC

[ G.R. No. 132231, March 31, 1998 ]

EMILIO M. R. OSMEÑA AND PABLO P. GARCIA, PETITIONERS, VS. THE COMMISSION

ON ELECTIONS, RESPONDENT.

D E C I S I O N 

MENDOZA,  J.:

This is a petition for prohibition, seeking a reexamination of the validity of §11(b) of

R.A. No. 6646, the Electoral Reforms Law of 1987, which prohibits mass media from
selling or giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections.[1] Petitioners are candidates for public
office in the forthcoming elections. Petitioner Emilio M. R. Osmeña is candidate for
President of the Philippines, while petitioner Pablo P. Garcia is governor of Cebu
Province, seeking reelection. They contend that events after the ruling in National Press
Club v. Commission on Elections [2] “have called into question the validity of the very
premises of that [decision].”[3]

There Is No Case or Controversy to Decide,

          Only an Academic Discussion to Hold

NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646 against claims that it
abridged freedom of speech and of the press.[4] In urging a reexamination of that ruling,
petitioners claim that experience in the last five years since the decision in that case has
shown the “undesirable effects” of the law because “the ban on political advertising has
not only failed to level the playing field, [but] actually worked to the grave disadvantage
of the poor candidate[s]”[5] by depriving them of a medium which they can afford to pay
for while their more affluent rivals can always resort to other means of reaching voters
like airplanes, boats, rallies, parades, and handbills.
No empirical data have been presented by petitioners to back up their claim,
however. Argumentation is made at the theoretical and not the practical level. Unable
to show the “experience” and “subsequent events” which they claim invalidate the
major premise of our prior decision, petitioners now say “there is no need for ‘empirical
data’ to determine whether the political ad ban offends the Constitution or
not.”[6] Instead they make arguments from which it is clear that their disagreement is
with the opinion of the Court on the constitutionality of §11(b) of R.A. No. 6646 and that
what they seek is a reargument on the same issue already decided in that case. What is
more, some of the arguments were already considered and rejected in the NPC  case.[7]
Indeed, petitioners do not complain of any harm suffered as a result of the
operation of the law. They do not complain that they have in any way been
disadvantaged as a result of the ban on media advertising. Their contention that,
contrary to the holding in NPC, §11(b) works to the disadvantage of candidates who do
not have enough resources to wage a campaign outside of mass media can hardly apply
to them. Their financial ability to sustain a long drawn-out campaign, using means other
than the mass media to communicate with voters, cannot be doubted. If at all, it is
candidates like intervenor Roger Panotes, who is running for mayor of Daet, Camarines
Norte, who can complain against §11(b) of R.A. No. 6646. But Panotes is for the law
which, he says, has “to some extent, reduced the advantages of moneyed politicians
and parties over their rivals who are similarly situated as ROGER PANOTES.” He claims
that “the elimination of this substantial advantage is one reason why ROGER PANOTES
and others similarly situated have dared to seek an elective position this coming
elections.”[8]
What petitioners seek is not the adjudication of a case but simply the holding of an
academic exercise. And since a majority of the present Court is unpersuaded that its
decision in NPC is founded in error, it will suffice for present purposes simply to reaffirm
the ruling in that case. Stare decisis et non quieta movere. This is what makes the
present case different from the overruling decisions[9] invoked by petitioners.
 Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in
order to clarify our own understanding of its reach and set forth a theory of freedom of
speech.
No Ad Ban, Only a Substitution of

          COMELEC Space and COMELEC

          Time for the Advertising Page and
          Commercials in Mass Media

The term political “ad ban,” when used to describe §11(b) of R.A. No. 6646, is
misleading, for even as §11(b) prohibits the sale or donation of print space and air time
to political candidates, it mandates the COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no suppression of political ads but only
a regulation of the time and manner of advertising.
Thus, §11(b) states:
Prohibited Forms of Election Propaganda. — In addition to the forms of election
propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

....

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

On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:
SEC. 90. Comelec space. -— The Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however, That in
the absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as “Comelec Space” wherein
candidates can announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within the area in
which the newspaper is circulated. (Sec. 45, 1978 EC).

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

The law’s concern is not with the message or content of the ad but with ensuring
media equality between candidates with “deep pockets,” as Justice Feliciano called
them in his opinion of the Court in NPC, and those with less resources.[10] The law is part
of a package of electoral reforms adopted in 1987. Actually, similar effort was made in
1970 to equalize the opportunity of candidates to advertise themselves and their
programs of government by requiring the COMELEC to have a COMELEC space in
newspapers, magazines, and periodicals and prohibiting candidates to advertise outside
such space, unless the names of all the other candidates in the district in which the
candidate is running are mentioned “with equal prominence.” The validity of the law
was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally divided (5-5),
however, with the result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions such as those
imposed by the election law provisions in question in this case and those found to be
unconstitutional in the cases cited by both petitioners and the Solicitor General, who
has taken the side of petitioners. In Adiong v. COMELEC[12]  the Court struck down a
regulation of the COMELEC which prohibited the use of campaign decals and stickers on
mobile units, allowing their location only in the COMELEC common poster area or
billboard, at the campaign headquarters of the candidate or his political party, or at his
residence. The Court found the restriction “so broad that it encompasses even the
citizen’s private property, which in this case is a privately-owned car.” [13] Nor was there a
substantial governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article
II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal
significance.[14]

Mutuc v. COMELEC[15]  is of a piece with Adiong.  An order of the COMELEC

prohibiting the playing of taped campaign jingles through sound systems mounted on
mobile units was held to be an invalid prior restraint without any apparent
governmental interest to promote, as the restriction did not simply regulate time, place
or manner but imposed an absolute ban on the use of the jingles. The prohibition was
actually content-based and was for that reason bad as a prior restraint on speech, as
inhibiting as prohibiting the candidate himself to use the loudspeaker. So is a ban
against newspaper columnists expressing opinion on an issue in a plebiscite a content
restriction which, unless justified by compelling reason, is unconstitutional.[16]
Here, on the other hand, there is no total ban on political ads, much less restriction
on the content of the speech. Given the fact that print space and air time can be
controlled or dominated by rich candidates to the disadvantage of poor candidates,
there is a substantial or legitimate governmental interest justifying exercise of the
regulatory power of the COMELEC under Art. IX-C, §4 of the Constitution, which
provides:
The commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible elections.

The provisions in question involve no suppression of political ads. They only prohibit
the sale or donation of print space and air time to candidates but require the COMELEC
instead to procure space and time in the mass media for allocation, free of charge, to
the candidates. In effect, during the election period, the COMELEC takes over the
advertising page of newspapers or the commercial time of radio and TV stations and
allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary period be
doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it was held that a court order
compelling a private shopping center to permit use of a corner of its courtyard for the
purpose of distributing pamphlets or soliciting signatures for a petition opposing a UN
resolution was valid. The order neither unreasonably impaired the value or use of
private property nor violated the owner’s right not to be compelled to express support
for any viewpoint since it can always disavow any connection with the message.
On the other hand, the validity of regulations of time, place and manner, under
well-defined standards, is well-nigh beyond question.[19] What is involved here is simply
regulation of this nature. Instead of leaving candidates to advertise freely in the mass
media, the law provides for allocation, by the COMELEC, of print space and air time to
give all candidates equal time and space for the purpose of ensuring “free, orderly,
honest, peaceful, and credible elections.”
In Gonzales v. COMELEC,[20] the Court sustained the validity of a provision of R.A. No.
4880 which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. -
— It is unlawful for any person whether or not a voter or candidate, or for any group, or
association of persons, whether or not a political party or political committee, to engage
in an election campaign or partisan political activity except during the period of one
hundred twenty days immediately preceding an election involving a public office voted
for at large and ninety days immediately preceding an election for any other elective
public office.

The term “Candidate” refers to any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate.

The term “Election Campaign” or “Partisan Political Activity” refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a
public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other

groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes
 and/or undertaking any campaign or propaganda for or against a
candidate or party; . . .
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the validity of a
COMELEC resolution prohibiting members of citizen groups or associations from
entering any polling place except to vote. Indeed, §261(k) of the Omnibus Election Code
makes it unlawful for anyone to solicit votes in the polling place and within a radius of
30 meters thereof.
These decisions come down to this: the State can prohibit campaigning outside a
certain period as well as campaigning within a certain place. For unlimited expenditure
for political advertising in the mass media skews the political process and subverts
democratic self-government. What is bad is if the law prohibits campaigning by certain
candidates because of the views expressed in the ad. Content regulation cannot be
done in the absence of any compelling reason.

Law Narrowly Drawn to Fit

          Regulatory Purpose

The main purpose of §11(b) is regulatory. Any restriction on speech is only

incidental, and it is no more than is necessary to achieve its purpose of promoting
equality of opportunity in the use of mass media for political advertising. The restriction
on speech, as pointed out in NPC, is limited both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the regulation,
which they call a ban, would be useless any other time than the election period.
Petitioners state: “[I]n testing the reasonableness of a ban on mountain-skiing, one
cannot conclude that it is limited because it is enforced only during the winter
season.”[22] What makes the regulation reasonable is precisely that it applies only to the
election period. Its enforcement outside the period would make it unreasonable. More
importantly, it should be noted that a “ban on mountain skiing” would be passive in
nature. It is like the statutory cap on campaign expenditures, but is so unlike the real
nature of §11(b), as already explained.
Petitioners likewise deny that §11(b) is limited in scope, as they make another
quaint argument:
A candidate may court media to report and comment on his person and his programs,
and media in the exercise of their discretion just might. It does not, however, follow that
a candidate’s freedom of expression is thereby enhanced, or less abridged. If Pedro is
not allowed to speak, but Juan may speak of what Pedro wishes to say, the curtailment
of Pedro’s freedom of expression cannot be said to be any less limited, just because
Juan has the freedom to speak.[23]

The premise of this argument is that §11(b) imposes a ban on media political
advertising. What petitioners seem to miss is that the prohibition against paid or
sponsored political advertising is only half of the regulatory framework, the other half
being the mandate of the COMELEC to procure print space and air time so that these
can be allocated free of charge to the candidates.
Reform of the Marketplace of Ideas,

          Not Permissible?

Petitioners argue that the reasoning of NPC is flawed, because it rests on a

misconception that Art. IX-C, §4 mandates the absolute equality of all candidates
regardless of financial status, when what this provision speaks of is “equality of
opportunity.” In support of this claim, petitioners quote the following from the opinion
of the Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far as practicable, the
situations of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign “war chests.”[24]

The Court meant equalizing media access, as the following sentences which were
omitted clearly show:
Section 11(b) prohibits the sale or donation of print space and air time “for campaign or
other political purposes” except to the Commission on Elections (“Comelec”). Upon the
other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to
procure “Comelec space” in newspapers of general circulation in every province or city
and “Comelec time” on radio and television stations. Further, the Comelec is statutorily
commanded to allocate “Comelec space” and “Comelec time” on a free of charge, equal
and impartial basis among all candidates within the area served by the newspaper or
radio and television station involved.[25]

On the other hand, the dissent of Justice Romero in the present case, in batting for
an “uninhibited market place of ideas,” quotes the following from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to “secure the widest possible dissemination of
information from diverse and antagonistic sources” and “to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by the
people.”[26]

But do we really believe in that? That statement was made to justify striking down a
limit on campaign expenditure on the theory that money is speech. Do those who
endorse the view that government may not restrict the speech of some in order to
enhance the relative voice of others also think that the campaign expenditure limitation
found in our election laws[27] is unconstitutional? How about the principle of one person,
one vote,[28] is this not based on the political equality of voters? Voting after all is
speech. We speak of it as the voice of the people - even of God. The notion that the
government may restrict the speech of some in order to enhance the relative voice of
others may be foreign to the American Constitution. It is not to the Philippine
Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political
equality. Art. XIII, §1 requires Congress to give the “highest priority” to the enactment of
measures designed to reduce political inequalities, while Art. II, §26 declares as a
fundamental principle of our government “equal access to opportunities for public
service.” Access to public office will be denied to poor candidates if they cannot even
have access to mass media in order to reach the electorate. What fortress principle
trumps or overrides these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those who framed the
Constitution now appear dim to us, how can the electoral reforms adopted by them to
implement the Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92
are part, be considered infringements on freedom of speech? That the framers
contemplated regulation of political propaganda similar to §11(b) is clear from the
following portion of the sponsorship speech of Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or
utilization of franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges or
concessions granted by the Government, there is a provision that during the election
period, the Commission may regulate, among other things, the rates, reasonable free
space, and time allotments for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly, honest and peaceful elections. This
has to do with the media of communication or information.[29]

On the Claim that the Reforms

          Have Been Ineffectual

Petitioners contend that §11(b) is not a reasonable means for achieving the purpose
for which it was enacted. They claim that instead of levelling the playing field as far as
the use of mass media for political campaign is concerned, §11(b) has abolished it. They
further claim that §11(b) does not prevent rich candidates from using their superior
resources to the disadvantage of poor candidates.
All this is of course mere allegation. As stated in the beginning, what petitioners
claim to be the nation’s experience with the law is merely argumentation against its
validity. The claim will not bear analysis, however. Assuming that rich candidates can
spend for parades, rallies, motorcades, airplanes and the like in order to campaign while
poor candidates can only afford political ads, the gap between the two will not
necessarily be reduced by allowing unlimited mass media advertising because rich
candidates can spend for other propaganda in addition to mass media advertising.
Moreover, it is not true that §11(b) has abolished the playing field. What it has done, as
already stated, is merely to regulate its use through COMELEC-sponsored advertising in
place of advertisements paid for by candidates or donated by their supporters.
It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is
claimed that people hardly read or watch or listen to them. Again, this is a factual
assertion without any empirical basis to support it. What is more, it is an assertion
concerning the adequacy or necessity of the law which should be addressed to
Congress. Well-settled is the rule that the choice of remedies for an admitted social
malady requiring government action belongs to Congress. The remedy prescribed by it,
unless clearly shown to be repugnant to fundamental law, must be respected. [30] As
shown in this case, §11(b) of R.A. 6646 is a permissible restriction on the freedom of
speech, of expression and of the press.
 Dissenting, Justice Panganiban argues that advertising is the most effective means of
reaching voters. He adverts to a manifestation of the COMELEC lawyer that the
Commission “is not procuring [Comelec Space] by virtue of the effects of the decision of
this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA
272.”[31]
To be sure, this Court did not hold in PPI v. COMELEC that it should not procure
newspaper space for allocation to candidates. What it ruled is that the COMELEC cannot
procure print space without paying just compensation. Whether by its manifestation the
COMELEC meant it is not going to buy print space or only that it will not require
newspapers to donate free of charge print space is not clear from the manifestation. It is
to be presumed that the COMELEC, in accordance with its mandate under §11(b) of R.A.
No. 6646 and §90 of the Omnibus Election Code, will procure print space for allocation
to candidates, paying just compensation to newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the faithful
compliance of those charged with its enforcement but by appropriate constitutional
provisions. There is a remedy for such lapse if it should happen. In addition, there is the
COMELEC Time during which candidates may advertise themselves. Resolution No.
2983-A of the COMELEC provides:
SEC. 2. Grant of “Comelec Time.”  — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as “Comelec
Time”, effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until
May 9, 1998. (Emphasis added)

Failure of Legislative Remedy Bespeaks

          of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or even repeal of
§11(b) of R.A. No. 6646. No less than five bills[32] were filed in the Senate in the last
session of Congress for this purpose, but they all failed of passage. Petitioners claim it
was because Congress adjourned without acting on them. But that is just the point.
Congress obviously did not see it fit to act on the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this Court to be
valid so that those opposed to the statute resorted to the legislative department. The
latter reconsidered the question but after doing so apparently found no reason for
amending the statute and therefore did not pass any of the bills filed to amend or repeal
the statute. Must this Court now grant what Congress denied to them? The legislative
silence here certainly bespeaks of more than inaction.

Test for Content-Neutral Restrictions[33]

 In Adiong v. COMELEC[34] this Court quoted the following from the decision of the
U.S. Supreme Court in a case sustaining a Los Angeles City ordinance which prohibited
the posting of campaign signs on public property:
A government regulation is sufficiently justified if it is within the constitutional power of
the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City
Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35]

This test was actually formulated in United States v. O’Brien.[36] It is an appropriate

test for restrictions on speech which, like §11(b), are content-neutral. Unlike content-
based restrictions, they are not imposed because of the content of the speech. For this
reason, content-neutral restrictions are tests demanding standards. For example, a rule
such as that involved in Sanidad v. COMELEC,[37] prohibiting columnists, commentators,
and announcers from campaigning either for or against an issue in a plebiscite must
have a compelling reason to support it, or it will not pass muster under strict scrutiny.
These restrictions, it will be seen, are censorial and therefore they bear a heavy
presumption of constitutional invalidity. In addition, they will be tested for possible
overbreadth and vagueness.
It is apparent that these doctrines have no application to content-neutral
regulations which, like §11(b), are not concerned with the content of the speech. These
regulations need only a substantial governmental interest to support them.[38] A
deferential standard of review will suffice to test their validity.
Justice Panganiban’s dissent invokes the clear-and-present-danger test and argues
that “media ads do not partake of the ‘real substantive evil’ that the state has a right to
prevent and that justifies the curtailment of the people’s cardinal right to choose their
means of expression and of access to information.” The clear-and-present-danger test is
not, however, a sovereign remedy for all free speech problems. As has been pointed out
by a thoughtful student of constitutional law, it was originally formulated for the
criminal law and only later appropriated for free speech cases. For the criminal law is
necessarily concerned with the line at which innocent preparation ends and a guilty
conspiracy or attempt begins.[39] Clearly, it is inappropriate as a test for determining the
constitutional validity of laws which, like §11(b) of R.A. No. 6646, are not concerned
with the content of political ads but only with their incidents. To apply the clear-and-
present-danger test to such regulatory measures would be like using a sledgehammer to
drive a nail when a regular hammer is all that is needed.
The reason for this difference in the level of justification for the restriction of speech
is that content-based restrictions distort public debate, have improper motivation, and
are usually imposed because of fear of how people will react to a particular speech. No
such reasons underlie content-neutral regulations, like regulations of time, place and
manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of
1985. Applying the O’Brien  test in this case, we find that §11(b) of R.A. No. 6646 is a
valid exercise of the power of the State to regulate media of communication or
information for the purpose of ensuring equal opportunity, time and space for political
campaigns; that the regulation is unrelated to the suppression of speech; that any
restriction on freedom of expression is only incidental and no more than is necessary to
achieve the purpose of promoting equality.
________________
The Court is just as profoundly aware as anyone else that discussion of public issues
and debate on the qualifications of candidates in an election are essential to the proper
functioning of the government established by our Constitution. But it is precisely with
this awareness that we think democratic efforts at reform should be seen for what they
are: genuine efforts to enhance the political process rather than infringements on
freedom of expression. The statutory provision involved in this case is part of the reform
measures adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed
bills which were consolidated into what is now R.A No. 6646 with near unanimity. The
House of Representatives, of which petitioner Pablo P. Garcia was a distinguished
member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-
0. [40]
In his recent book, The Irony of Free Speech, Owen Fiss speaks of “a truth that is full
of irony and contradiction: that the state can be both an enemy and a friend of speech;
that it can do terrible things to undermine democracy but some wonderful things to
enhance it as well.”[41] We hold R.A. No. 6646, §11(b) to be such a democracy-enhancing
measure. For Holmes’s marketplace of ideas can prove to be nothing but a romantic
illusion if the electoral process is badly skewed, if not corrupted, by the unbridled use of
money for campaign propaganda.
The petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan, and  Martinez, JJ., concur.
Romero and  Panganiban, JJ., see  dissenting opinion.
Melo, J., join separate opinion of Justice Puno and Justice Vitug.
Puno,  and Vitug, JJ.,  has separate opinion.
Quisumbing and  Purisima, JJ., join  dissenting opinion of Justice Romero and Justice
Panganiban.

[1]
 As petitioners filed their petition before they filed certificates of candidacy, they
assert an interest in this suit “as taxpayers and registered voters” and “as prospective
candidates.” Rollo, p. 6.
[2]
 207 SCRA 1 (1992).
[3]
 Rollo, p. 3.
[4]
 Art. 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.
A related provision states:

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 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.
[5]
 Rollo, p. 17.
[6]
 Memorandum for Petitioners, p. 21.
[7]
 Thus, this Court held in NPC v. COMELEC:
My learned brother in the Court Cruz, J. remonstrates, however, that “[t]he financial
disparity among the candidates is a fact of life that cannot be corrected by legislation
except only by the limitation of their respective expenses to a common maximum. The
flaw in the prohibition under challenge is that while the rich candidate is barred from
buying mass media coverage, it nevertheless allows him to spend his funds on other
campaign activities also  inaccessible to his straitened rival.” True enough Section 11(b)
does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se  without
regard to their financial affluence or lack thereof. But a regulatory measure that is less
than perfectly comprehensive or which does to completely obliterate the evil sought to
be remedied, is not for that reason alone constitutionally infirm. The Constitution does
not, as it cannot, exact perfection in government regulation. All it requires, in accepted
doctrine, is that the regulatory measure under challenge bear a reasonable nexus with
the constitutionally sanctioned objective. That the supervision or regulation of
communication and information media is not, in itself, a forbidden modality is made
clear by the Constitution itself in Article IX(C)(4). 207 SCRA at 14.
[8]
 Answer-in-Intervention, p. 2.
[9]
 Philippine Trust Co. v. Mitchell, 50 Phil. 30 (1927); Kilosbayan v. Morato, 246 SCRA 540
(1995).
[10]
 207 SCRA 1, 13-14 (1992).
[11]
 35 SCRA 285 (1970).
[12]
 207 SCRA 712 (1992).
[13]
  Id. at 720.
[14]
  Id. at 722.
[15]
 36 SCRA 228 (1970).
[16]
 Sanidad v. COMELEC, 181 SCRA 529 (1990).
[17]
 In Philippine Press Institute v. COMELEC, 244 SCRA 272 (1995), we held that for space
acquired in newspapers the COMELEC must pay just compensation. Whether there is a
similar duty to compensate for acquiring air time from broadcast media is the question
raised in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC,  G.R. No. 132922, now pending before this Court.
[18]
 447 U.S. 74, 64 L.Ed2d 741 (1980).
[19]
  See, e.g.,  J. B. L. Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v. Villegas, 31
SCRA 730 (1970); Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v. Fugoso, 80 Phil. 71
(1948).
[20]
 27 SCRA 835 (1969).
[21]
 Res., G.R. No. 73551, Feb. 11, 1988.
[22]
 Memorandum for Petitioners, p. 10.
[23]
  Id., p. 11.
[24]
 207 SCRA at 7 (emphasis by petitioners).
[25]
  Ibid.
[26]
 424 U.S. 1, 48-49, 46 L.Ed. 659, 704-705 (1976). The Solicitor General also quotes this
statement and says it is “highly persuasive in this jurisdiction.” Memorandum of the
OSG, p. 27.
[27]
 R.A. No. 7166, §13; OEC, §100.
[28]
  See Macias v. COMELEC, 113 Phil. 1 (1961).
[29]
 1 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION 624, Session of July 16,
1986.
[30]
 Gonzales v. COMELEC, 27 SCRA 835 (1969).
[31] 
Compliance, p. 4.
[32]
 The bills are S. Nos. 178, 595, 856, 1177 and 1224, which were consolidated into S.
No. 2104.
[33]
 For helpful discussion of the distinction between content-based and content-neutral
regulations, see generally GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R. SUNSTEIN,
AND MARK V. TUSHNET, CONSTITUTIONAL LAW 1086-1087, 1172-1183, 1323-1334
(1996); GERALD GUNTHER AND KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 1203-
1212 (1997); Geoffrey R. Stone, Content-Neutral Restrictions,  54 Univ. of Chi. Law Rev.
46 (1987).
[34]
 207 SCRA 712 (1992).
[35]
  Id. at 718 (internal quotations omitted).
[36]
 391 U.S. 367, 20 L.Ed.2d 672 (1968).
[37]
 181 SCRA 529 (1990).
[38]
  See, e.g., Primicias v. Fugoso, 80 Phil. 71 (1948).
[39]
 PAUL A. FREUND, ON UNDERSTANDING THE SUPREME COURT 25-26 (1949).
[40]
 4 RECORD OF THE HOUSE OF REPRESENTATIVES 261 (Dec. 14, 1987); 1 RECORD OF
THE SENATE 1644 (Oct. 19, 1987) .
[41]
 THE IRONY OF FREE SPEECH 83 (1996).

DISSENTING OPINION

PANGANIBAN, J.:

The Court, by majority vote, decided to uphold the ban on political advertising, as
provided under Section 11(b)[1] of RA 6646, and to reiterate the 1992 ruling in National
Press Club vs. Comelec[2] for two main reasons:
1.     To equalize "as far as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the prohibition is to equalize the "political
playing field" for rich and poor candidates.

2.     While conceding that Section 11(b) of RA 6646 "limit[s] the right of free speech and
of access to mass media of the candidate themselves," the Court justifies the ad ban by
alleging that: (a) it is limited, first, in its "duration," (i.e. the ban applies only during the
"election period") and, second, in its "scope" (i.e. the prohibition on the sale and the
donation of print space and air time covers only those for "campaign and other political
purposes" and does not restrict the legitimate reporting of news and opinions by media
practitioners who are not candidates); and (b) the Comelec is authorized to procure, by
purchase or donation, media time and space which are to be fairly, freely and equally
distributed among the candidates. Otherwise stated, the grant of Comelec time and
space, free of charge, to said candidate makes up for admitted infringement of the
constitutional right to free speech and access to mass media during the campaign
period.

With all due respect, I disagree with the majority's view and join the stirring Dissenting
Opinions of Justice Hugo E. Gutierrez, Jr.,[3] Isagani A. Cruz[4] and Edgardo L.
Paras[5] in NPC vs. Comelec, and of Justice Flerida Ruth Romero in the present case. I will
no longer repeat their cogent legal arguments. Let me just add my own.

1.                      Ad Ban Not Pro-Poor

But Anti-Poor

The majority argues that the ad ban is pro-poor, because it prevents the rich from
buying media time and space which the poor cannot afford or match. This argument
assumes that media advertising is expensive and, thus, beyond the reach of the poor.
I respectfully submit that such argument is bereft of factual basis. True, a full-page
ad in a major broadsheet[6] may be priced at about P100,000, a 30-second commercial in
a major television,[7]7 anywhere from P15,000 to P90,000 depending on the time and
the program; while airtime of an equal duration in a radio station, anywhere from P300
to P4,500.[8]8 But even with such price tags, media ads are not necessarily expensive,
considering their nationwide reach, audience penetration, effectiveness and persuasive
value.
Realistically, expenses are involved in a candidacy for a national office like the
presidency, the vice-presidency, and the senate. In recognition of this, the law has
limited campaign expenditures to ten pesos (P10) for every voter in the case of
candidates for president and vice-president, and three pesos (P3) per voter in their
constituencies, for other candidates.[9]`Sec. 100 Limitations upon expenses of
candidates.- Authorized Expenses of Candidates and Political Parties. - The aggregate
amount that a candidate or registered political party may spend for election campaign
shall be as follows:

(a) For candidates - Ten pesos (P10.00) for President and Vice-President and for other
candidates. Three pesos (P3.00) for every voter currently registered in the constituency
where he filed his certificate of candidacy. Provided, That a candidate without any
political party may be allowed to spend Five pesos (P5.00) for every such voter, and

(b) For political parties - Five pesos (P5.00) for every voter currently registered in the
constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in

kind to any candidate or political party or coalition of parties for campaign purposes,
duly reported to the Commission, shall not be subject to the payment of any gift tax."9
Anyone - whether rich or poor - who aspires for such national elective office must
expect to spend a considerable sum, whether of his own or from allowable donations, to
make himself and his platform or program of government known to the voting public.

Media Ads

Comparatively Cheaper

While a one-page black-and-white ad in a major daily costs about P100,000, it is

replicated, however, in about 250,000 copies[10]10 circulated to an equal number of
offices and households nationwide on the very same day of its publication. Each
newspaper copy has an average readership of six. Hence, the ad is exposed to about 1.5
million (250,000 x 6) people all over the country. Consider, too, the people discuss what
they read while they congregate in barber shops, corner stores, and other places where
people gather. Sometimes, radio and tv broadcasters pick up and comment on what
they read on newspapers. So, the reach, pass-on readership, multiplier effect and
effectivity of a broadsheet ad are practically immeasurable.
On the other hand, let us consider the alternative of printing and distributing a
poster or handbill of similar size. The actual printing cost of such handbill on newsprint
is twenty centavos (P.20) per copy.[11]11 The cost of 250,000 copies (the circulation of a
major daily) would thus be P50,000 (250,000 x P.20). But that is only the printing cost.
To disseminate these handbills nationwide on the same day of printing without the
distribution network of a major newspaper is almost impossible. Besides, the cost would
be horrendous. To approximate the circulation of a major newspaper is almost
impossible. Besides, the cost would be horrendous. To approximate the circulation of a
major newspaper, the most practical substitute would be the mails. Ordinary mail is
now P4.00 per posting. Hence, the distribution cost through the mails would be P1
million (250,000 x P4.00). And this does not include the manual work and cost of sorting,
folding and individually addressing these 250,000 pieces of mail matter. (This alternative
assumes the availability of a mailing list equivalent to the reach of a newspaper.) Even if
third-class mail is used, the distribution cost alone will still be P3.00 per individual
mailing, or P750,000 for all 250,000 copies.[12]12
This alternative is not only much more expensive but much less effective as well,
because it has no guarantee of same-day delivery, has a diminished readership
multiplier effect and is tremendously cumbersome in terms of sorting and distribution.
Furthermore, a candidate need not buy one-page ads. He can use quarter page ads
at one fourth the cost or about P25,000 only per issue. To be effective in his ad
campaign, he may need to come out once every three days (to be spread out among the
different dailies) or 30 times during the 90-day campaign period[13]13 for national
candidates. Hence, he will spend, for the entire duration of the campaign,
about P750,000 (P250,000 x 30). I repeat, to advertise a one-fourth page ad at least 30
times in various major dailies, a candidate needs to spend only P750,000 - an amount
less than the alternative of printing and distributing nationwide ONLY ONCE a less timely
and less effective equivalent leaflet or poster.
A similar detailed comparison of cost-benefit could be written for radio and
television. While, at the initial glance, the rates for these electronic media may appear
high, still they could be proven more beneficial and cheaper in the long term because of
their "value-for-money" appeal.[14]vs. Dans Jr., 137 SCRA 628, 635-636, July 19, 1985,
through Justice Hugo E. Gutierrez Jr., described the pervasive effect of broadcast media
in the wise:
"The broadcast media have also established a uniquely pervasive presence in the lives of
all Filipinos. Newspaper and current books are found only in metropolitan areas and in
the pablaciones of municipalities accessible to fast and regular transportation. Even
here there are low income masses who find the cost of books, newspaper, 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 the 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. x x x"14

Candidates Should Not Be Denied

Option to Use Media Ads.

From the foregoing, it is clear that mass media truly offers an economical, practical,
and effective means by which a relatively unknown but well-qualified political candidate
who has limited resources, particularly one running for a national office, may make
known to the general public during the short campaign period[15]15 his qualifications,
platform of government, stand on vital issues, as well as his responses to questions or
doubts about his capabilities, his character or any other matter raised against him.
Deprived of media ads, the rich candidate, unlike his poor opponent, resorts to
expensive propaganda - the holding of public meetings and rallies before large but
oftentimes "paid" crowds, helicopter stops and motorcades spanning several towns and
cities, the production of ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign paraphernalia. These forms of
electoral promotion ineluctably require a large political machinery and gargantuan
funds (organization + people / supporters + communication gadgets + vehicles +
logistics). To combat this formidable and expensive election behemoth, the poor
candidate's most viable alternative may be media advertising.
In NPC vs. Comelec, it was feared that the "unlimited purchase of print space and
radio and television time x x x by the financially affluent [was] likely to make a crucial
difference." But I say such fear is unfounded. First, because campaign expenses are
limited by law, Second, the possibility of the abuse and misuse of media ads by the
"financially affluent" is not an argument in favor of their total withdrawal, for - to use
the very words of the majority in NPC - "there is no power or authority in human society
that is not susceptible of being abused."[16] Third, the absence of access to media
advertising totally deprives the poor candidate of his most formidable weapon in
combating the "huge campaign war chests" of rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING SHOULD BE
BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR FOR THAT MATTER, THEY MAY
ABUSE OR MISUSE IT. Quite the contrary, in terms of reach, pass-on readership,
multiplier effect and cost-benefit advantage, media advertising may be the cheapest
and most effective campaign mechanism available. I am not suggesting that every
candidate shuld use media ads. In the final analysis, it is really up to the candidates and
their campaign handlers to adopt such mode and means of campaigning as their
budgets and political strategies may require 16a16a What I am stressing is that the
candidates, whether rich or poor, should be given the option of campaigning through
media, instead of being forced to use other forms of propaganda that could turn out to
be less effective and more expensive.
 2.                      Ad Ban Not Limited;

Comelec Time and Space Inutile

I now come to the second major point. The majority rationalizes the ad ban by
saying that it has a very limited duration and scope and that, in any event, the Comelec's
grant of free media time and space to candidates more than makes up for the violation
of their constitutional right. I disagree.

Ad Ban Not

Limited in Duration

The ad ban is constitutional because, according to the majority, it is limited in

duration for the reason that it is enforced only during the election period. In my humble
view and with all due respect, this is both erroneous and illogical. A political
advertisement is relevant only during the campaign period - not before and not after. As
petitioners put it, a ban on mountain-skiing during the winter season cannot be said to
be limited in duration, just because it is enforced during winter. After all, skiing is
indulged in only when the mountain slopes are covered with snow. To add a further
parallel, a ban against the planting of rice during the rainy season is not limited simply
because it covers only that season. After all, nobody plants rice during summer when
the soil is parched. In the same manner, campaign ads are not resorted to except during
the campaign period. And their prohibition does not become any less odious and less
comprehensive just because the proscription applies only during the election season.
Obviously, candidates need to advertise their qualifications and platforms only during
such period. Properly understood, therefore, the prohibition is not limited in duration
but is in fact and in truth total, complete and exhaustive.

Ad Ban Neither

Limited in Scope

The majority also claims that the prohibition is reasonable because it is limited in
scope; that is, it refers only to the purchase, sale or donation of print space and air time
for "campaign or other political purposes" and does not restrict news reporting and
commentaries by editors, columnists, reporters, and broadcasters. But the issue here is
not the freedom of media professionals.[17] The issue is the freedom of expression
of candidates. That the freedom of the press is respected by the law and by the Comelec
is not a reason to trample upon the candidates' constitutional right to free speech and
the people's right to information. In this light, the majority's contention is a clear case
of non sequitor. Media ads do not partake of the "real substantive evil" that the state
has a right to prevent[18] and that justifies the curtailment of the people's cardinal right
to choose their means of expression and of access to information.
Besides, what constitutes "campaign or other political purposes"? Neither RA 6646
nor the majority provides an explanation. If candidates buy 30 column-inches of
newspaper space or one hour of prime radio/tv time everyday, and if they retain
professional journalists to use such space/time to defend them from attacks and to
promote their platforms of government, should such purchase be covered by the ad
ban, or should it be allowed as an exercise of the freedom of journalist to express their
views? Even more insidiously, should regular columnists' daily defense of their chosen
candidates and daily promotion of their platforms of government constitute donated
space for "campaign and other political purposes"?[19]

Ad Ban Not Compensated for or

Justified by Free "Comelec Time"

Finally, the majority opines that the grant of free Comelec media time and space to
candidates more than makes up for the abridgment of the latter's right to buy political
ads.[20]:
"Plebiscite issues are matters of public concern and importance. The people's right
to be informed and to be able to freely and intelligently make a decision would be
better served by access to an unabridged discussion of the issues, including the forum.
The people affected by the issues presented in a plebiscite should not be unduly
burdened by restrictions on the forum where the right to expression may be exercised.
Comelec spaces and Comelec radio time may provude a forum for expression but they
do not guarantee full dissemination of information to the public concerned because
they are limited to either specific portions in newspaper or to specific radio or television
times" (Empahasis ours.)20 With due respect, I believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tells us that under its Resolution
No. 3015, it gave due course to eleven candidates for president [21] nine for vice
president,[22] and forty for senators.[23] It is claimed however that, all in all, there are
really about 100,000 candidates running for about 17,000 national and local positions in
the coming elections, from whom a voter is expected to choose at least 30 [24] to vote for.
With so many candidates, how can the ordinary, sometimes nonchalant, voter ever get
to know each of the political hopefuls from whom he will make an intelligent selection?
In the crucial choice of president alone, how can ordinary citizens intelligently and
sufficiently assess each of the 11 candidates in order to make a sensible choice for a
leader upon whom to entrust the momentous responsibility of carving the country's
path in the next millenium?
The Comelec answers these questions with Resolution No. 2983-A, promulgated on
March 3, 1998, in which it asks "every radio broadcasting and television station
operating under franchise [to] grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as 'Comelec
Time' effective February 10, 1998 for candidates for President, Vice President and
Senators, and effective March 27, 1998 for candidates for local elective offices, until
May 9, 1998," to be allocated "by lottery" among candidates requesting its use. But
Comelec, in the same Compliance, informed the Court that "it is not procuring 'Comelec
Space' (in any newspaper) by virtue of the effects of the decision of this Honorable
Court in the case of Philippines Press Institute (PPI) vs. Comelec, 224 SCRA 272."[25]25
In sum, the Comelec intends to secure 30 minutes of "Comelec time" for every radio
and broadcasting station to be allocated equally to all candidates. The Comelec does not
state exactly how it intends to allocate - except "by lottery" - these 30 minutes per
station to the 17,000 candidates, considering that these stations do not have the same
reach, audience and penetration. The poll body does not say exactly how many stations
are involved, what budget allocation, if any, it has for the purpose,[26]26 when each
candidate will be allowed to speak and for how long, how the Comelec intends to cover
the 77 provinces, 68 cities and 42,000 barangay nationwide, and many other details.
Moreover, while the Comelec smugly speaks of free Comelec time being effective on
"February 10, 1998" for national candidates, Resolution 2983-A itself was promulgated
only on March 3, 1998.
Up to this writing, I have yet to hear of any major candidate using this so-called free
Comelec broadcast time. In fact, during the oral argument of this case on March 5, 1998,
Comelec Chairman Bernardo P. Pardo frankly admitted that no candidate had applied
for an allocation of Comelec time. Not even petitioners. This is the best testament to the
utter inutility and ineffectivity of Comelec time. Indeed, it cannot be a substitute, much
less a viable alternative, to freely chosen but paid for media ads. It cannot compensate
for the violation of the candidates' right to free speech and media access, or for the
electorate's right to information.
If the real objective is to level the playing field for rich and poor candidates, there
must be, as there already are, a cap on election expenses and a shortening of the
campaign period. The incapability of the Comelec to effectively monitor and strictly
implement such expense and time limitations should not take its toll upon
constitutionally enshrined liberties of the people, including the candidates. To prohibit
access to mass media, except only through Comelec time -- which has been indubitably
shown to be sorely insubstantial, insignificant and inutile -- is not, and is far from being,
a solution to the problems faced by poor candidates. The simple remedy is to lift the
media ban.

Epilogue

The ad ban is a blatant violation of the candidates' constitutional right to free

speech[27] and the people's right to information.[28] Being the last refuge of the people
and the guardian of the Constitution, this Court should then, with alacrity, view the ban
with suspicion, if not with outright rejection.[29] To repeat, the alleged limitations are in
reality nonexisten;t and the "pro-poor" justification, without logic.
To say that the prohibition levels the playing field for the rich and the poor is to
indulge in a theoretical assumption totally devoid of factual basis. On the contrary,
media advertising may be -- depending on a contender's propaganda strategy -- the
cheapest, most practical and most effective campaign medium, especially for national
candidates. By completely denying this medium to both the rich and the poor, this Court
has not leveled the playing field. It has effectively abolished it! Far from equalizing
campaign opportunities, the ban on media advertising actually favors the rich (and the
popular) who can afford the more expensive and burdensome forms of propaganda,
against the poor (and the unknown) who cannot.
The allegation that the prohibition is reasonable because it is limited in duration and
scope is itself most unreasonable, bereft as it is of logic and basis. Even more shallow is
the argument that the Comelec-given media time and space compensate for such
abridgment. In fact, the Comelec is not even procuring any newspaper space. In any
event, the fact that not even the poorest candidates have applied for available
opportunities is the best testament to its dubiousness. That petitioners who are
seasoned political leaders prefer to pay for their own media ads rather than to avail
themselves of the Comelec freebies refutes the majority's thesis of
compensation. Indeed, the free things in life are not always the best. [30]  They may just be
bureaucratic waste of resources.
Before I close, a word about stare decisis. In the present case, the Court is
maintaining the ad ban to be consistent with its previous holding in NPC vs. Comelec.
Thus, respondent urges reverence for the stability of judicial doctrines. I submit,
however, the more important than consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean Roscoe Pound explains, "Law must be stable but
it cannot stand still." Verily, it must correct itself and move in cadence with the march of
the electronic age. Error and illogic should not be perpetuated. After all, the Supreme
Court, in many cases,[31] has deviated from stare decisis and reversed previous doctrines
and decisions. It should do no less in the present case.
Elections can be free, honest and credible not only because of the absence of the
three execrable "G's" or "guns, goons, and gold." Beyond this, the integrity and
effectivity of electoral democracy depend upon the availability of information and
education touching on the three good "P's" - principles, platforms and program of the
candidates. Indeed, an intelligent vote presupposes a well-informed voter. If elections
must be rid of patronage, personalities and popularity as the main criteria of the
people's choice, we must allow candidates every opportunity to educate the voters. And
corollarily, the people must be accorded every access to such information without much
effort and expense on their part.
With all due respect, I submit that the ad ban is regressive, repressive and
deceptive. It has no place in our constitutional democracy.
WHEREFORE, I vote to GRANT the petition and to CONDEMN Section 11(b) of RA
6646 as UNCONSTITUTIONAL and VOID.

[1] "Sec. 11. Prohibited Forms of Election Propaganda - In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa

Blg. 881, it shall be unlawful:

          x x x    x x x     x x x

          b) for any newspaper, radio broadcasting or television station, other mass media
or any person making use of the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer who is a candidate for any elective public office shall take a
leave of absence from his work as such during the campaign period."
[2]
 207 SCRA 1, March 5, 1992, per Feliciano, J.
[3]
 Ibid., pp. 28-30. The following are excerpts:
          "Sec. 11(b) of R.A. No. 6646 will certainly achieve one result - keep the voters
ignorant of who the candidates are and what they stand for."

          "The implementation of Section 11(b) will result in gross inequality. A cabinet

member, an incumbent official, a movie star, a basketball player, or a conspicuous clown
enjoys an affair advantage over a candidate many times better qualified but less
known."

          "x x x We owe it to the masses to open all forms of communication to them during
this limited campaign period. A candidate to whom columnists and radio-television
commentators owe past favors or who share their personal biases and convictions will
get an undue amount of publicity. Those who incur the ire of opinion makers cannot
counteract negative reporting by buying his own newspapers space or airtime for the
airing of his refutations."

          "Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly
reprehensible because it is imposed during the limited period of the election campaign
when information is most needed. x x x"
[4]
 Ibid.,  pp. 31-43.

I quote significant, enlightening portions as follows:

          "The citizen can articulate his views, for whatever they may be through the many
methods by which ideas are communicated from mind to mind. Thus, he may speak or
write or sing or dance, for all these are forms of expression protected by the
Constitution. So is silence, which 'persuades when speaking fails.'

x x x The individual can convey his message in a poem or a novel or a tract or in a public
speech or through a moving picture or a stage play. In such diverse ways may he be
heard. There is no of course no guaranty that he will be heeded, for acceptability will
depend on the quality of his thoughts and of his person, as well as the mood motivation
of his audience. But whatever form he employs, he is entitled to the protection of the
Constitution against any attempt to muzzle his thoughts."

          It is for the purpose of properly informing the electorate of the credentials and
platforms of the candidates that they are allowed to campaign during the election
period. x x x

          It is curious, however, that such allowable campaign activities do not include the
use of the mass media because of the prohibition is Section 11(b) of Rep. Act No. 6646 x
x x"

          "The lawful objective of Section 11(b) may be readily conceded. The announced
purpose of the law is to prevent disparity between the rich and the poor candidates by
denying both of them access to the mass media and thus preventing the former from
enjoying and undue advantage over the latter. There is no question that this is a laudible
goal. Equality among the candidates in this regard should be assiduously pursued by the
government if the aspirant with limited resources is to have any chance at all against an
opulent opponent who will not hesitate to use his wealth to make up for his lack of
competence.

          To pursue a lawful objective, only a lawful method may be employed even if it may
not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link
between the means employed and the purpose sought to be achieved has not been
proved and that the method employed is unduly oppressive."

          "But the most important objection to Section11(b) is that it constitutes prior

restraint on the dissemination of ideas. In a word, it is censorship . It is that officious
functionary of the repressive government who tells he citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to sy on pain of
punishment should he be so rash to disobey."

          "I remind the Court of doctrine announced in Bantam Books v. Sullivan tha tany
sustem of prior restraint of expression comes to this Court bearing a heavy presumption
against its validity. That presumption has not been refuted in the cases subjudice. On
the contrary, the challenged provision appears quite clearly to be invalid on the face
because of its undisguised attempt at censorship. The feeble effort to justify it in the
name of social justice and clean elections cannot prevail over the self-evident fact that
what we have here is an illegal intent to suppress free speech by denying access to the
mass media as the most convinient instruments of the molding of public opinion. And it
does not matter that the use of these facilities my involve financial transactions, for the
element of hte commercial does not remove them from the protection of the
Constitution."

          "I submit thatall the channels of communication should be kept open to insure the
widest dissemination of information learning on the forthcoming election. An
uninformed electorate is not likely to circumspect in the choice of official who will
represent them in councils of government. That they may exercise their suffrage wisely,
it is important thay be apprised of the election issues, including the credentials, if any, of
the various aspirants for public office. This is especially necessary now in view of the
dismaying number of mediocirties who by an incredible aberration of ego, are relying on
their money, or their tinsel popularity, or their private armies, to give them the plum of
victory.

          For violating the liberty to know, to utter and to argue freely according to
conscience, above all liberties, the challenged law must be struck down. For blandly
sustaining it instead, the majority has inflicted a deep cut on the Constitution that will
ruthlessly bleed it white, and with it this most cherished of our freedoms."
[5]
 Ibid.,  pp. 43-44, where he said in this part:
          "The freedom to advertise one's political candidacy in the various forms of media
is clearly a significant part of our freedom of expression and of our right of access to
information. Freedom of expression in turn includes among other things, freedom of
speech and freedom of the press. Restrict these freedoms without rhyme or reason, and
you violate the most valuable feature of the democratic way of life.

          The majority says that the purpose of the political advertisement provision is to
prevent those who have much money from completely overwhelming those who have
little. This is gross error because should the campaign for votes be carried out in other
fora (for example, rallies and meetings) the rich candidate can always be at a great
advantage over his less fortunate opponent. And so the disparity feared will likewise
appeared in campaigns other than through media. x x x"
[6] Like the Philippine Daily Inquirer, the Manila Bulletin and the Philippine Star.

[7]
 Like ABS-CBN Channel 2 or GMA Channel 7
[8]
 Petition in Intervention, p. 28.
[9]
 Sec. 100. BP Blg. 881, as amended by Sec. 13, RA 7166, which provides:
[10]
 This is the claimed circulation of the three major broadsheets - Philippine Daily
Inquirer, Manila Bulletin and Philippine Star.
[11]
 This is the present cost actually paid by a major broadsheet for every page of
printing, including the paper and the ink used. Commercial printing presses actually
charge 3 to 4 times this amount for posters smaller than a one-page newspaper ad.
[12]
 The cost is P3 for the first 50 grams in bulk mailing, a method which would entail add-
on for the materials to reach the individual voters. Hence, to factor out these add-on
costs while approximating the reach of a newspaper, the cost of mailing by piece was
computed instead.
[13]
 Sec. 3 BP. Blg. 881, as amended by Sec. 5, RA 7166.
[14]
 The Court, in Eastern Broadcasting Corp.
[15]
 90 days for candidates for president, vice president and senator, and 45 days for the
other elective positions (Sec. 3, BP Blg. 881, as amended by Sec. 5, RA 7166).
[16]
 In national Press Club, supra, at pp. 12-13, the Court gives this argument:
"It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral
Commission [63 phil 139, 177 (1936)] that the possibility of abuse is no argument
against the concession of the power or authority involved, for there is no power or
authority in human society that is not susceptible of being abused."
16a
 In his column in the Manila Standard on March 30, 1998 entitled "A survey about
political ads," Mahar Mangahas, president of the Social Weather Stations, explains why
"it pays to advertise" political candidates, "judging from the results of the Social
Weather Stations survey of Feb. 21-27, 1998." Interestingly, the SWS survey showed
that the 1998 political ads best recalled by the public were those of the two leading
candidates -- Joseph Estrada (55%) and Alfredo Lim (54%) - followed by Jose de Venecia
(37%), Lito Osmeña (35%), Renato de Villa (19%), Raul Roco (11%), Miriam Defensor
Santiago (9%), Imelda Marcos (3%), and Juan Ponce Enrile (2%). Interestingly also, the
topnotchers in the ad survey cannot be termed "rich" nor the bottom dwellers, "poor,"
thereby reinforcing my thesis that the effectiveness of political ads is not dependent on
financial fortunes. Rather, political ads are complementary to the overall political
strategy of each candidate.
[17]
 This specific issue has been resolved in Standard v. Comelec, 181 SCRA 529, January
29, 1998, per medialdea, J., whre the Court ruled:
"However, neither Article IX-C of the Constitution [Comelec's power to supervise and
regulate the operation of public utilities and the mass media during the election period]
nor Sec. 11 (b) 2nd par of RA 6646 can be construed to mean that the Comelec has also
been granted the right to supervise and regulate the exercise by media practitioners
themselves of their right to expression during the plebiscite periods. Media practitioners
are neither the franchise holders nor the candidates. x x x Therefore Section 19 of
Comelec Resolution No. 2167 [prohibiting columnists, commentators or announcers to
use their column, radio or TV time ti campaign for or against plebiscite issues] has no
statutory basis.

          x x x    x x x    x x x

Anent respondent Comelec's argument that Section 19 of Comelec Resolution No. 2167
does not absolutely bar petitioner-columnist from expressing his views and/or from
campaigning for or against the organic act because he may do so through the Comelec
space and/or Comelec radio/television time, the same is not meritorious. While the
limitation does not absolutely bar petitioner's freedom of expression, it is a restriction
on his choice of the forum where he may express his views. No reason was advanced by
respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable
reason." [Italics in the original]
[18]
 Using the "clear and present danger test" as enunciated in Gonzales vs. Comelec, 27
SCRA 835, 877, April 18, 1969, per Fernando, J., citing Schenk v. United States, 249 US
47, 52, 63 L. ed. 470, 473-474 (1919); Whitney v. California, 247 US 357, 373, 71 L. ed.
192, 202-203 (1927); Dennis v. United States, 341 US 494, 510, 95 L. ed. 1137, 1153
(1950); and several oter cases. See also Primicias vs. Fugoso, 80 Phil 71, 87-88, Jnauary
27, 1948, per Feria, J., Adiong vs. Comelec, 207 SCRA 712, 715, March 31, 1992, per
Gutierrez Jr., J., Eastern Broadcasting Corp. vs.  Dans Jr., supra.
[19]
 "PPI appeals to media companies not to sell space, air time to pols," Philippine Daily
Inquirer, March 5, 1998. The following are excerpts:
"The appeal was made as the PPI expressed `grave concern and alarm over the
overnight proliferation of `fly-by-night' newspaper who take advantage of the political
campaign season for racketeering

"The institute is dismayed by the reported abdication by a number of media owners and
editors of their journalistic responsibilities by selling their editorial pages and air time to
political canfifates, PPI executive director Ermin Garcia said in a statement"

See also " Ad ban worsens corruption in media, "Philippine Daily Inquirer, March 31,
1998, which reads in part:

"A Media officer of a candidate revealed that in one national daily, the going price for a
page one photo is P5,000. The reporter who acts as broker gets P1,000, the editor who
puts it out gets P4,000. That s cheaper than the price of an equivalent column space for
advertisement in the inside pages.

A presidential candidate's photo on the front page fetches P15,000, while for a
senatorial candidate it is P10,000.

A banner story costs P25,000. A front page above the fold costs P20,000. A small press
release costs P5,000."
[20]
 In contrast, this was what the Court said in unanimity in Standard, supra
[21]
"1. Jose C. De Venecia, Jr.      -- LAKAS-NUCD UDMP

2. Renato S. De Villa                 -- Partido para sa Demokratikong

                                         Reporma/Lapiang Manggagawa

                                         Coalition

3. Santiago F. Dumlao, Jr.                     -- Kilusan para sa Pambansang

                                         Pagpapanibago

4. Juan Ponce Enrile                 -- Independent (LP)

5. Joseph E. Estrada                -- Partido ng Masang Pilipino -

                                         LAMMP

6. Alfredo S. Lim                     -- Liberal Party

7. Imelda R. Marcos                  -- Kilusan Bagong Lipunan

8. Manuel L. Morato                  -- Partido Bansang Marangal

9. Emilio R. Osmeña                  -- Progressive Movement for

                                         Devolution of Initiative Political

                                         Party of Central Visayas

10. Raul S> Roco                               -- Aksyon Demokratiko

11. Miriam Defensor Santiago      -- People's Reform Party"21

[22]
22"1. Edgardo J. Angara                    -- LDP/LAMMP Coalition

2. Gloria Macapagal-Arroyo        -- LAKAS-NUCD UMDP

3. Oscar M. Orbos                   -- PDR-LM

4. Sergio Osmeña III                 -- Liberal Party

5. Reynaldo R. Pacheco            -- KPP

6. Camilo L. Sabio                    -- Partido Bansang

                                         Marangal

7. Irene M. Santiago                 -- Aksyon Demokratiko

8. Ismael D. Sueño                   -- PROMDI

9. Francisco S. Tatad               -- People's Reform Party

[23]
"1. Lisandro C. Abadia            -- LAKAS-NUCD UMDP

2. Rolando R. Andaya               -- LAKAS-NUCD UMDP

3. Teresa Aquino-Oreta             -- LDP/LAMMP Coalition

4. Luduvico D. Badoy               -- KPP

5. Ramon S. Bagatsing, Jr.                    -- LDP/LAMMP Coalotion

6. Robert Z. Barbers                 -- LAKAS-NUCD UMDP

7. Rodolfo G. Biazon                -- LDP/LAMMP Coalition

8. Eduardo D. Bondoc               -- KPP

9. David M. Castro                   -- KPP

10. Renato L. Cayetano             -- LAKAS-NUCD UMDP

11. Raul A. Daza                               -- LIBERAL PARTY

12. Roberto F. De Ocampo                    -- LAKAS-NUCD UMDP

13. Renato B. Garcia                -- KPP

14. Adolfo R. Geronimo             -- PDR-LM Coalition

15. Ricardo T. Gloria                 -- LAKAS-NUCD UMDP

16. Teofisto T. Guingona            -- LAKAS-NUCD UMDP

17. Abraham S. Inbani               -- PDR/LM Coalition

18. Robert S. Jaworski              -- LAMMP

19. Fidel C. Lagman                  -- LAMMP

20. Reynante M. Langit              -- PDR/LM Coalition

21. Loren B. Legarda-Leviste      -- LKAS-NUCD UMDP

22. Oliver O. Lozano                -- INDEPENDENT

23. Fred Henry V. Marallag                   -- KPP

24. Blas F. Ople                      -- PMP-LAMMP Coalition

25. John Reinner Osmeña                    -- NPC/LAMMP

26. Roberto M. Pagdanganan      -- LAKAS-NUCD UMDP

27. Charito B. PLaza                 -- LIBERAL PARTY

28. Hernando B. Perez              -- LAKAS-NUCD UMDP

29. Aquilino Q. Pimentel             -- LAMMP(PDP/LABAN)

30. Santanina C.T. Rasul            -- LAKAS-NUCD UMDP

31. Ramon B. Revilla                 -- LAKAS-NUCD UMDP

32. Miguel Luis R.Romero           -- LAMMP

33. Roberto S. Sebastian           -- PDR-LM Coalition

34. Roy B. Señeres                  -- PDR-LM Coalition

35. Vicente C. Sotto III               -- LDP/LAMMP Coalition

36. Hadja Putri Zorayda             -- PDR-LM Coalition

A. Tamano

37. Ruben T. Torres                 -- LAMMP

38. Jose M. Villegas, Jr.             -- LM (Workers Party) /

                                         PDR

39. Freddie N. Webb                 -- LDP/LAMMP

40. Haydee B. Yorac                -- Independent"

[24]
. 1 each for president, vice president, congressman, governor, vice governor, mayor
and vice mayor, 12 for senator, at least 5 for Sangguniang Panlalawigan members; also
at least 5 for Sangguniang Bayan/Panlungsod members; and 1 for party list
representatives.
[25]
 Compliance dated March 13, 1998, p. 4
[26]
 The Comelec has not even paid the per diem and allowances of the public school
teachers who served during the last barangay elections. How can it expect to pay for the
Comelec TV and radio time? (Memorandum of Petitioners-in-Intervention, p. 33.)
[27]
 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 people peaceably to assemble and petition the government for redness of
grievances"
[28]
 Article III of the Constitution also provides:

"Sec 7 The right of the people to information on matters of oublic 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."
[29]
 The time-honored doctrine against prior restraint is stated in New York
Times v. United States, 403 US 713 (1971), which has been invariably applied in our
jurisdiction, in this wise: "Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity." The Government
`thus carries a heavy burden of showing justification for the enforcement of such a
restraint."' (Bernas, The Commission of the Republic of the Philippines, 1987 ed., Vol. I.,
p. 142.)
[30]
 With apologies to Lew Brown and Buddy (George Gard) De Sylvia, "the Best Things in
Life Are Free," Good News, 1927, as quoted by John Bartlett in Bartlett's Familiar
Quotations, 1980 ed., p. 825.
[31]
 For instance, Elmulong vs. Division Superitendent of Schools of Cebu, 219 SCRA 256,
March 1, 1993, reversed the Court's 34-year-old doctrine laid down in
Gerona vs. Secretary of Education, 106 Phil 2, August 12, 1959, and upheld the right to
Jehovah's Witnesses "to refuse to salute the Philippine flag on account of their religious
beliefs." Similarly, Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987,
abandoned the 12- year-old ruling in Aquino Jr. vs. Military Commission, 63 SCRA 546,
May 9, 1975, which recognized the jurisdiction if military tribunals to try civilians for
offenses allegedly committed during martial law. The Court likewise reversed itself in
EPZA vs. Dulay, 149 SCRA 305, April 29, 1987, when it vacated its earlier ruling in
National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the validity of
certain presidential decrees regarding the determination of just compensation. In the
much earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30, December 8, 1933, the
Court revoked its holding in Involutionary Insolvency of Mariano Velasco & Co., 55 Phil
353, November 29, 1930, regarding the relation of the insolvency law with the then
COde of Civil procedure and with the Civil Code. Just recently, the Court, in
Kilosbayan vs. morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant of
standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110, May 5,
1994.

SEPARATE CONCURRING OPINION

PUNO, J.:

In G.R. No. 132231, petitioners assail the constitutionality of Sec. 11(b) of R.A. No.
6646 and Resolution No. 2974 of the COMELEC implementing said law. They contend:
“I
THE POLITICAL AD BAN IS MOVED BY AN INVALID LEGISLATIVE INTENT, ULTRA VIRES ON
THE PART OF CONGRESS, AND VIOLATIVE OF THE VERY CONSTITUTIONAL PROVISION
UPON WHICH IT IS SOUGHT TO BE GROUNDED.

II
CONTRARY OT THE HOLDING IN NATIONAL PRESS CLUB, THE POLITICAL AD BAN IS NOT
LIMITED IN TIME AND SCOPE OF APPLICATION.

A.          THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT IS

ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND UNLIMITED.
B.          THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF
APPLICABILITY. INSOFAR AS THE CANDIDATE’S FREEDOM TO EXPRESS
THROUGH THE MASS MEDIA, IT IS ABSOLUTE, ALL-ENCOMPASSING,
COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646 CONSTITUTES PRIOR
RESTRAINT, AND CARRIES A HEAVY PRESUMPTION AGAINST VALIDITY.

IV
THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY MEANS TO ACHIEVE THE
DESIRED END.
 A.          INSTEAD OF ‘LEVELING THE PLAYING FIELD,’ INSOFAR AS THE
USE OF MASS MEDIA FOR POLITICAL PURPOSES IS CONCERNED, THE
POLITICAL AD BAN HAS ABOLISHED THE PLAYING FIELD.
B.          THERE IS NO REASONABLE NECESSITY FOR THE AD BAN,
BECAUSE IT DOES NOT PREVENT THE RICH CANDIDATE FROM USING
HIS SUPERIOR RESOURCES TO THE UNDUE DISADVANTAGE OF THE
POOR CANDIDATE.
C.          THERE IS NO REASONABLE NECESSITY FOR THE POLITICAL AD
BAN BECAUSE ADEQUATE SAFEGUARDS ARE LEGALLY IN PLACE IN
ORDER TO PREVENT THE RICH CANDIDATE FROM TAKING UNDUE
ADVANTAGE OF HIS SUPERIOR RESOURCES.
V
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE PEOPLE TO BE INFORMED ON
MATTERS OF PUBLIC CONCERN.

VI
THERE IS NO NEED FOR ‘EMPIRICAL DATA’ TO DETERMINE WHETHER THE POLITICAL AD
BAN OFFENDS THE CONSTITUTION OR NOT.”

The Solicitor General and the petitioners-in-intervention likewise contend that

section 11(b) of R.A. No. 6646 is unconstitutional principally because it impairs freedom
of speech and of the press.
A quick glance at petitioners’ arguments against section 11 (b) of R.A. No. 6646 will
show that they are mere rehash of arguments in the NPC case. The lack of new
arguments is a tribute to the brilliant majority decision and equally enlightening
dissenting opinions in said case which petitioners now seek to reexamine. A repetition
of the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero which cites
Buckley v. Valeo,[1] a 1976 case where a divided US Supreme Court ruled that limits on
campaign expenditures violate the guarantee of freedom of speech of some elements of
society in order to enhance the relative voice of others is wholly foreign to the First
Amendment …”.[2]
A reading of American legal literature, however, will reveal that Buckley has been
widely criticized by libertarians because its pro-business thrust has pernicious effects on
efforts to achieve much needed electoral reforms.[3] Typical of the criticisms is the
observation of Wright that the Buckley Court “… has given protection to the polluting
effect of money in election campaigns. As a result, our political system may not use
some of its most powerful defenses against electoral inequalities.”[4] The barrage of
criticisms caused the US Supreme Court to modify its absolute support for free speech in
Buckley. In the 1990 case of Austin v. Michigan State Chamber of Commerce,[5] it upheld
the constitutionality of a Michigan law that prohibited corporations from using
corporate treasury funds to support or oppose any candidate for office. Retreating from
Buckley, the Austin Count recognized the state’s compelling interest in regulating
campaign expenditure. Writing for the majority, Mr. Justice Thurgood Marshall, an icon
of libertarians declared: “Michigan identified as a serious danger the significant
possibility that corporate political expenditures will undermine the integrity of the
political process, and it has implemented a narrowly tailored solution to that problem.”
In his concurring opinion, the last of the libertarians in the US High Court, Mr. Justice
Brennan, held: “In MCFL, we held that a provision of the Federal Election Campaign Act
of 1971 (FECA), x x x similar to the Michigan law at issue here, could not be applied
constitutionally to a small, anti-abortion advocacy group. In evaluating the First
Amendment challenge, however, we acknowledge the legitimacy of Congress’ concern
that organizations that amass great wealth in the economic marketplace should not gain
unfair advantage in the political marketplace.”
There is less reason to apply the discredited Buckley decision in our setting. Section
11 (b) of R.A. No. 6646 is based on provisions of our Constitution which have no
counterparts in the US Constitution. These provisions are:
“Art. II, section 26.  The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law.

Art. XIII, section 1.  The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

Art. IX (c) (4).         The Commission may, may during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits from the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates
therefor for public information campaigns and forms among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections.”

A member of the Constitutional Commission, now our distinguished colleague, Mr.

Justice Hilario Davide, Jr., well explained these new wrinkles in our Constitution, viz.:
xxx
“Aware of the lamentable fact in the Philippines, no gap between these two
unavoidable extremes of society is more pronounced than that in the field of politics,
and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours has
been a politics of the elite, the rich, the powerful and the pedigreed. The victory of a
poor candidate in an election is almost always an exception. Arrayed against the vast
resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting chance. Of course, there have been isolated
instances – but yet so few and far between – when poor candidates made it.”[6]

He stressed that this thrust for political equality is an improvement of our past
Constitutions which merely sought to establish equality in the economic and social
fields.[7]
 It is difficult to think why such an egalitarian law like Section 11(b) of R. A. No. 6646
should be condemned when it equalizes the political opportunities of our people. The
gap between the perfumed few and the perspiring many in our country is galloping at a
frightening pace. As the cost of election spirals at an immoral speed, the levers of
political power are wielded more and more by the wealthty alone. The subject law
attempts to break this control by reducing the purchasing power of the peso of the rich
in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of freedom of speech
should not be used to frustrate legislative attempts to level the playing field in politics.
R.A. No. 6646 does not curtail speech as it no more than prevents the abusive use of
wealth by the rich to frustrate the poor candidate’s access to media. It seems to me self-
evident that if Congress can regulate the abuse of money in the economic market so can
it regulate its misuse in the political freemarket. Money talks in politics but it is not the
specie of speech sanctified in our Consititution. If we allow money to monopolize the
media, the political freemarket will cease to be a market of ideas but a market for
influence by the rich. I do not read freedom of speech as meaning more speech for the
rich for freedom of speech is not guaranteed only to those who can afford its exercise.
There ought to be no quarrel with the proposition that freedom of speech will be a
chimera if Congress does not open the opportunities for its exercise. When the
opportunities for exercise. When the opportunities for its exercise are obstructed by the
money of the rich, it is the duty of Congress to regulate the misuse of money --- for in
the political marketplace of ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped countries where
sharp disparities in wealth exist, the threat to freedom of speech comes not only from
the government but from vested interests that own and control the media. Today,
freedom of speech can be restrained not only by the exercise of public power but also
by private power. Thus, we should be equally vigilant in protecting freedom of speech
from public and private restraints. The observation of a legal scholar is worth
meditating, vis.: “With the development of private restraints on free expression, the
idea of a free marketplace where ideas can compete on their merits has become just as
unrealistic in the twentieth century as the economic theory of perfect competition. The
world in which an essentially rationalist philosophy of the first amendment was born has
vanished and what was rationalism is now romance.”[8]
I vote to dismiss petition.

[1]
 424 US 1 (1976); see also First National Bank of Boston v. Belloti, 435 US 765 (1978).
[2]
 Id.  At pp. 48-49.
[3]
 Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to
Political Equality, 82 Col. L. Rev. No. 4 (May 1982); Abrogast, Political Campaign
Advertising and the First Amendment: A Structural-Functional Analysis of Proposed
Reform, 23 Akron L. Rev. 2091 (1989); Blum, the Divisible First Amendment: A Critical
Functionalist Approach to Freedom of Speech and Electoral Campaign Spending, 58,
N.Y.U.L. Rev. 1273 (1983).
[4]
 Wright, op cit, p. 609.
[5]
 494 US 652 (1990).
[6]
 Concurring Opinion in NPC v. COMELEC, 207 SCRA 19 (1992).
[7]
 Id., at p. 18.
[8]
 Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641
(1967).

DISSENTING OPINION

ROMERO, J.:

“A foolish consistency is the hobgoblin of little minds….”[1]

Not wishing to be held hostage by Emerson's “hobgoblin,” I dare to break away

from a past position and encapsulize my ruminations in a dissenting opinion.

When, If At All, May The Court Reverse Itself?

The majority, reiterating the 1992 decision NPC v. COMELEC, holds that Section
11(b) of R.A.6646 is a reasonable restriction on the freedom of expression guaranteed
by the Constitution.[2] Our six-year experience with the ban on political advertisements,
however, constrains me to dissent. While it is desirable, even imperative, that this
Court, in accordance with the principle of stare decisis, afford stability to the law by
hewing to doctrines previously established, said principle was never meant as an
obstacle to the abandonment of established rulings where abandonment is demanded
by public interest and by circumstances.[3] Reverence for precedently simply as
precedent cannot prevail when constitutionalism and public interes demand otherwise.
Thus, a doctrine which should be abandoned or modified should be abandoned or
modified accordingly. More pregnant than anything else is that the court should be
right.[4]
I submit that our country’s past experience in the 1992 and 1995 elections, as well
as contemporary events, has established that Section 11(b) of R.A. 6646 falls short of
rigorous and exacting standard for permissible limitation on free speech and free press.
 In 1992, this Court, in NPC v. COMELEC, gave constitutional imprimatur to Section
11(b), pronouncing the same to be authorized by Article IX(C), Section 4 of the
Constitution which reads:
“Section 4 The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchise or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
priveleges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time
and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the object of
holding fee, orderly, honest, peaceful and credible elections.”

Prefatorily, it must be borne in mind that Article IX(C), Section 4 of the Constitution,
is essentially an express manifestation of the comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public necessity and
upon the right of the state and the public to self-protection. For this reason, its scope
expands and contracts with changing needs.[5] In the words of Mr. Justice Isagani A.
Cruz:
“Police power is dynamic, not static, and must move with the moving soceity it is
supposed to regulate. Conditions change, circumstances vary; and to every such
alteration the police power must conform. What may be sustained as a valid exercise of
the power now may become constitutional heresy in the future under a different factual
setting. Old notions may become outmoded even as new ideas are born, expanding or
constricting the limits of the police power. For example, police measures validly enacted
fifty years ago against the wearing of less than sedate swimsuits in public beaches would
be laughed out of court in thses days of permissiveness…(T)he police power continues
to change even as constraints on liberty diminish and private property becomes more
and more affected with public interest and therefore subject to regulation” (Italics ours).
[6]

Thus, when the temper and circumstances of the times necessitate a review, this
Court should not hesitate to reverse itself, even on constitutional issues; for the legal
problems with which society is beset continually cannot be merely considered in the
abstract, but must be viewed in light of the infinite motley facets of human experience.
As aptly stated by Mr. Justice Holmes, “The life of the law has not been logic: it has been
experience.”
By way of illustration, we first held, in the celebrated Flag Salute Case,[7] that:
“the flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which it
and the Constitution guarantee and protect. Under a system of complete separation of
church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag salute is
no more a religious ceremony than the taking of an oath of office by a public official or
by a public candidate for admission to the bar”

xxx  xxx                              xxx
The children of Jehovah’s Witnesses cannot be exempted from participation in the flag
ceremony. They have no valid right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize the rest of the school
population which by far constitute the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory laws,
rules and regulations promulgated by competent authority.”

The Court further predicted that exempting Jehovah’s Witnesses from participating
in the flag ceremony would ultimately lead to a situation wherein:
“[T]he flag ceremony will become a thing of the past or perhaps conducted with very
few participants, and the time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was
granted an exemption.”

Thirty-two years later, events caught up with the changing political climate, such
that an undivided Court pronounced, in Ebralinag v. The Division Superintendent of
School of Cebu[8]  that:
“the idea that one may be compelled to salute the flag, sing the national anthem, and
recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one’s
job or of being expelled from school, is alien to the conscience of the present generation
of Filipino who their teeth on the Bill of Rights which guarantees their right to free
speech and the free exercise of religious profession and worship

xxx  xxx                              xxx
The sole justification for a prior restraint or immitation on the exercise of religious
freedom is the existence of a grave and present 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, that the State has a right (and duty) to prevent Absent such a
threat to public safety, the expulsion of petitioners from the schools is not justified.”

The Court held that its earlier prediction of dire consequences had not come to
pass. It concluded that exempting Jehovah’s Witnesses from attending flag ceremonies
would not produce a nation “untaught and uninculcated in and not imbued with
reverence for the flag and love of country, admiration for national heroes and
patriotism.”
In much the same manner, in the early case of People v. Pomar,[9] the Court struck
down as a violative of the freedom of contract, a statute prescribing a thirty-day
vacation with pay both before and after confinement arising from pregnancy. The Court
said:
“The rule in this jurisdiction is, that the contracting parties may establish any
agreements, terms, and conditions they may deem advisable, provided they are not
contrary to law, morals or public policy.”

Citing American cases that espoused the prevailing laissez faire doctrine, the Court ruled
that the right to contract about one’s affairs is a part of the liberty of the individual
guaranteed by the due process clause. The Court also cited the “equality of right”
principle, holding that “(I)n all such particulars the employer and the employee have
equality of right, and any legislation that disturbs that equality is an arbitrary
interference with the liberty of contract, which no government can legally justify in a
free land…Police power, the Court conceded, is an expanding power; but it cannot grow
faster than the fundamental law of the state… If the people desire to have the police
power extended and applied to conditions and things prohibited by the organic law,
they must first amend that law.[10]
Sixteen years later, the validity of the above pronouncement was rejected by the
Court in Antamok Goldfields Mining Co. v. CIR.[11] which rationalized its volte-face stance,
thus: (I)n the midst of changes that have taken place, it may likewise be doubted if the
pronouncement made by this court in the case of People v. Pomar…still retains its
virtuality as a living principle. The policy of laissez faire has to some extent given way to
the assumption by the government of the right of intervention even in contractual
relations affected with public interest.”
Similarly, events subsequent to the Court’s ruling in Avelino v. Cuenco[12]  impelled
the Court to reverse its original position. In this case, the Court initially refused to take
cognizance of the raging controversy to determine who was the rightful president of the
Philippine Senate, ruling that in view of the separation of powers, the question was a
political one not within its jurisdiction. Despite such a ruling, almost one-half of the
members of the Senate refused to acknowledge Mariano Cuenco as the acting
President, as a result of which legislative work came to a standstill. In other words of
Justice Perfecto, “the situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court ….
The judiciary ought to ripen into maturity if it has to be true to its role as spokesman of
the collective conscience, of the conscience of humanity.” The Court, thus, assumed
jurisdiction over the case, rationalizing that supervising events justified its intervention.
From the foregoing, it can be seen that the inexorable march of events, and the
liberalizing winds of change may very well signal a needed shift in our conception of the
permissible limits of regulation in the name of police power. Verily, while the validity
of NPC v. COMELEC may have been etched on granite at the time of its promulgation,
events subsequent thereto now call into question the very underpinnings of
said ponencia. To my mind, the hoary maxim that “time upsets many fightings faiths”
still holds true, and the Court must be ever resilient and adaptable in order to meet the
protean complexities of the present and future generation.
In NPC v. COMELEC, the court held that:
“(N)o presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may result
in some limitation of the right of free speech and free press. For supervision or
regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time-honored one –
that a statute is presumed to be constitutional and that he party asserting its
unconstitutionality must discharge the burden of clearly and convincingly proving that
assertion.”

This upends the familiar holding that “any system of prior restraint of expression
comes to this Court bearing a heavy presumption against its constitutional validity, with
the Government carrying a heavy burden of showing justification for the enforcement of
such a restraint.”[13] This presumption was even reiterated in the recent case of Iglesia ni
Cristo v. CA,[14] wherein we ruled that “deeply ensconced in our fundamental law is its
hostility against all prior restraints on speech…Hence, any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows. It
is the burden of the respondent… to overthrow this presumption. If it fails to discharge
this burden, its act of censorship will be struck down.” NPC v. COMELEC, insofar as it
bestows a presumption of validity upon a statute authorizing COMELEC to infringe upon
the right of free speech and free press, constitutes a departure from this Court’s
previous rulings as to mandate its re-examination.
In this connection, it bears emphasis that NPC v. COMELEC was the product of a
divided court, marked as it was by the strong dissents of Mr. Justices Cruz, Gutierrez,
and Paras. This fact gains significance when viewed in light of the changes in the
composition of the court. While a change in court composition, per se, does not
authorize abandonment of decisional precedents, it is apropos to keep in mind the
pronouncement by the Court in Philippine Trust Co. and Smith, Bell and Co. v. Mitchell,
[15]
 which reads as follows:
“Is the court with new membership compelled to follow blindly the doctrine of the
Velasco case? The rule of stare decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the
court should be right.” (Italics ours)

Are the Restrictions Imposed by Sec. 11(b) of R.A.

6646 on Freedom of Expression Valid?

Preliminaries having been disposed of, we proceed to the crux of the matter.
Freedom of speech has been defined as the liberty to know, to utter and to argue freely
according to conscience, above all liberties. It thus includes, not only the right to express
one’s views, but also other cognate rights relevant to the free communication ideas, not
excluding the right to be informed on matters of public concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by Section 11(b) on
the freedom of expression, to be valid. First, the prohibition is limited in the duration of
its applicability and enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period when the electorate
clamores for more and accurate information as their basis for intelligent voting. To
restrict the same only defeats the purpose of holding electoral campaigns – to inform
the qualified voter of the qualifications of candidates for public office, as well as the
ideology and programs of government and public service they advocate, to the end that
when election time comes, the right of suffrage may be intelligent and knowingly, of not
always wisely, exercised. Opening all avenues of information to the estimated 36.4
million voters is crucial for the intelligent exercise of the right of suffrage in the May 11
polls, considering that they will be voting for an average of thirty elective position.[16]
Second the prohibition is of limited application, as the same is applied only to the
purchase and sale of print space and air time for campaign or other political purposes.
“Section 11(b) does not purport in any way to restrict the reporting by newspapers or
radio or television stations of news or newsworthy events relating to candidates, their
qualifications, political parties and programs of government.” It does not reach
commentaries and expressions of belief or opinion by reporters or broadcasters or
editors or commentators or columnists in respect of candidates, their qualifications, and
programs and so forth. To be sure, newspaper, radio and television stations may not be
restricted from reporting on candidates, their qualifications, and programs of
government, yet, admittedly, the freedom of expression of the candidates themselves in
the manner they choose to, is restricted. Candidates are thereby foreclosed from
availing of the facilities of mass media, except through the filtering prism of the
COMELEC.
Not to be overlooked is the stark truth that the media itself is partisan. In a
study[17] commissioned by the COMELEC itself to determine whether certain newspaper
adhered to the principles of fairness and impartiality in their reportage of the
presidential candidates in the 1992 elections, the results disclosed that newspapers
showed biases for or against certain candidates. Hence, the contention that “Section11
(b) does not cut off the flow of media reporting, opinion or commentary about
candidates, their qualifications and platforms and promises” simply is illusory. Editorial
policy will always ensure that favored ones will get minimal exposure, if at all. This
underscores the need to give candidates the freedom to advertise, if only to counteract
negative reporting with paid advertisements, which they cannot have recourse to with
the present prohibition. Worse, the ban even encourages corruption of the mass media
by candidates who procure paid hacks, masquerading as legitimate journalist, to sing
them paeans to the high heavens. Wittingly or unwittingly, the mass media, to the
detriment of poor candidates, occassionally lend themselves to the manipulative
devices of the rich and influential candidates.
Finally, it is alleged that while Section 1(b) prohibited the sale or donation by mass
media of print space or air time for campaign or other political purposes, COMELEC, by
way of exception, was mandated to purchase print space or air time, which space and
time it was required to allocate, equally and impartially, among the candidates for
public office. Hence, whatever limitation was imposed by Section 11 (b) upon the right
to free speech of the candidates was found not to be unduly repressive or unreasonable
inasmuch as they could still realize their objective as long as it was coursed through
COMELEC. COMELEC it was that shall decide what, who, which media to employ and the
time allocation for the candidates who signify their desire to avail of the agency’s
airtime and print space. Why accord to COMELEC such powers in the name of
supervision and regulation at the expense of the constitutionality hallowed freedom of
expression?
 Given the conditions then prevailing, the Court’s ruling in NPC v. COMELEC may
have been valid and reasonable; yet today, with the benefit of hindsight, it is clear that
the prohibition has become a woeful hindrance to the exercise by the candidates of
their cherished right to free expression and concomitantly, a violation of the people’s
right to information on matters of public concern. As applied, it has given an undue
advantage to well-known popular candidates for office.
In the hierarchy of fundamental civil liberties, the right of free expression occupies a
preferred position,[18] the sovereign people recognizing that it is indispensable in a free
society such as ours. Verily, one of the touchstones of democracy is the priciple
that free political discussion is necessary if government is to remain responsive to the
will of the people. It is a guarantee that the people will be kept informed at all times
sufficiently to discharge the awesome responsibilities of sovereignty.
Yet, it is also to be conceded that freedom of expression is not an absolute right.
The right of privelege of free speech and publication has its limitations, the right not
being absolute at all times and under all circumstances. For freedom of speech does not
comprehend the right to speak whenever, however, and wherever one pleases, and the
manner, and place, or time of public discussion can be constitutionally controlled.[19]
Still, while freedom of expression may not be immune from regulation, it does not
follow that all regulation is valid. Regulation must be reasonable as not to constitute a
repression of the freedom of expression. First, it must be shown that the interest of the
public generally, as distinguished from that of a particular class requires such regulation.
Second, it must appear that the means used are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals.
As to the first, NPC v. COMELEC, this Court declared that the ban on political
advertising aims to assure equality of opportunity to proffer oneself for public service by
equalizing, as far as practicable, the situations of rich and poor candidates by preventing
the former from enjoying the undue advantage offered by huge campaign “war chests.”
While there can be no gainsaying the laudable intent behind such an objective, the
State being mandated to guarantee equal access to opportunities for public service, the
prohibition has had the opposite effect. Instead of “equalizing” the position of
candidates who offer themselves for public office, the prohibition actually gives an
unfair advantage to those who have wide media exposure prior to the campaign period.
Instead of promoting the interest of the public in general, the ban promotes the interest
of a particular class of candidates, the prominent and popular candidates for public
office. What is in store for the relatively obscure candidate who wants to pursue his
candidacy? Eager to trumpet his credentials and program of government, he finds
himself barred from using the facilities of mass media on his own. While incumbent
government officials, show business personalities, athletes and prominent media men
enjoy the advantage of name recall due to past public exposure, the unknown political
neophyte has to content himself with other for a, which given the limited campaign
period, cannot reach the electorate as effectively as it would through the mass media.
To be sure, the candidate may avail himself of “COMELEC Space” and “COMELEC Time,”
but the sheer number of candidates does not make the same an effective vehicle of
communication. Not surprisingly, COMELEC Chairman Pardo, at the Oral Argument held
by the Court en banc, admitted that no candidate has as yet applied for COMELEC air
time and space.
 More telling, the celebrities are lavished with broader coverage from newspaper,
radio and television stations, as well as via the commentaries and expressions of belief
or opinion by reporters, broadcasters, editors, commentators or columnists, as they are
deemed more newsworthy by media, thus generating a self-perpetuating cycle wherein
political unknowns, who may be more deserving of public office, campaign in relative
obscurity compared to their more popular rivals. Instead of equalizing opportunities for
public service, the prohibitioin not only perpetuates political inequality, but also
invisiously discriminates against lesser-known candidates.
While Article IX(C), Section 10 of the Constitution provides that “(b)ona fide
candidates for any public office shall be free from any form of harassment and
discrimination,” Article IX (C), Section 4 is nothing if antithetical to the former provision
as, in its application, it is productive of a situation wherein political neophytes are
blatantly discriminated against. Much as we recognize the basic canon in Constitutional
construction that the Constitution must be interpreted in such a way as to harmonize all
its provision if the Charter is to be construed as a single, comprehensive document and
not as a series of disjointed articles or provisions, the predictable effect is for one
provision to negate the other.
As to the second requisite, experience shows that the ban on political
advertisements has not been reasonably necessary to accomplish its desired end. First,
there are more than 70 provinces, more than 60 cities and more than a thousand
municipalities spread all over the archipelago. Previous elections have shown that the
ban on political advertising forces a candidate to conduct a nationwide whistle-stop
campaign to attain maximum exposure of his credentials and his program of
government. Obviously, this necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of 90 days. Given the
enormous logistics needed for such a massive effort, what are the chances for an
impecunious candidate who sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority of the
populace more than other instruments of information and dissemination, being the
most pervasive, effective and inexpensive. A 30-second television advertisement,
consting around P35,000.00 at present rates, would, in an instant, reach millions of
viwers around the country in the comfort of their homes. Indeed, the use of modern
mass media gives the poor candidate the opportunity to make himself known to the
electorate at an affordable cost. Yet, these means of communication are denied such
candidates due to the imagined apprehension that more affluent candidates may
monopolize the airwaves. This fear, however, need not materialize as the COMELEC is
precisely empowered to regulate mass media to prevent such a monopoly. Likewise, the
ceiling on election spending imposed by law upon all candidates, regardless, will also
serve as a deterrent.
Second, the means employed is less than effective, for with or without the ban,
moneyed candidates, although similarly barred from buying mass media coverage, are
in a position to lavish their funds on the propaganda activities which their lesser-
endowed rivals can ill-afford. Furthermore, we take judicial notice of the inability of
COMELEC to enforce laws limiting political advertising to “common poster areas.” Many
places in cities have been ungainly plastered with campaign materials of the better off
candidates. What use is there in banning political advertisements to equalize the
situation between rich and poor candidate, when the COMELEC itself, by its failure to
curb the political excesses of candidates, effectively encourages the prevailing
disparities? Why then single out political advertising? What is the reasonable necessity
of doing so?
To be realistic, judicial notice must be taken on the fact that COMELEC, in narrowing
down its list of “serious” candidates, considers in effect a candidate’s capability to wage
an effective nationwide campaign – which necessarily entails possession and/or
availability of substantial financial resources. Given this requirement, the objective of
equalizing rich and poor candidates may no longer find relevance, the candidtes
ultimately allowed to run being relatively equal, as far as resources are concerned.
Additionally, the disqualification of nuisance candidates allegedly due to their inability
to launch serious campaigns, itself casts doubt on the validity of the prohibition as a
means to achieve the state policy of equalizing access to opportunities for public
service. If poor and unknown candidates are declared unfit to run for office due to their
lack of logistics, the political ad ban fails to serve its purpose, as the persons for whom it
has been primarily imposed have been shunted aside and thus, are unable to enjoy its
benefits.
It must be kept in mind that the holding of periodic elections constitute the very
essence of a republican form of government, these being the most direct act and
participation of a citizen in the conduct of government. In this process, political power is
entrusted by him, in concert with the entire body of the electorate, to the leaders who
are to govern the nation for a specified period. To make this exercise meaningful, it is
the duty of government to see to it that elections are free and honest and that the voter
is unhampered by overt and covert inroads of fraud, force and corruption so that the
choice of the people may be untrammelled and the ballot box an accurate repository of
public opinion. And since so many imponderables may affect the outcome of elections --
qualifications of voters and candidates, education, means of transportation, health,
public discussion, private animosities, the weather, the threshold of a voter’s resistance
to pressure – the utmost ventilation of opinion of men and issues, through assembly,
association and organizations, both by the candidate and voter, becomes a sine qua
non for elections to truly reflect the will of the electorate.
With the prohibition on political advertisements except through the Comelec space
and time, how can a full discussion of men, issues, ideologies and programs be realized?
Article III, Section 4 of the Constitution provides that “(n)o law shall be passed abridging
the freedom of speech, of expression, of the press, or the right of the people peaceably
to assemble and petition the government of redress of grievaces.” Implicit in this
guarantee is the right of the people to speak and publish their views and opinions on
political and other issues, without prior restraint and/or fear of subsequent
punishment. Yet Section 11(b), by authorizing political advertisements only via the
COMELEC effectively prevents the candidates from freely using the facilities of print and
electronic mass media to reach the electorate. A more blantant form of prior restraint
on the free flow of information and ideas can hardly be imagined. To be sure, it does not
constitute an absolute restriction, but it is restriction nonetheless, as odious and
insidious as any that may be conceived by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political advertisements
on radio and television would not endanger any substantial public interest. Indeed,
allowing advertisements would actually promote public interest by furthering public
awareness of election issues. The objective, equalizing opportunities for public service,
while of some immediacy during election times, does not justify curtailing the citizen’s
right of free speech and expression.
“Not only must the danger be patently clear and pressingly present but the evil sought
to be avoided must be so substantive as to justify a clamp over one’s mouth or a writing
instrument to be stilled. For these reasons, any attempt to restrict these liberties must
be justified by clear public interest, threatened not doubtfully or remotely but by clear
and present danger. The rational connection between the remedy provided and the evil
to be curbed, which in other context might support legislation against attack on due
process grounds, will not suffice. These right rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate
time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible
limitation.”[20]

No such clear and present danger exist here as to justify banning political
advertisements from radio and television stations.
Past experience shows that the COMELEC has been hard put effectively informing
the voting populace of the credentials, accomplishments, and platforms of government
of the candidates. There are 17,396 national and local elective public positions[21] which
will be constested by an estimated 100,000 candidates[22] on May 11, 1998. For national
positions, the list has been trimmed down to 11 candidates for president, 9 candidates
for vice-president, and 40 candidates for senator. It is difficult to see how the number of
candidates can be adequately accomodated by “COMELEC Space” and “COMELEC time”
Resolution No. 2983 of the COMELEC, issued in compliance with Section 92 of B.P. 881,
mandates that at least thirty minutes of prime time be granted to the Commission, free
of charge, from February 10, 1998 until May 9, 1998.[23] Thirty minutes of prime-time for
eighty-nine days (89) is scarcely enough time to introduce candidates to the voters,
much less to properly inform the electorate of the credentials and platforms of all
candidates running for national office. Let us be reminded that those running for local
elective positions will also need to use the same space and time from March 27 to May
9, 1998, and that the COMELEC itself is authorized to use the space and time to
disseminated vital election information.[24] Clearly “COMELEC Space” and “COMELEC
Time” sacrifices the right of the citizenry to be sufficiently informed regarding the
qualifications and programs of the candidates. The net effect of Section 11(b) is, thus, a
violation of the people’s right to be informed on matters of public concern and makes it
a palpably unreasonable restriction on the people’s right to freedom of expression. Not
only this, the failure to “Comelec Space” and “Comelec Time” to adequately inform the
electorate, only highlights the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich and poor
candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political advertisement are
allowed in for a other than modern mass media, thus: “aside from Section 11(b) of RA
6646 providing for ‘COMELEC Space’ and ‘COMELEC Time,’ Sections 9 and 10 of the
same law afford a candidate several venues by which he can fully exercise his freedom
of expression, including freedom of assembly.” A concurring opinion points to the
mandate of COMELEC to encourage non-political, non-partisan private or civic
organization to initiate and hold in every city and municipality, public fora at which all
registered candidates for the same office may participate in, the designation of common
poster areas, the right to hold political caucuses, conferences, meetings, rallies, parades,
and other assemblies, as well as the publication and distribution of campaign literature.
All these devices conveniently gloss over the fact that for the electorate, as shown in
surveys by the Ateneo de Manila University’s Center for Social Policy and Public Affairs,
mass media remains to be the most important and accessible source of information
about candidates for public office.
It must be borne in mind that the novel party-list system will be implemented in the
impending elections. The party-list system, an innovation introduced by the 1987
Constitution in order to encourage the growth of multi-party system is designed to give
a chance to marginalized sectors of society to elect their representative to the Congress.
A scheme aimed at giving meaningful representation to the interest of sectors which are
not adequately attended to in normal legislative deliberations, it is envisioned that
system will encourage interest in political affairs on the part of a large number of
citizens who feel that they are deprived of the opportunity to elect spokesmen of their
own choosing under the present system. It is expected to forestall resort to extra-
parliamentary means by minority groups which would wish to express their interest and
influence governmental policies, since every citizen is given a substantial representation.
[25]

Under R.A. 7941, known as the Party-List System Act, the labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas worker and professional sectors[26] will have the opportunity to elect
representatives to Congress. With the prohibition on political advertisements, however,
those parties who wish to have their candidates elected as sectoral representatives, are
prevented from directly disseminating their platforms of government through the mass
media. The ban on political advertisements thus serves as a deterrent to the
development of self-reliance, self-development, logistical and organizational capability
on the part of sectoral parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the chance of
consolidating a mass base sorely needed for a fair chance of success in a highly
competitive political exercise. Likewise, with the inability of the candidates to reach the
sectors as they seek to represent, the right of the people belonging to these sectors to
be informed on matters of concern to them is likewise violated.[27]
Finally, NPC v. COMELEC invokes the specter of the “captive audience” to justify its
stand against political advertisements. Describing political advertisements as “appealing
to the non-intellective faculties of the captive and passive audience,” it says that
anyhow, the only limitation imposed by Section 11(b) upon the free speech of
candidates is on their right to bombard the helpless electorate with paid advertisements
commonly repeated in the mass media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious speech, libel, and the
like, it is not for this Court to determine what the people may or may not watch or read.
Even “mind-numbing” political advertisements are subject to the constitutional
safeguard of due process.

Freedom of Speech Expression Remains A Fresh

And Vital Verity

 The guarantee of the freedom of speech which has been defined by Wendell Philips
as “the instrument and guarantee and the bright and consummate flower of all liberty,”
has always been granted a predominant status in the hierarchy of individual rights.[28] It
is founded on the belief that the final end of the state was to make men free to develop
their faculties and that freedom to think as you will and to speak as you think are means
indespensable to the discovery and spread of political truth.[29] Its purpose is to preserve
an uninhibited marketplace of ideas where truth will ultimately prevail.[30] “An individual
who seeks knowledge and truth must hear all sides of the question, consider all
alternatives, test his judgement by exposing it to opposition and make full use of
different minds. Discussion must be kept open no matter how certainly true an accepted
opinion may be; many of the most widely accepted opinions have turned out to be
erroneous. Conversely, the same principles apply no matter how false or pernicious the
new opinion may be; for the unaccepted opinion may be true and partially true; and
even if false, its presentation and open discussion compel a rethinking and retesting of
the accepted opinion.[31] As applied to instant case, this court cannot dictate what the
citizens may watch on the ground that the same appeals only to his non-intellective
faculties or is mind-deadening and repetitive. A veritable “Big Brother” looking over the
shoulder of the people declaring: “We know better what is good for you,” is passe’
As to the puerile allegation that the same constitutes invasion of privacy, making
the Filipino audience a “captive audience,” the explosive growth of cable television an
AM/FM radio will belie this assertion. Today, the viewing population has access to 12
local TV channels,[32] as well as cable television offering up to 50 additional channels. To
maintain that political advertisements constitute invasion of privacy overlooks the fact
that viewers, with the surfeit of channels, can easily skip to other TV channels during
commercial breaks - a fact which, coupled with the now ubiquitous remote control
device, has become the bane of advertisers everywhere.
The line between gaining access to an audience and enforcing the audience to hear
is sometimes difficult to draw, leaving the courts with no clearcut doctrine on issues
arising from this kind of intrusion. This is specially true in cases involving broadcast and
electronic media. The US cases cited as authorities on the captive audience
phenomenon, which, incidentally, did not involve the issue of election campaigns,
[33]
 provide little guidance as to whether freedom of speech may be infringed during the
campaign period for national elections on account of the individual’s right to privacy.
[34]
 Prudence would dictate against an infringement of the freedom of speech if we are
to take into consideration that an election campaign is as much a means of
disseminating ideas as attaining political office[35] and freedom of speech has its fullest
and most urgent application to speech uttered during election campaigns. [36] In Buckley
v. Valeo, a case involving the constitutionality of certain provisions of the Federal
Election Campaign Act, the United States Supreme Court per curiam held that:
“the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to “secure the widest possible dissemination of
information from diverse and antagonistic sources” and “to assure unfettered
interchange of ideas for the bringing about of political and social chages desired by the
people.” (italics supplied)[37]

The fear that the candidates will bombard the helpless electorate with paid
advertisements, while not entirely unfounded, is only to be expected considering the
nature of political campaigns. The supposition however that “the political
advertisements which will be “introjected into the electronic media and repeated with
mind deadening frequency” are commonly crafted not so much to inform and educate
as to condition and manipulate, not so much to provoke rational and objective
apparaisal of candidates’ qualifications or programs as to appeal to the intellective
faculties of the captive and passive audience” is not a valid justification for the
infringement of so paramount a right granted by the Constitution inasmuch as it is the
privilege of the electorate in a democratic society to make up their own minds as to the
merit of the advertisements presented. The government derives its power from the
people as the sovereign and it may not impose its standards of what is true and what is
false, what is informative and what is not for the individual who, as a “particle” of the
sovereignty is the only one entitled to exercise this privilege.
Government may regulate constitutionality protected speech in order to promote a
compelling interest if it chooses the least restrictive means to further the said interest
without unnecessarily interfering with the guarantee of freedom of expression. Mere
legislative preference for one rather than another means for combating substantive
evils may well be an inadequate foundation on which to rest regulations which are
aimed at or in their operation diminish the effective exercise of rights to necessary to
maintenance of democratic institutions.[38]
It should be noted that legislature has already seen fit to impose a ceiling on the
candidates’ total campaign expenditures[39] and has limited the political campaign period
to 90 days for candidates running for national office and 60 days for congressmen and
other local officials. With these restrictions, it cannot be gainsaid that the constitutional
provision on social justice has been sufficiently complied with. We see no reason why
another restriction, must be imposed which only burdens the candidates and voters
alike. To make matters worse, we are not even certain as to the efficacy of the “adban”
in curtailing the feared consequences of the object of restriction. Of course, this is not to
say that the law is being struck down as unconstitutional mainly because it is efficacious
or ineeficacious. If this is the only issue which confronts us, there would have been no
need to give due course to the petition inasmuch as we would be inquiring as to the
wisdom of the law and treading into an area which rightfully belongs to the legislature.
Verily, courts cannot run a race of opinions upon points of right, reason and expediency
with the law-making power.[40]

Freedom of Expression Incompatible With Social Justice?

The Costitutional question at hand is not just a simple matter of deciding whether
the “adban” is effective or ineffective in abridging the financial disparity betweem the
rich and poor candidates. Sec. 11(b) of RA No. 6646 strikes at the very core of freedom
of expression. It is unconstitutional not because we are uncertain as to whether it
actually levels the playing field for the candidates but because the means used to
regulate freedom of expression is on all points constitutionally impermissible. It tells the
candidates when, where and how to disseminate their ideas under pain of punishment
should they refuse to comply. The implications of the ban are indeed more complex and
far reaching than approximating equality among the rich and the poor candidates.
The primacy accorded the freedom of expression is a fundamental postulate of our
constitutional system. The trend as reflected in Philippine and American decisions is to
recognize the broadset scope and assure the widest latitude to this guaranty. It
represents a profound commitment to the principle that debate of public issue should
be uninhibited, robust and wide open and may best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are or even
stirs people to anger.[41]
The repression of expression in an attempt to level the playing field between the
rich and the poor candidates is not only unrealistic but goes beyond the permissible
limits of freedom of expression as enshrined in the constitution. Social justice is a
laudable objective but it should not be used as a means to justify infringement of the
freedom of expression if it can be achieved by means that do not necessarily trench on
the individual’s fundamental right. The case of Guido v. Rural Progress Administration,
[42]
 is particularly enlightening. In said case, we had occassion to state that:
“Hand in hand with the announced principle, herein invoked, that “the promotion of
social justice to insure the well being and economic security of all people should be the
concern of the state’, is a declaration with which the former should be reconciled, that
'the Philippines is a Republican state' created to secure to the Filipino people 'the
blessings in independence under a regime of justice, liberty and democracy.' Democracy
as a way of life enshrined in the Constitution, embraces as its necessary components
freedom of conscience, freedom of expression, and freedom in pursuit of happiness. x x
x Social justice does not champion division of property or equality of economic status;
what it and the Constitution do guarantee are equality of economic opportunity,
equality of political rights, equality before the law, equality between values given and
received x x x."

While we concede the possibility that the rich candidates may dominate the
airwaves to the detriment of the poor candidates, the latter should not be prevented
from replying. While they may be restricted on account of their financial resources, they
are not denied access to the media altogether. This is what is meant by the phrase
"equal time, space, equal opportunity and the right of reply" under Article IX (C)(4) of
the 1987 Constitution which was inserted by the framers of the Constitution as a
reaction to a 1981 ruling of the Supreme Court that when the president speaks over
radio or television, he speaks not as a representative of his party but of the people and
therefore opposition parties have no right to demand equal time[43]
It is ironic that the guarantee of freedom of expression should be pitted against the
consitutional provision on social justice because the freedom of speech is the most
potent instrument of public opinion, not to speak of its being the most effective weapon
for effecting political and social reforms. Certainly, an infringement of the freedom of
speech in a less than heroic attempt at attaining social justice cannot be countenanced,
for in the ultimate analysis social justice cannot flourish if the people's right to speak, to
hear, to know and ask for redress of grievances is watered down.
A word in the intervenors' argument that Resolution No. 2983, Section 2, insofar as
it directs every radio broadcasting and television to provide COMELEC with airtime free
of charge constitutes taking of private property for public use without just
compensation. The COMELEC, anticipating its vulnerability to said challenge passed
Resolution 2983-A on MArch 3, 1998 requiring that it pay just compensation for its
COMELEC time.
Buckley vs. Valeo and Existing US Jurisprudence

The novelist George Orwell once said, "In a society in which there is no law, and in
theory no compulsion, the only arbiter of behavior is public opinion. But public opinion,
because of the tremendous urge to conformity in gregarious animals, is less tolerant
than any other system of law." For want of legislature to equalize the playing field
between the rich and the poor candidates, it has by imposing a complete prohibition on
paid political advertisements, burned down a house to roast a pig. For fear of
accusations that it might be treading into an area which rightfully belongs to the
legislature, the Court today, by sanctioning an unnecessary infringement on the
freedom of speech, has unwittingly allowed the camel's nose into the tent.
My colleague, Justice Reynato Puno, in his separate opinion, apparently overlooked
the thrust of our dissenting opinion when we qouted the case Buckley v. Valeo.[44] Lest
we be misunderstood, we have in no way relied on the Buckley v. Valeo case for the
grant of instant petition inasmuch as it has never escaped our notice that legislature has
already seen fit to impose a ceiling on the candidates' total campaign
expenditures[45] Precisely, we have repeatedly emphasized in the dissenting opinion that
we see no reason why another restriction must be imposed on the constitutional
guarantee of freedom of speech which only burdens the candidates and electorates
alike when legislature has already taken steps to comply with the constitutional
provision on social justice by imposing a ceiling on the candidates' total campaign
expenditures and limiting the campaign period to 90 days for candidates running for
national office and 60 days for congressmen and other local officials. We have
mentioned Buckley if only to underscore the fact the due to the primacy accorded to
freedom of speech, court, as a rule are wary to impose greater restrictions as to any
attempt to curtail speeches with political content. To preserve the sanctity of the status
accorded to the said freedom, the US Supreme Court has, in fact, gone as far as
invalidating a federal law limiting individual expenditures of candidates running for
political office.
In any case, to address some misconceptions about existing jurisprudence on the
matter, we now present a brief discussion on Buckley and the preceding US cases. In the
case of Buckley v. Valeo, a divided US Supreme Court, per curiam held that a federal law
limiting individual contributions to candidates for office served the state's compelling
interest in limiting the actuality and appearance of corruption. However a law
limiting expenditures by candidates, individuals and groups was held unconstitutional.
The rationale for the dichotomy between campaign expenditures and contributions has
been explained in this wise - campaign contributions are marginal because they convey
only an undifferentiated expression of support rather than the specific values which
motivate the support. Expenditures, on the other hand, as directly related to the
expression of political views, are on a higher plane of constitutional values. The Court, in
noting that a more stringent justification is necessary for legislative intrusion into
protected speech said, "A restriction on the amount of money a person or a group can
spend on political communication necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size of
the audience reached. This is because virtually every means of communicating in today's
mass requires the expenditure of money."[46]
A more discerning scrutiny of the US cases following Buckley, would show that
while Buckley has been widely criticized, it has, to date, never been modified, much less
discredited. In California Medical Association vs. FEC,[47] a law limiting the amount an
incorporated association can contribute to a multi-candidate political committee was
upheld. The spending was viewed not as independent political speech but rather as
"speech by proxy," hence, the spending was deemed analogous to group contributions
which can be regulated.
In FEC vs. National Conservative Political Action Comm,[48] the US Supreme Court
invalidated a section of the Presidential Election Campaign Fund Act which makes it a
criminal offense for an independent political committee to spend more than $1,000 to
further the election of a presidential candidate who elects public funding. National
Conservative Political Action Committee (NCPAC) and the Fund for a Conservative
Majority (FCM), two political action committees or PAC's, solicited funds in support of
President Reagan's 1980 presidential campaign. The PAC's spent these funds on radio
and television advertising in support of Reagan. The Court, relying
on Buckley v. Valeo and and the distinction it drew between expenditures and
contributions, held that the independent expenditures of the political committees were
constitutionally protected for they "produce speech at the core of the First
Amendment" necessitating a "rigorous standard of review." Justice Rehnquist, for the
court, likened the restriction to allowing a speaker in a public hall to express his views
while denying him use of the amplifier. As in Buckley, independent expenditures, not
coordinated with candidates' political campaign, were seen as presenting a lesser
danger of political quid pro quos. The Court then proceeded to reject efforts to support
the statutory limitation on expenditures on the basis of special treatment historically
accorded to corporations inasmuch as the terms of the Campaign Fund Act "apply
equally to an informal neighborhood group that solicits contributions and spends money
on a presidential election campaign as to the wealthy and professionally managed
PAC's."
In the case of FEC v. Massachussets Citizens for life (MCFL),[49] a provision of the
Federal Election Campaign Act prohibiting direct expenditure of corporate funds to a
non-profit, voluntary political association concerned with elections to public office was
struck down as unconstitutional. No compelling government interest was found to
justify infringement of protected political speech in this case where a small voluntary
political association, which had no shareholders and was not engaged in business,
refused to accept contributions from either business corporations or labor unions.
In Austin v. Michigan Chamber of Commerce,[50] the case cited by Justice Puno, a
Michigan statute prohibiting corporations from making campaign contributions from
their general treasury funds to political candidates was held not to violate the first
amendment even though the statute burdened expressive activity mainly because the
statute was sufficiently narrowed to support its goal in preventing political corruption or
the appearance of undue influence - it did not prohibit all corporate spending and
corporations were permitted to make independent expenditures of political purposes
from segregated funds but not from their treasuries. Notably, the non profit corporation
involved in this case, the Michigan Chamber of Commerce (hereinafter referred to as
the Chamber of Commerce), lacked three of the distinctive features of MCFL, the
organization involved in the FEC vs. National Conservative Political Action Comm[51] case,
namely: (1) The Chamber of Commerce, unlike MCFL, was not formed just for the
purpose of political expression (2) The members of the Chamber of commerce had an
economic reason for remaining with it even though they might disagree with its politics
and (3) The Chamber of Commerce, unlike MCFL, was subject to influence from business
corporations which might use it as a conduit for direct spending which would pose a
threat to the political marketplace.
From the foregoing, it should be obvious that Austin in fact supports the holding
in Buckley v. Valeo and "refines" it insofar as as it allows the regulation of corporate
spending in the political process if the regulation is drawn with sufficient specificity to
serve the compelling state interest in reducing the threat that "huge corporate
treasuries" will distort the political process and influence unfairly the outcome of
elections.
The adban, undoubtedly, could hardly be considered as a regulation drawn with
sufficient specificity to serve compelling government interest inasmuch as it imposes a
complete prohibition on the use of paid political advertisements except through
Comelec time and space despite the fact that Congress has already seen fit to impose a
ceiling on the candidates' total campaign expenditures. While it seems a rather fair
proprosition that Congress may regulate the misuse of money by limiting the candidates
how, when, and where to use their financial resources of political campaigns. Obviously,
it is one thing to limit the total campaign expenditures of the candidates and another to
dictate to them as to how they should spend it.
Freedom of expression occupies a preferred position in the hierarchy of human
values. The priority gives the liberty a sancity and a sanction not permitting dubious
intrusions and it is the character of the right, not the limitation which determines what
standard governs the choice.[52] Consequently, when the government defends a
regulation on speech as a means to redress past harm or prevent anticipated harm, it
must do more than simply "posit the existence of the disease sought to be cured. [53] It
must demonstrate that the recited harms are real, not merely conjectural and that the
regulation will alleviate these harms in a material way.[54]
As earlier pointed out, legislature has already seen fit to impose a ceiling on the
total campaign expenditures of the candidates and has limited the campaign period for
90/60 days. We see no reason why another restriction must be imposed which only
burdens the candidates and the voters alike. The fact alone that so much time has been
devoted to the discussion as to whether the adban does in fact level the playing field
among the rich and poor candidates should be a strong indication in itself that it is a
dubious intrusion on the freedom of expression which should not be countenanced.
Illegitimate and unconstitutional practices make their initial foothold by furtive
approaches and minimal deviations from legal modes of procedure. Hence, courts must
be extremely vigilant in safeguarding the fundamental rights granted by the Constitution
to the individual. Since freedom of expression occupies a dominant position in the
hierarchy of rights under the Constitution to the individual. Since freedom of expression
occupies a dominant position in the hierarchy of rights under the Constitution, it
deserves no less than an exacting standard of limitation. Limitations on the guarantee
must be clearcut, precise and, if needed readily controllable, otherwise the forces that
press towards curtailment will eventually break through the crevices and freedom of
expression will become the exception and suppression the rule.[55] Sadly, the much
vaunted adban failed to live up to such standard and roseate expectations.

Freedom of Expression in Historical Context

 At this juncture, as we celebrate the Centennial of our Philippine Independence, it is
timely to call to mind that wars and revolutions have been fought, not only in our shores
and in our time, but in centuries past, halfway around the globe to keep these subject
rights inviolate. To stretch our memories, Spain's adamant denial of basic freedoms to
our hapless forefathers, among others, sparked the Philippine revolution. Jose Rizal,
in "Filipinas Despues de Cien Años"[56]  described the reform a sine quibus non, saying, in
"The minister,... who wants his reforms to be reforms, must begin by declaring the press
in the Philippines free." The Filipino propagandist who sought refuge in the freer
intellectual climate of Spain invariably demanded "liberty of the press, of cults, and of
associations[57] through the columns of "La Solidaridad."
One of the more lofty minds unleashed his fierce nationalistic aspirations though
the novels Noli Me Tangere and El Filibusterismo, necessarily banned from the author's
native land. Eventually, the seeds of these monumental works ignited the flame of
revolution, devouring in the process its foremost exponent, albeit producing a national
hero, Jose Rizal. The mighty pen emerged victorious over the colonizers' sword.
The Malolos Constitution, approved before the turn of century on January 20, 1899,
enshrined freedom of expression in Article 20 of its Bill of Rights, thus:
"Article 20 Neither shall any Filipino be deprived:

1. Of the right to freely express his ideas or opinions, orally or in writing,

through the use of the press or other similar means."[58]
This right, held sacrosanct by the Filipino people and won at the cost of their lives found
its way ultimately in the Constitutions of a later day, reenforced as they were, by the
profound thoughts transplanted on fertile soil by libertarian ideologies. Why emasculate
the freedom of expression now to accord a governmental agency a power exercisable
for a limited period of time for the dubious purpose of "equalizing" the chances of
wealthy and less affluent candidates?
In summary, I hold that Section 11(b) of RA 6646, in the six years that have elapsed
since it was upheld as being in consonance with the fundamental law, has now become
out of sync with the times and, therefore, unreasonable and arbitrary, as it not unduly
restrains the freedom of expression of candidates but corollarily denies the electorate
its fullest right to freedom of information at a time when it should flourish most.
For the reasons stated above, I VOTE to declare Section 11(b) of RA 6646
UNCONSTITUTIONAL.

[1]
 “Self-Reliance.” Emerson’s Essays, Emerson, Ralph Waldo, Books, Inc., N.Y.
[2]
 Article III, 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."
[3]
 Olaguer  v. Military Commission No. 34, 150 SCRA 144 (1987).
[4]
 Olaguer v. Milirary Commission No. 34, 150 SCRA 145 citing Phil. Trust Co. and Smith
Bell and Co. v. Mitchell, 50 Phil. 30 (19330 cited with approval in Koppel (Phils.),
Inc. v. Yatco, 77 Phil. 496 (1946). See also Tan Chong v. Secretary of Labor, 79 Phil. 249
(1947).
[5]
 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY, Vol. I, 1987 ed., p. 34.
[6]
 CRUZ, CONSTITUTIONAL LAW, 1993 ed., p. 43.
[7]
 Gerona v. Secretary of Education, 106 Phil. 2 (1959).
[8]
 219 SCRA 256 (1993).
[9]
 46 Phil. 440 (1924).
[10]
 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY, Vol. II ed., p.40.
[11]
 70 Phil. 340 (1940).
[12]
 83 Phil. 17 (1949).
[13]
 Bernas, The Constitution of the Republic of the Philippines: A Commentary Vol. I, p.
142, citing New York Times vs. United States (403 U.S. 713).
[14]
 259 SCRA 529 (1996).
[15]
 59 Phil. 30 (1933).
[16]
 One president, one vice-president, twelve senators, one congressman, one party-list
representative, one governor, one vice-governor, an estimated five Sangguniang
panlalawigan members, one mayor, one vice-mayor, and an estimated five Sangguniang
Bayan/Panglungsod members.
[17]
 The study was conducted by six senior students of th UP College of Mass
Communications, covering Manila Bulletin, Philippine Daily Inquirer, Philippine Times
Journal, People’s Journal and Tempo – Report of the COMELEC to the President and
Congress of the Republic of the Philippines on the Conduct of the Synchronized National
and Local Elections of May 11, 1992, Vol. I, p. 56.
[18]
 Philippine Blooming Mills Employees Organization vs.  Philippine Blooming Mills, Inc.,
50 SCRA 189 (1973).
[19]
 16A Am Jur 2d, p. 341.
[20]
 Blo Umpar Adiong vs. Comelec, 207 SCRA 712 (1992).
[21]
 Education and Information Department, COMELEC.
[22]
 In 1992, there were 17,282 contested positions, while the total number of candidates
reached 87,770 – Report of the COMELEC to the President and Congress of the Republic
of the Philippines on the Conduct of the Synchronized National and Local Elections of
May 11, 1992, Vol. I, p. 2.
[23]
 Sec. 2 Every radio broadcasting and television station operating under franchise shall
grant the Commission, free of charge, at least thirty (30) minutes of prime time daily, to
be known as “COMELEC Time,” effective February 10, 1998 for candidates for President,
Vice-President and Senators, and March 27 for candidates for local elective offices, until
May 9, 1998.
[24]
 Sec. 3. Uses of “COMELEC Time” – x x x “COMELEC Time” shall also be used by the
Commission in disseminating vital election information.
[25]
 BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 ed., p. 344.
[26]
 Section 3, R.A. 7941.
[27]
 As of February 9, 1998, 93 parties/organizations have filed certificates of candidacy
under the party-list system – Law Division, COMELEC.
[28]
 Mutuc v. Comelec, 36 SCRA 228 (1970); Victoriano v. Elizalde Rope Workers Union,
59 SCRA 54 (1974); Gonzales v. Comelec, 27 SCRA 835 (1969).
[29]
 See concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274 US 357
(1926).
[30]
 Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969).
[31]
 Emerson, Thomas. The System of Freedom of Expression, p. 7 (1969).
[32]
 Channels 2, 4, 5, 7, 11, 13, 23, 27, 29, 31, 39.
[33]
 In Columbia Broadcasting v. Democratic National Committee (412 US 94) the court
held that broadcasters may validly refuse to accept paid editorial advertisements from
“responsible entities” wishing to present their views on public issues like, in this
instance, the Business Executives’ Move for Vietnam Peace, expressing their views on
theVietnam conflict. See however CBS v. Fox (453 US 367 [1981]) where the US Supreme
Court held that the Communications Act of 1934 grants an affirmative, enforceable and
limited right of reasonable access to broadcasting media for legally qualified individual
candidates seeking federal elective office. The Court quoted the observation of the
Federal Communications Commission that “An arbitrary blanket ban on the use of the
candidate of a particular class or length of time in a particular period cannot be
considered reasonable. A Federal candidate’s decision as to the best method of
pursuing his or her media campaign should be honored as much as possible under the
“reasonable limits” imposed by the licensee.”
In Public Utilities v. Pollak (343 US 451 [1952]) which was cited in Columbia, the US
Supreme Court rejected the claim that the broadcasting of special programs – in this
case 90% music, 5% news and 5% commercial advertising – in public transit cars violated
the right of the passengers who did not wish to listen to the programs.
In Kovacs v. Cooper (336 US 77 [1949]) the Court upheld an ordinance forbidding the
use on public streets of sound trucks which emit “loud and raucous” noises. Justice
Black in his dissent however cited the case of Saia v. New York (334 US 558 [1948])
where an ordinance banning the use of sound amplification devices except for
dissemination of news items and matters of public concern – provided the police chief’s
permission was obtained, was struck down as unconstitutional. The court in the Saia
case held that, “Loudspeakers are today indespensable instruments of effective public
speech. The sound truck has become an accepted method of campaign.” Adhering to his
dissent in Saia, Justice Frankfurter concurred in Kovacs saying, “So long as the legislature
does not prescribe what may be noisily expressed and what may not be, it is not for us
to supervise the limits the legislature may impose in safeguarding the steadily narrowing
opportunities for serenity and reflection.”
[34]
 The case of Lehman v. Shaker Height (418 US [1974]) is not particularly in point in the
case at bar where a complete prohibition is imposed on the use of newspapers, radio or
television, other mass media, or any person making use of the mass media to sell or give
free of charge print space or airtime for campaign and political purposes except to the
Commission. In the case at Lehman, a city operating a public transit system sold
commercial and public service advertising space for cards on its vehicles, but permitted
no “political” or “public issue” advertising. When petitioner, a candidate for the Office of
State Representative to the Ohio General Assembly failed in his effort to have
advertising promote his candidacy accepted, he sought declaratory relief in the State
courts. The US Supreme Court held that the city consciously has limited access to its
transit system to minimize the chances of abuse, the appearance of favoritism and the
risk of imposing upon a captive audience.
[35]
 Illinois Board of Directors v.  Socialist Workers, 440 US 173 (1979).
[36]
 Eu v. San Francisco Democratic Comm., 489 US 214 (1989).
[37]
 Buckley v. Valeo, 424 US 1 (1976) citing New York Times v.  Sullivan, 84 S Ct. 710,
quoting Associated Press v. United States, 326 US 1 (1945) and Roth vs. United States at
484.
[38]
 Thorhill v. State of Alabama, 310 US 88 (1940).
[39]
 Section 100 of BP 881, otherwise known as the Omnibus Election Code, states: “No
candidate shall spend for his election campaign an aggregate amount exceeding one
peso and fifty centavos for every voter currently registered in the constituency where he
filed his candidacy. Provided that the expenses herein referred to shall include those
incurred or caused to be incurred by the candidate, whether in cash or in kind, including
the use, rental or hire of land, water or aircraft, equipment facilities, apparatus and
paraphernalia used in the campaign; Provided, further that where the land, water or
aircraft, equipment, facilities, apparatus and paraphernalia is owned by the candidate,
his contributor or his supporter, the Commission is hereby empowered to assess the
amount commensurate with the expenses for the use thereof based on the prevailing
rates in the locality and shall be included in the total expense incurred by the
candidate.”
See also related Sections 94-112.
[40]
 Cooley, Thomas, I Constitutional Limitations. 8th Ed. (1927, p. 346.
[41]
 Gonzales v. Comelec, supra.
[42]
 84 Phil. 847 (1949).
[43] 
1 Record 632, 662-66.
[44]
 424 US 1 [1976].
[45] 
See footnote 39.
[46]
 Supra at 19.
[47]
 453 US 182 [1981].
[48]
 470 US 480 [1985].
[49]
 475 US 1063 [1986].
[50]
 494 US 652 [1990].
[51]
 Supra.
[52]
 Thomas v. Collins, 323 U.S. 516 (1945), as cited in the dissenting opinion of Justice
Fernando in Gonzales v. Comelec at p. 885 and in the case of Blo Umpar
Adiong v. Comelec, 207 SCRA 712 [1992].
[53]
 Quincy Cable TV Inc. v. FCC, 786 F2d 1434 [1985].
[54]
 Edenfield v. Fane, 507 US [1993].
[55]
 Emerson, Thomas. The System of Freedom of Expression, [1967] pp. 10-11.
[56]
 The Philippines a Century Hence, p. 62 et seq.
[57]
 United States vs. Bustos, 37 Phil. 731 (1918). See Mabini, La Revolucion Filipina
[58]
 GUEVARA, THE LAWS OF THE FIRST PHILIPPINE REPUBLIC (THE LAWS OF MALOLOS)
1898-1899, 1972, p. 107.

SEPARATE OPINION
VITUG, J.:

I share the opinion of those who continue to uphold the decision in the National
Press Club vs. Commission on Elections case that has sustained the validity of Section
11(b) of Republic Act (“R.A.”) No. 6646, otherwise also known as the Electoral Reforms
Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court in the National
Press Club case, no more than invoke anew Section 4, Article III, of the Constitution to
the effect that –
“No law shall be passed abridging the freedom of speech, of expression, or of press, on
the right of the people peaceably to assemble and petition the government for redress
of grievances.”

It is their submission that Section 11(b) of R.A. No. 6646 and Section 18(e) of Comelec
Resolution No. 2974 should be declared unconstitutional. These contested provisions
state:
“Sec. 11. Prohibited forms of election propaganda. – In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful;

“xxx xxx                              xxx
“b) for any newspaper, radio broadcasting or television station, other mass media, or
any person making use of the mass media to sell or give free of charge print space or
airtime for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign period.”

Sec. 18. Prohibited forms of election propaganda. – it is unlawful

“xxx xxx                              xxx
“e. For any radio broadcasting or television or any person making use of broadcast
media to sell or give free of charge, any air time for campaign and other political
purposes, except thru ‘COMELEC time,’ allotted to the Commission pursuant to Section
92 of the Omnibus Election Code.”

I see however, in the above provision a faithful compliance and due observance of
the language, intent and spirit of the Constitution itself, Article IX(C)(4) of which reads:
“Sec. 4. The Commission [on Elections] may, during the election period, supervise or
regulate the enjoyment or utilization of all franchise or permits for the operation
of transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections.”
(Italics supplied)

It might be worth mentioning that Section 26, Article II, of the Constitution also states
that the “State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.” I see neither Article IX (C)(4) nor
Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of
general application, must yield to the specific demands of the Constitution. The freedom
of expression concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like fundamental rights, it is not without
limitations.
The case is not about a fight between the “rich” and the “poor” or between the
“powerful” and the “weak” in our society but it is to me a genuine attempt on the part
of Congress and the Commission on Elections to ensure that all candidates are given an
equal chance to media coverage and thereby be equally perceived as giving real life to
the candidates’ right of free expression rather than being viewed as an undue restriction
of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court to pass
upon.
I vote to dismiss the petition.

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3.      Test of valid government interference

a.      Clear and present danger
a. v.     Social Weather Stations, Inc. v COMELEC, G.R. No. 147571, May 5, 2001

409 Phil. 571

EN BANC

[ G.R. No. 147571, May 05, 2001 ]

SOCIAL WEATHER STATIONS, INCORPORATED AND KAMAHALAN  PUBLISHING

CORPORATION, DOING BUSINESS AS MANILA STANDARD, PETITIONERS, VS.
COMMISSION ON ELECTIONS, RESPONDENT.
 DECISION

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof.  On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of general circulation, which
features newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters' preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as "Survey").

To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of the COMELEC
enjoins ¾

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period
of the elections both at the national and local levels and release to the media the results
of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results
up to the last day of the elections on May 14, 2001.

Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint.  They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without causing confusion
among the voters and that there is neither empirical nor historical evidence to support
the conclusion that there is an immediate and inevitable danger to the voting process
posed by election surveys.  They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied
access to the results of election surveys which are relatively objective.

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from  manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political  advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was
upheld by this Court.  In contrast, according to respondent, it states that the prohibition
in §5.4 of R.A. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press
by prohibiting the publication of election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a national election and
seven (7) days before a local election. Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure  is vitiated by
a weighty presumption of invalidity.[2] Indeed, "any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional
validity. . . . The Government `thus carries a heavy burden of showing justification for
the enforcement of such restraint.'"[3] There is thus a reversal of the normal
presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for
the operation of media of communication, no presumption of invalidity attaches to a
measure like §5.4.  For as we have pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to
ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities for "public information
campaigns and forums among candidates."[4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents.  He rejects as inappropriate the test of clear and
present danger for determining the validity of §5.4. Indeed, as has been pointed out in
Osmeña v. COMELEC,[6] this test was originally formulated for the criminal law and only
later appropriated for free speech cases.  Hence, while it may be useful for determining
the validity of laws dealing with inciting to sedition or incendiary speech, it may not be
adequate for such regulations as the one in question.  For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing free speech,
which is not the case of §5.4 and similar regulations.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing

and balancing the circumstances to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the regulation of the free
enjoyment of the rights" (page 7). After canvassing the reasons for the
prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon
effect to favor candidates, misinformation, the "junking" of weak and "losing"
candidates by their parties, and the form of election cheating called "dagdag-bawas"
and invoking the State's power to supervise media of information during the election
period (pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should
outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C,
§4.  As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time,
and space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates."  Hence the validity of the ban
on media advertising. It is noteworthy that R.A. No. 9006, §14  has lifted the ban and
now allows candidates to advertise their candidacies in print and broadcast media.
Indeed, to sustain the ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the ground that the usual
bombasts and hyperbolic claims made during the campaigns can confuse voters and
thus debase the electoral process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves freedom
of speech, expression, and the press with little protection. For anyone who can bring a
plausible justification forward can easily show a rational connection between the statute
and a legitimate governmental purpose.  In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales  v.  COMELEC,[7] from which the dissent in
this case takes its cue, was a strong one resulting in his conclusion that §50-B of R.A. No.
4880, which limited the period of election campaign and partisan political activity, was
an unconstitutional abridgment of freedom of expression.

Nor can the ban on election surveys be justified on the ground that there are other
countries ¾ 78, according to the Solicitor General, while the dissent cites 28 ¾ which
similarly impose restrictions on the publication of election surveys.  At best this survey is
inconclusive.  It is noteworthy that in the United States no restriction on the publication
of election survey results exists.  It cannot be argued that this is because the United
States is a mature democracy.  Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not restrict
the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4?
The United States Supreme Court, through Chief Justice Warren, held in United States v.
O'Brien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional

power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the furtherance of that
interest.[8]

This is so far the most influential test for distinguishing content-based from content-
neutral regulations and is said to have "become canonical in the review of such
laws."[9] It is noteworthy that the O'Brien test has been applied by this Court in at least
two cases.[10]
Under this test, even if a law furthers an important or substantial governmental interest,
it should be invalidated if such governmental interest is "not unrelated to the
suppression of free expression." Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless be invalidated if the restriction
on freedom of expression is greater than is necessary to achieve the governmental
purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

First.  Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the causal connection
of expression to the asserted governmental interest makes such interest "not unrelated
to the suppression of free expression." By prohibiting the publication of election survey
results because of the possibility that such publication might undermine the integrity of
the election, §5.4 actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists,
radio and TV commentators, armchair theorists, and other opinion makers.  In effect,
§5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal
opinion to statistical results. The constitutional guarantee of freedom of expression
means that "the government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content."[11] The inhibition of speech should
be upheld only if the expression falls within one of the few unprotected categories dealt
with in Chaplinsky  v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem. 
These include the lewd and obscene, the profane, the libelous, and the insulting or
`fighting' words ¾ those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and
morality.

Nor is there justification for the prior restraint which §5.4 lays on protected speech. 
In Near  v. Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question but
that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.  On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements
to acts of violence and the overthrow by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4
cannot be justified on the ground that it is only for a limited period and is only
incidental. The prohibition may be for a limited time, but the curtailment of the right of
expression is direct, absolute, and substantial.  It constitutes a total suppression of a
category of speech and is not made less so because it is only for a period of fifteen (15)
days immediately before a national election and seven (7) days  immediately before a
local election.

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to
be valid in National Press Club v. COMELEC[14] and Osmeña v.  COMELEC.[15] For the ban
imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional
provision,[16] but it also provided an alternative so that, as this Court pointed out
in Osmeña, there was actually no ban but only a substitution of media advertisements
by the COMELEC space and COMELEC hour.

Second.  Even if the governmental interest sought to be promoted is unrelated to the

suppression of speech and the resulting restriction of free expression is only incidental,
§5.4 nonetheless fails to meet criterion [4] of the O'Brien  test, namely, that the
restriction be not greater than is necessary to further the governmental interest.  As
already stated, §5.4 aims at the prevention of last-minute pressure on voters, the
creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to
the form of election cheating called "dagdag-bawas."  Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by punishing unlawful acts,
rather than speech because of apprehension that such speech creates the danger of
such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is given the
power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to
this power of the COMELEC, it can confiscate bogus survey results calculated to mislead
voters. Candidates can have their own surveys conducted. No right of reply can be
invoked by others.  No principle of equality is involved. It is a free market to which each
candidate brings his ideas.  As for the purpose of the law to prevent bandwagon effects,
it is doubtful whether the Government can deal with this natural-enough tendency of
some voters. Some voters want to be identified with the "winners." Some are
susceptible to the herd mentality. Can these be legitimately prohibited by suppressing
the publication of survey results which are a form of expression?  It has been held that
"[mere] legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions."[18]

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint
on the freedom of expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than the
suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution,
its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. 
The flaws in this argument is that it assumes that its Resolution 3636, dated March 1,
2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, §7.  Indeed,
counsel for COMELEC maintains that Resolution 3636 was "rendered" by the
Commission.  However, the Resolution does not purport to adjudicate the right of any
party.  It is not an exercise by the COMELEC of its adjudicatory power to settle the claims
of parties.  To the contrary, Resolution 3636 clearly states that it is promulgated to
implement the provisions of R.A. No. 9006.  Hence, there is no basis for the COMELEC's
claim that this petition for prohibition is inappropriate.  Prohibition has been found
appropriate for testing the constitutionality of various election laws, rules, and
regulations.[19]

WHEREFORE, the petition for prohibition is GRANTED and §5.4 of R.A. No. 9006 and
§24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared
unconstitutional.

SO ORDERED.

Davide, Jr., C.J., Vitug, and Gonzaga-Reyes, JJ., concur.

Bellosillo, Pardo,Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissent of J.
Kapunan.
Melo, Puno, and Panganiban, JJ., see concurring opinion.
Kapunan, J., see dissenting opinion.
Quisumbing, Buena, and De Leon, Jr., JJ., on leave.

[1]
 207 SCRA 1 (1992).

[2]
 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).

[3]
 New York Times v. United States, 403 U.S. 713,  714, 29 L.Ed. 2d 822, 824 (1971).

[4]
 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmeña v. COMELEC, 288 SCRA
447 (1998).

[5]
 National Press Club v. COMELEC, supra at 9.

[6]
 288 SCRA 447 (1998).

[7]
 27 SCRA 835, 888 (1969)  (Castro, J., concurring and dissenting).

[8]
 391 U.S. 367, 377,  20 L.Ed.2d 672, 680 (1968) (bracketed numbers added).

[9]
 G. Gunther & K. Sullivan, Constitutional Law 1217 (13th ed. 1997).

[10]
 Adiong v. COMELEC, 207 SCRA 712 (1992); Osmeña v. COMELEC, supra.

[11]
 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L.Ed.2d 212, 216 (1972).

[12]
 315 U.S. 568, 571-572, 86 L.Ed. 1031, 1035 (1942). See  John Hart Ely, Flag
Desecration: A Case Study in the Roles of Categorization and Balancing in First
Amendment Analysis,  88 Harv. L. Rev. 1482, 1497 (1975).

[13]
 283 U.S. 697, 715-16, 75 L.Ed. 1357, 1367  (1931); See also  New York Times v. United
States, 403 U.S. 7-13, 29 L.Ed.2d 822 (1971).

[14]
 Supra.

[15]
 Supra.

[16]
 Art. IX-C, §4.

[17]
 Bk. V, Tit. I, Subtit. C, Ch. 1, §3 (1) (emphasis added).

[18]
 Schneider v. Irvington, 308 U.S. 147, 161, 84 L.Ed. 155 (1939).

[19]
 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzales v. COMELEC, 27 SCRA
835 (1969).

CONCURRING OPINION

MELO, J.:
Petitioners Social Weather stations, Inc. and Kamahalan Publishing Corporation,
publisher of Manila Standard, have brought this action to declare as unconstitutional
Section 5.4 of Republic Act No. 9006. Petitioners claim that said provision, which
prohibits the publication of surveys affecting national candidates fifteen days before an
election, and surveys affecting local candidates seven days before an election,
constitutes prior restraint on the exercise of the freedom of speech without any clear
and present danger to justify such restraint.

Respondent Commission on Elections, on the other hand, justifies the restrictions on the
ground that the same is necessary to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys, it being claimed that the
indiscriminate publication of surveys up to election day led to misinformation, junking of
weak and losing candidates by parties, and the creation of a bandwagon effect in favor
of certain candidates.

The majority opinion, written by Mr. Justice Mendoza concludes that the disputed
provision constitutes an unconstitutional abridgment of the freedom of speech,
expression and the press.

I have to agree.

Freedom of speech has been defined as the liberty to know, to utter, and to argue freely
according to conscience, above all liberties.  It includes not only the right to express
one's views, but also other cognate rights relevant to the free communication of ideas,
including the right to be informed on matters of public concern. Indeed, the principle of
free political discussion is one of the touchstones of democracy, it being a guarantee
that the people will be kept informed at all times, thereby ensuring their intelligent
discharge of the responsibilities of sovereignty.

However, despite the primacy of free expression in the hierarchy of fundamental civil
liberties, the same is not absolute.  It can be validly regulated.  Regulation must,
however, be reasonable.  It must be shown that the interest of the public, generally, as
distinguished from that of a particular class, requires such regulation. Second, it must
appear that the means used are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.

The provision in dispute plainly constitute prior restraint on the freedom of expression. 
As aptly stated by the noted constitutionalist Fr. Bernas, "any system of prior restraint of
expression comes to this court bearing a heavy presumption against its constitutional
validity, with the Government carrying a heavy burden of showing justification for the
enforcement of such a restraint" (The Constitution of the Republic of the Philippines:  a
Commentary, p. 142).
Any act that restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows.  It is the burden of the respondent... to overthrow this
presumption.  If it fails to discharge this burden, its act of censorship will be struck down
(Iglesia ni Kristo vs. CA, 259 SCRA 529 [1996].

Respondent COMELEC has fallen short of the required effort to overthrow this
presumption, it having failed to show that the means used by Section 5.4 of Republic Act
No. 9006 are reasonably necessary for the accomplishment of the purpose, and that the
same are not unduly oppressive upon individuals.

It bears emphasizing that Section 5.4 limits itself to prohibiting the publication of
surveys affecting national candidates fifteen days before an election, and surveys
affecting local candidates seven days before an election.  It does not restrict reporting
by tri-media of the merits or demerits of national and local candidates and their chances
at the polls.  Neither does it prohibit commentaries by radio broadcasters and TV
anchors, the expression of opinions by columnist and editors of newspapers.  In fact, the
provision in dispute does not prohibit paid hacks from trumpeting the qualifications of
their candidates.  In fine, while survey organizations who employ scientific methods and
engage personnel trained in the statistical sciences to determine socio-political trends,
are barred from publishing their results within the specified periods, any two-bit
scribbler masquerading as a legitimate journalist can write about the purported strong
showing of his candidate without any prohibition or restriction.  The means used to
regulate free expression is thus, not reasonable necessary for the accomplishment of
the purpose.  Worse, it is unduly oppressive upon survey organizations, which have
been singled out for suppression, on the mere apprehension that their survey results
will lead to misinformation, "junking," or contrived bandwagon effect.

Admittedly, not all organizations which generate surveys are legitimate.  Some publish
surveys which are, at best, disingenuous.  Yet, the possibility of abuse does not
authorize government to restrict the activities of survey organizations at the expense of
the freedom of expression. The very foundation of democracy is, as stated in Abrams vs.
U.S. (250 US 610), grounded on the belief

[T]hat the ultimate good desired is better reached by a free trade in ideas-that the best
test of truth is the power of the thought to get itself accepted in the competition of the
market; and that truth is the only ground upon which their wishes can be safely carried
out.  That, at any rate, is the theory of our Constitution.  It is an experiment, as all life is
an experiment.  Every year, if not every day, we have to wager our salvation upon some
prophecy based upon imperfect knowledge.  While that experiment is part of our
system I think that we should be eternally vigilant against attempts to check the
expression of opinions that we loathe and believe to be fraught with death, unless they
so imminently threaten immediate interference with the lawful and pressing purposes
of the law that an immediate check is required to save the country.
To reiterate, the prohibition against surveys within the specified period is a prior and
unreasonable restraint upon the freedom of expression which is not reasonable
necessary to achieve the purpose of clean, honest, orderly and peaceful elections.

For the foregoing reasons, I vote to grant the petition for prohibition and to declare
Section 5.4 of R.A. No. 9006 unconstitutional.

CONCURRING OPINION

PUNO, J.:

Petitioners seek to declare as unconstitutional Section 5.4 of R.A. No. 9006, otherwise
known as the "Fair Election Act," which states:

Sec. 5.4. Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published seven
(7) days before an election."[1]

"Surveys" refer to the "measurement of opinions and perceptions of the voters as

regards a candidate's popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters' preference for candidates or
publicly discussed issues during the campaign period xxx."[2] Violation of the prohibition
is punishable as an election offense under section 264 of B.P. 881, otherwise known as
the Omnibus Election Code.[3]

Petitioners assail the law as constitutionally infirmed on the ground that it is an

abridgment of their freedom of speech and of the press.[4] I concur with the majority
opinion penned by Mr. Justice Mendoza which is protective of speech and file this
separate opinion by way of supplement.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights.[5] The rationale is that the
preservation of other rights depend on how well we protect our freedom of speech and
of the press.  In view of the preferred status of freedom of speech and of the press,
several tests have been enunciated to protect it.  We have the dangerous tendency test
which now commands little following.  We have the clear and present danger test, the
most libertarian test, formulated by Justice Holmes in Schenk v. United States,
[6]
  viz: "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 evil that the State has a right to prevent." In Gonzales v.
COMELEC,[7]  Mr. Chief Justice Fernando explained that "the term clear seems to point to
a causal connection with the danger of the substantive evil arising from the utterance
questioned.  Present refers to the time element.  It used to be identified with imminent
and immediate danger.  The danger must not only be probable but very likely
inevitable."  We have the various balancing tests typified by the Obrien test,[8] to wit:

"[A] government regulation is sufficiently justified [1] if it is within the constitutional

power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free
expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the furtherance of that
interest."

All of these tests have their own criticisms but I need not express any preference for any
of these tests to resolve the case at bar, for regardless of the test used, the assailed
provision is void on its face and patently unconstitutional.

The provision in question is unconstitutional because it constitutes a clear prior

restraint on petitioners' freedom of speech and of the press.  I like to stress on the
prohibition against prior restraint for two reasons: (1) a historical study of human rights
will show that it is prior restraint that gave rise to freedom of speech and of the press;
and (2) there is a growing tendency, as noted by legal observers, for governments to
manipulate the free market of ideas in the guise of merely regulating the time, manner
and place of exercising freedom of speech and of the press.  The tendency appears in
various masks.  One of them is thru prior restraint or thru subsequent punishment of
acts regulating the exercise of freedom of speech and of the press.

The invention of printing in the fifteenth century revolutionized the communication of

ideas.  Soon it dawned on the temporal and spiritual authorities that printing should be
controlled and thus prior restraint on freedom of speech and of the press was born.[9] In
1501, Pope Alexander VI issued a Bull banning unlicensed printing.  In England, printing
became a monopoly and was strictly dispensed and controlled by the Crown.  It was
only in 1695 that the House of Commons declined to reenact its licensing statute. [10] In
the 18th century, however, the right of the press against prior licensing gained the
important status of a natural right in England.[11] In 1791, The First Amendment to the
US Constitution, prohibiting the abridgement of freedom of speech and of the press,
was ratified by the States.  Undoubtedly, the First Amendment is a bar against any prior
restraint, especially the classic form of licensing by government authorities.  Thus, in the
United States, the prohibition was elevated to a constitutional principle.  In 1931, in
the leading case of Near v. Minnessota,[12] the US Supreme Court, speaking thru Mr.
Chief Justice Hughes expressly ruled that "xxx liberty of the press, historically considered
and taken up by the Federal Constitution, has meant, principally although not
exclusively, immunity from previous restraints or censorship." Our Constitutions of
1935, 1973, and 1987 guaranteed freedom of speech and of the press and undeniably,
we adopted the US model and its rationale.  I therefore emphasize that prior restraints
on freedom of speech and of the press should be given the strictest of scrutiny in light of
their inherent and invasive impact.

In the case at bar, the law bans publication of surveys affecting national candidates 15
days before an election and surveys affecting local candidates 7 days before an
election.  Violation of the ban carries a criminal sanction.  This is pure and simple prior
restraint on the communication and free flow of ideas which should be made available
to voters before they exercise their right of suffrage, the core of their political
sovereignty.  Prior restraint can be justified only on the narrowest of ground like
national security.  The prior restraint in the case at bar is not based on compelling
reasons in the category of national security and hence is intolerable for government
should not be encouraged to take any step to control the subject matter of
speech, otherwise it will have the dangerous power to manipulate the form and shape
of thoughts that will compete in the market of ideas.  In the free market of ideas,
government is bound to follow the laissez faire policy to the maximum and not the
paternalistic policy of government knows best.

The provision in question is also void for its overbreadth. The overbreadth doctrine
prohibits government from achieving its purpose by "means that sweep unnecessarily
broadly, reaching constitutionally protected as well as  unprotected activity."[13] Stated
otherwise, "the esence of overbreadth is that government has gone too far: its
legitimate interest can be satisfied without reaching so broadly in to the area of
protected freedom."[14]

In the case at bar, the prohibited surveys are all inclusive. They include "measurement
of opinions and perceptions of the voters as regards a candidate's popularity,
qualification, platforms or a matter of public discussion in relation to the
election, including voter's preference for candidates or publicly discussed issues during
the campaign period xxx." Clearly, the provision bans not only popularity surveys which
show the winning and losing candidates but all "measurement of opinions and
perceptions of the voters as regards a candidate's xxx qualifications, platforms or a
matter of public discussion in relation to the election xxx." The inhibitory effect of this
ban on free speech and the free flow of information which voters need to guide their
choice of candidates is too much.  Indeed, the ban does not distinguish between biased
and unbiased surveys or between surveys conducted with scientific accuracy and
surveys done sloppily or between surveys that help enlighten voters in exercising their
right of suffrage and surveys that mislead.  Petitioner Social Weather Stations, Inc. is one
of our more reliable private non-stock, non-profit social research institutions with a no-
nonsense record.  Yet, the provision in question, because of its overbreadth, will bar
petitioner from making its useful pre-election surveys.  Certainly, there are less drastic
means which government can utilize to achieve its objective of protecting voters from
false, misleading and unfair surveys.

I vote to grant the petition.

[1]
 See also section 24 (H) of COMELEC Resolution No. 3636 implementing R.A. No. 9006.

[2]
 Ibid., section 1 (9) (e).

[3]
 See Section 13 of R.A. No. 9006.

[4]
 See section 4 of Article III of the 1987 Constitution.

[5]
 Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, 51
SCRA 189 (1973).

[6]
 249 US 47 (1919).

[7]
 27 SCRA 835 (1969).

[8]
 See US v. Obrien, 391 US 367, 20 L. Ed. 672 (1968).

[9]
 Press Control and Copyright in the 16th and 17th Centuries, 17 Yale L.J. 841 (1920).

[10]
 Licensing Act of 1662, see Holdsworth, A History of English Law, 360-79 (2nd Ed.,
1937).

[11]
 Emerson, The doctrine of Prior Restraint in Law and Contemporary Problems, vol. 20,
pp. 651 (1955) citing Blackstone's Commentaries.

[12]
 283 US 697 (1931).

[13]
 J. Norwak, R. Rotunda & J. Young, Handbook on Constitutional Law 868 (2nd Ed.,
1983).

[14]
 Redish, The Warrent Court, the Burger Court and the First Amendment Overbreadth
Doctrine, 78 Nw. U.L. Rev. 1035 (1983-4).

CONCURRING OPINION
PANGANIBAN, J.:

I concur in the well-written ponencia  of Mr. Justice Vicente V. Mendoza holding that

Section 5.4[1] of Republic Act (RA) No. 9006 is unconstitutional.  The provision is a patent
infringement of the fundamental freedoms of expression and of the press.

In the recent case ABS-CBN Broadcasting Corporation v. Commission on Elections,[2] the

Court en banc junked Comelec Resolution No. 98-1419 dated April 21, 1998, which
restrained the conduct of exit polls, a species of electoral surveys.  We held that "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."  They cannot
be banned "totally in the guise of promoting clean, honest, orderly an credible
elections.  Quite the contrary, exit polls -- properly conducted and publicized -- can be
vital tools in eliminating the evils of election-fixing and fraud."  As mankind pushes the
frontiers of science and technology in mass communications, so must the scope of free
expression expand[3] to cover the conduct and the publication of surveys.

In said case, we visited the long-standing fundamental principle underlying democracies

that the freedom of expression is a preferred right, standing on a higher level than other
substantive liberties.  Indeed, as this nation has recently witnessed once again, lessons
of history, both political and leagal, illustrate that freedom of thought and speech is an
indispensable condition of nearly every other form of freedom.[4] Thus, our Constitution
explicitly mandates that no law shall be passed abridging the freedoms of speech and of
the press.[5]

While the exercise of these basic rights could not be absolute - liberty is never absolute
-- but may be subject to regulation by the state, any limitation should be justified by
a clear and present danger  of such substantive character that the state has a right to
prevent.[6] In other words, 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.[7]

There is, however, no compelling or justifiable reason for the prohibition made by
congress under the assailed law.  The Comelec also utterly fails to convince me that a
substantive danger, which the state has a right to prevent, lies lurking and threatening
to explode if ignited by the conduct and the dissemination of the prohibited surveys.

No lover of freedom, no guardian of the Constitution and no advocate of democracy can

agree to this unreasonable restraint.

Indeed, Daily Herald Co. v. Munro[8] held that the general interest of the state in
insulating voters from outside influences is insufficient to justify speech regulation.
WHEREFORE, I vote to GRANT the Petition and to DECLARE SECTION 5.4 OF RA 9006
UNCONSTITUTIONAL.

[1]
 "Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7) days
before an election."

[2]
 323 SCRA 811, January 28, 2000.

[3]
 Panganiban, Transparency, Unanimity & Diversity, 2000 ed., p. 376.

[4]
 Supra, citing Salonga v. Cruz Pano, 134 SCRA 438, 458-459, February 18, 1985.  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.

[5]
 Sec. 4, Art. III, Constitution.

[6]
 See Priomicias v. Fugoso, 80 Phil. 71 (1948); American Bible Society v. City of Manila;
101 Phil. 386 (1957); Iglesia ni Cristo v. MTRCB, 259 SCRA 529, July 26, 1996.

[7]
 Adiong v. Comelec, supra.

[8]
 838 F 2d 380 (9th Cir. 1988), cited in ABS-CBN v. Comelec, supra.

DISSENTING OPINION

KAPUNAN, J.:

Two seemingly conflicting rights or interests, both integral to our democratic system,
are involved in this case.

On the one hand are the freedoms of speech and of the press, which, as often stated,
are accorded a preferred status in our constitutional hierarchy,[1] essential as they are to
preservation and vitality of our civil and political institutions.[2] The primacy, the high
estate of these freedoms is a fundamental postulate of our constitutional system.[3]

On the other hand, the Constitution requires the State to "guarantee equal access to
opportunities for public service,"[4] and mandates Congress to "provide a system for
securing the secrecy and sanctity of the ballot."[5] The State's interest in holding "free,
orderly, honest, peaceful and credible elections"[6] cannot be denied.

At the heart of the controversy is Section 5.4 of Republic Act No. 9006,[7] otherwise
known as the "Fair Election Act,"[8] which states that:

Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.

"Surveys," as used above, pertain to "election surveys," which in Section 5 thereof-

xxx refer to the measurement of opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a matter of public discussion in
relation to the election, including voters' preference for candidates or publicly discussed
issues during the campaign period. xxx

The Fair Election Act was signed into law by the President on February 12, 2001. 
Pursuant to its authority under Section 13 thereof, the Commission on Elections
(COMELEC) on March 1, 2001 promulgated through Resolution No. 3636 the
Implementing Rules and Regulations of the Fair Election Act.  Section 24 of the
implementing rules is a verbatim reproduction of Section 5.4.

Petitioners contend that the subject provisions violate the freedoms of speech and of
the press enshrined in Section 4, Article III of the Constitution thus:

No law shall be passed abridging the freedom of speech, of expression, or of the press
xxx.

As publisher of a newspaper, Kamahalan maintains that its right to freedom of the press
is unduly infringed by section 5.4.  Insofar as publication (of surveys) is a component of
the freedom of speech, the freedom of SWS is also purportedly severely restricted.

Although among our most cherished rights, the freedoms of speech and of the press are
not absolute or unlimited.  In certain instances, this Court has allowed the regulation of
the exercise of these freedoms vis-a-vis election-related laws.  In Osmena vs.
Commission on Elections[9]  and National Press Club vs. Commission on Elections,
[10]
  the  law prohibiting newspapers, radio broadcasting and television station from
selling or giving free of charge print space or air time for campaign or other political
purposes was declared valid.  In Badoy vs. Commission of Elections,[11] the prohibition on
the publication of paid political advertisements outside the COMELEC space was
likewise upheld.  In Gonzales vs. Commission on Elections, [12] where the prohibition on
the early nomination of candidates and the limitation on the period of election
campaign or partisan political activity under Republic Act No. 4880 was assailed for
being violative of the freedoms of speech, of the free press, of assembly and of
association, the Court declared the law not unconstitutional.

Courts have employed certain tests to determine the validity of restrictions on the rights
to free speech and free press.  The "dangerous tendency" rule provided that the State
has the power to proscribe and punish speech which "creates a dangerous tendency
which the State has a right to prevent."[13] This formulation, however, had long been
abandoned in the United States as well as in this jurisdiction.

The "clear and present danger" rule postulates that "the question in every case is
whether the words are used in such circumstances and are of such nature as to create a
clear an present danger that they will bring about the substantive evils that Congress
has the right to prevent."[14] This rule has been applied in our jurisdiction in a number of
cases.[15]

Nevertheless, Associate Justice Fred Ruiz Castro, Later Chief Justice, in his separate
opinion in Gonzales vs. Commission on Elections,[16] expressed the view that in
determining the constitutionality of Republic Act No. 4880 assailed therein, another
approach, the so-called "balancing-of-interests" test, was more appropriate.  He
observed:

However useful the "clear and present danger" formulation was in the appraisal of a
specific type of situation, there is fairly extensive recognition that it is not a rule of
universal applicability and validity, not an automatic mechanism that relives a court of
the need for careful scrutiny of the features of a given situation and evaluation of the
competing interests involved.[17]

Justice Castro cited American Communications Association v. Douds,[18] where the

"balancing-of-interests" test was supplied.  In said case, the United States Supreme
Court stated that "in suggesting that the substantive evil must be serious and
substantial, it was never the intention of [the U.S. Supreme Court] to lay down an
absolutist test measured in terms of danger to the Nation."[19] Chief Justice Vinzons,
expounded:

When a particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is
to determine which of the two conflicting interests demands the greater protection
under the particular circumstances presented.  xxx In essence, the problem is one of
weighing the probable effects of the statute upon  the free exercise of the right of
speech and assembly against the congressional determination xxx We must, therefore,
undertake the delicate and difficult task xxx to weigh the circumstances and to appraise
the substantiality of the reasons advance in support of the regulation of the free
enjoyment of the rights.[20]
The test is further explained thus:

The theory of balance of interests represents a wholly pragmatic approach to the

problem of First Amendment freedom, indeed, to the whole problem of constitutional
interpretation. It rests on the theory that it is the Court's function in the case before it
when it finds public interests served by legislation on the one hand, and First
Amendment freedoms affected by it on the other, to balance the one against the other
and to arrive at a judgment where the greater weight shall be place.  If on  balance it
appears that public interest served by restrictive legislation is of such character that it
outweighs the abridgment of freedom, then the court will find the legislation valid.  In
short, the balance-of-interests theory rests on the basis that constitutional freedoms are
not absolute, not even those stated in the First Amendment, and that they may be
abridged to some extent to serve appropriate and important public interests.[21]

In Zaldivar vs. Sandiganbayan,[22] this Court reiterated that the clear-and-present danger

test was not a cure-all to freedom of speech controversies:

The "clear and present danger doctrine," which test is invoked by respondent's counsel
is not a magic incantation which dissolves all problems and dispenses with analysis and
judgment in the testing of the legitimacy of claims to free speech, and which compels a
court to exonerate a defendant the moment the doctrine is invoked, absent proof of
impending apocalypse.  The "Clear and present danger" doctrine has been an accepted
method for marking out the appropriate limits of freedom of speech and of assembly in
certain contexts. It is not, however, the only test which has been recognized and applied
by courts.[23]

Zaldivar cited the case of Lagunzad vs. Soto Vda. De Gonzales, [24] where the Court also
referred to the shortcomings of the clear-and-present doctrine noted by Justice Castro
in Gonzales.  Justice Melencio-Herrera further wrote:

xxx Another criterion for permissible limitation on freedom of speech and of the press,
which includes such vehicles of the mass media as radio, television and the movies, is
the "balancing-of-interests test."  The principle "requires a court to take conscious and
detailed consideration of the interplay of interests observable in a given situation or
type of situation."[25] [Citations omitted.]

It is my considered opinion that given the apparent conflict between petitioners' rights
of speech and press - rights enshrined in the Constitution, and the inherent power of
Congress to legislate on matters public interest and welfare, and in pursuance of the
constitutional policy of ensuring of "free, orderly, honest, peaceful and credible
elections," it is ultimately this Court's function and duty to undertake the delicate and
difficult task of weighing and balancing the circumstances to determine whether public
interest is served by the regulation of the free enjoyment of the rights.
I believe that Congress did not exceed constitutional limitations in enacting Section 5.4.

Indisputably, the State has a legitimate interest in fostering an informed electorate.[26] It

has a compelling interest in protecting voters from confusion and undue
influence[27] and, generally, in preserving the integrity of its election process.[28] In
furtherance of these State interests, Congress is empowered to enact laws relative to
the conduct of elections.  It may not only regulate the time, manner and place of the
holding of the elections but may likewise regulate the election campaigns and other
activities relative thereto.[29]

In enacting the Fair Election Act, Congress declared that the State "shall, during the
election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of media of communication or information to guarantee or
ensure equal opportunity for public service, including access to media time and space,
and the equitable right to reply for public information campaigns and fora among
candidates and assure free, orderly, honest, peaceful and credible elections."[30] Further,
said law aims to "ensure that bona fide candidates for any public office shall be free
from any form of harassment and discrimination."[31]

Towards these ends, Section 5.4 was incorporated specifically to prevent the evils
brought about by election surveys published immediately before an election.  The
deliberations on the Senate Floor are revealing:

Adverting to the bill of Senator Tatad, Senator Defensor Santiago said that the country
has no law regulating the conduct of surveys and the activities of survey stations and
private groups particularly those relating to political opinions.  She said that some
Western countries prohibit political opinion polls or surveys for certain periods before
elections to avoid last minute pressure on voters as politicians and political parties often
cause the conduct and dissemination of surveys to advance their political interests.

She informed the body that the Internet reported on a worldwide survey on the
publication of poll results prior to elections where 30 of the 78 countries surveyed apply
legal restrictions on the publication of public opinion survey results comprising an
embargo prior to general elections, which ranges from 24 hours to six weeks before an
election.  She said that among the reasons for the government restrictions cited by the
Internet survey were protecting the integrity of the democratic process, the rights of
privacy and national security considerations.

According to the report, she said, some countries in recent years have prolonged their
embargo periods - for example, Italy, from seven to 28 days; Canada, from no ban to
three days; and Chile, from one to seven days - while other countries have shortened or
withdrawn their embargoes - for example, Croatia, from three days to 24 hours;
Colombia, from 10 to seven days; and Argentina, from two weeks to no ban.

In this connection, Senator Defensor Santiago asked whether Senator Roco would
consider an amendment providing for the criteria for the publication of opinion surveys
as she expressed fear that an opinion survey firm might work diligently for some time in
order to establish a reputation for credibility and then, at the ultimate hour, sell its
services to the highest bidder.

Senator Roco recalled that earlier in the session, he had discussed with senator
Defensor Santiago and some senators the idea of not just lifting the ban on election
propaganda but also of giving fair protection to candidates, especially from the
unfairness of reporting certain survey results during the campaign period.  He added
that the committee had been studying the rule in the United States where poll surveyors
mention who authorized and paid for the survey, and what method was used, and
furnish raw data to anybody who feels aggrieved by the poll results.  He agreed that
there must be a period when surveys should not be published because they influence
elections through self-fulfilling predictions.

However, Senator Roco expressed concern that a full-blown debate on another issue
might impede the approval of the bill, although he welcomed an amendment which
would create a balance of fair reporting and fair opportunity for candidates.

Senator Defensor Santiago warned that the fate of the country's leadership should not
be left in the hands of survey firms which are not accountable to the people and possess
no amount of sovereign power.  Additionally, she expressed resentment that a public
official like herself should be treated like a can of sardines because poll surveys have
reduced political life to a mere matter of appearances.

Senator Roco commented that all professions which deal with communications are
aware that the way a question is put can influence the answer; the more simplistic
question can give rise to a host of interpretations.  On the other hand, he said, it is a
matter of public interest if there is an attempt to measure validity or acceptability of
issues; still, full disclosure and transparency should apply to poll surveyors and to all
who try to promote and protect public welfare.[32]

The original proposal was a 30-day restriction on the publication of surveys. Senator
Flavier suggested the deletion of the restriction,[33] while Senator Osmeña was amenable
to a shorter period of 3 days.[34] Senators Roco and Defensor-Santiago vigorously
opposed the deletion. Senator Roco said that:

x x x the committee cannot accept the deletion of the prohibition as he observed that in
the Philippines, the bandwagon effect is part of campaign planning.  He recalled that in
1969, the influence of propaganda was so evident: every single pole or space was
plastered with "Marcos-Lopez" posters and for the duration of the one-year campaign
period, the newspapers kept on repeating that Marcos-Lopez was unbeatable that after
a while, the people believed it. He explained that it is the publication and not the
conduct of surveys that would be prohibited in this Act. However, he pointed out that
the surveys would be useful to senatorial candidates, especially those who wish to land
in the top six slots, because their names would be repeatedly mentioned on TV so that
the voters might be influenced to vote for them. He said that candidates particularly
those who do not have access to TV and radio have no money to influence publications
should be given equal break during the 30-day period. He appealed the Members to
support the committee's position.[35]

Senator Defensor-Santiago concurred with Senator Roco:

x x x She pointed out that at the start of the debate, the Body was of the consensus that
the operating principles of the bill should be equality and impartiality. She opined that
these principles would be violated if the Body would delete the prohibition. Moreover,
she argued that a political neophyte who deserves exposure because of his honesty,
competence and efficiency would probably not be in the winning circle until the crucial
decisive few days before the election. She said that the publication of a survey at any
point earlier than that would be detrimental to the candidate and to national interest.
She expressed support for Senator Roco's appeal to maintain the present provision.  She
said that the freedom of expression in a constitutional dimension was not relevant to
the discussion because a candidate who can afford it can ask any agency to conduct a
survey; however, out of compelling national interest in the Philippine culture context,
the State prohibits the publication of surveys within a certain period so as to avoid
manipulating the minds of the electorate and to preserve the principle of equality and
impartiality.[36]

Eventually, the position of Senators Roco and Defensor-Santiago prevailed[37] although,

after the Bicameral Conference, the original 30-day limitation was reduced to 15 days
with respect to surveys affecting national candidates.

Evidently, Congress found that the publication of surveys within the prohibited period
inordinately works against candidates who are shown to be "losing."  The assailed
provision thus seeks to avert the "bandwagon effect" supposedly caused by the
publication of election surveys. The bandwagon effect results when a voter opts for a
candidate or candidates whom the surveys reveal as the leading contender or
contenders, the voter believing, rightly or wrongly, that the candidate or candidates
whom the voter actually prefers would lose anyway, as indicated in the surveys. The
bandwagon effect produces more votes for the "winning" candidate ordained as such by
the surveys and less votes for the "losing" candidate. Surveys add to the prospects of
the "winner" and lessen that of the "loser," who is thereby deprived of an equal
opportunity to get elected. Hence, the surveys take the form of a self-fulfilling prophecy.
Ideally, a citizen ought to vote for a candidate based on the latter's personal
qualifications and platform for governance. This is the ideal that the law aims to achieve;
surveys published during the prescribed period before the elections have been deemed
by Congress to frustrate this objective.

The prospect of misinformation magnifies the dangers of the bandwagon effect. There is
nothing to prevent unscrupulous interests from procuring the services of an enterprise
masquerading as a "credible" research institution to conduct "surveys" with
predetermined results, and cause their publication. Worse, there is nothing to prevent
the simple publication of entirely false results. The evil of the bandwagon effect caused
by election surveys, whether absolutely accurate or utterly untrue, is further enhanced
by the pervasiveness of media. Advances in technology have widened the electorate's
access to both information and, regrettably, to misinformation.

It may be argued that propaganda portraying a candidate as possessing certain virtues

or espousing certain causes, regardless of the truth of these claims, also influence the
voter in making his or her choice. The distinction lies in that a survey lulls the voter into
thinking that the election is over but the counting, and that his vote for a losing
candidate would not matter in the end. While election propaganda expressly urge the
voter to choose a candidate because of his qualifications and causes, the surveys,
clothed with the mantle of statistics and couched in esoteric terminology, implicitly urge
the voter to choose a candidate because of his popularity. This persuasive effect is
unique to surveys; it is a feature absent in election propaganda.

This congressional concern regarding the bandwagon effect is supported by a study

cited by the Solicitor General:

It is noteworthy that it is easier to translate voting intentions into potential seats in a

two-party system than in a multi-party arrangement. The accuracy of election polls is
also determined by actual voter turnout; pre-election surveys can sometimes be out of
date by the time they are reported. x x x. Last, polls can present an opportunity for
deliberate misrepresentation or connivance by those who publish survey results; many
examples of this practice by political parties have been cited. Advocacy groups seeking
to influence the public agenda can also commission polls for public release and may
draft questions to support their case or point of view. In short, public opinion surveys
are blunt instruments of prediction and are susceptible to many forms of error.

Opponents of political polling point to notable failures like the predicted victories of
Landon over Roosevelt in 1936, of Dewey over Truman in 1948, and of Wilson over
Heath in Britain in 1970. Most pollsters considered the outcome of the 1980 presidential
election in the United States too close to call, yet Ronald Reagan won by a landslide. The
1992 surprise victory of the Conservatives over Labour in Britain is another similar
example. x x x

THE IMPACT OF POLLING ON THE ELECTORAL PROCESS

A. Direct Effects

Because polls are generally perceived to be accurate and scientific, the debate on
polling centres largely whether it undermines the democratic process by influencing
electoral behaviour and election results. Some political strategists and observers argue
that the publication of polls gives an unfair advantage to parties or candidates whose
fortunes are seen to be improving. The so-called "bandwagon" effect assumes that
knowledge of a popular "tide" will likely change voting intentions in favour of the
frontrunner, that many electors feel more comfortable supporting a popular choice or
that people accept the perceived collective wisdom of others as being enough reason
for supporting a candidate.

The bandwagon phenomenon, however, is dismissed by those who argue that voters do
not pay much attention to poll results in the first place, that not everyone believes
them, and that it is not important for everyone to be on the winning side. Furthermore,
while some voters may want to be on the victorious side, at least a few will rally to
support the expected loser out of sympathy - the so-called "underdog" effect - which
would cancel out or annul any shifts in preference.

Although academics in the United States have long been divided over the impact of
published polls on the outcome of elections, recent research supports the proposition
that their publication can influence a close election, with the most impact occurring late
in a campaign. Recent studies in Canada also support the notion that polls published
during political campaigns can create the "politics of expectations," a situation that
stimulates the bandwagon effect and promotes "strategic voting," in which voting is
influenced by the chances of winning.  For example, citizens may cast ballots for their
second-choice candidate who appears to have a better chance than the first choice of
defeating a disliked candidate or party. Such behaviour is said to be increasing in Canada
as close three-party races become more common. It is therefore argued that voters
making such strategic choices have every right to expect that the results of opinion
surveys are scientifically valid.[38]

The same study also pointed out other "indirect effects" of surveys published during the
election period, that it detracts from the "real" issues of the election and affects a
candidate's momentum:

B. Indirect Effects

The indirect effects of polls during elections may be as important as their possible direct
influence. Because of the multiplicity of published surveys and the attention they
receive from the media, some charge that polls detract from discussion of the "real"
issues. Indeed, many describe news coverage of Canadian elections as being analogous
to that of a sporting event or "horse-race," with serious analysis of the issues or
investigation into areas of voter concern being largely ignored. The media's emphasis on
who is winning and who is losing (as well as on the campaign "style" of leaders and their
parties) may also result in so-called "leader-fixation." As one scholar explains:

Polls conducted throughout the campaign . . . focus on leadership in an attempt to

predict the outcome of the election and to explain it in terms of leader appeal. The polls
are presented as measures to gauge how the leaders' campaigns are fairing. In this
sense the media coverage misrepresents the political system, narrows the focus of
public debate, and denigrates political leaders and institutions.[39]

The deliberations during the Bicameral Conference also intimate another purpose in
passing the challenged provisions, that is, to prevent the nefarious election scheme
known as "dagdag-bawas." Dagdag-bawas,  a phenomenon peculiar to Philippine
elections, takes place when votes cast in favor of one candidate are deducted then
credited to another. Senator Roco also observed that last-minute surveys generate
"junking" of candidates at the tail end of the surveys by their very own party-mates or
supporters.

CHAIRMAN ROCO.  I do not want to say it that way. I only said, that if you will target
people to campaign against, you will target people who are outside 1 to 6 because it is a
waste of time to try to drag No. 6 down to 13. Legitimate campaign.

Mapababa mo man ang No.1, umabot ng no. 6, he or she still occupies one post.  Hindi
nawawala. Ang tatargetin mo, 9, 10, 11, parang junking doon sa sample ballots
mawawala yong mga mabababa because yon ang puedeng mawala. Yong 1 to 6 or 1 to
8, ang hirap-hirap nang tanggalin.

So, in your sample ballots you don't care.  Sa sample ballots, kung sa surveys 10, 11, 12,
eh, lalo kung 12, naku, candidate 'yon for disappearance.  Yon ang mga napapalitan ang
mga favorite.  Hindi ba?  Sa Bicol tanggal yon.  Ang lalabas doon Bicolano lang.  Di ba?
Kung mahina-hina ang No.12, tanggal na yon.  Mahina-hina ang No.11, tanggal na yon sa
mga regions.  Every region has its own favorite.  Papasok na sa sample ballots.  Walang
dayaan yon.  But you will not try to eliminate somebody who is impossible to eliminate. 
What is your interest?  Loren is No.1, so, she becomes No.3.  Who cares! Maybe, she's a
bit unhappy.  But she is still senator, you see![40]

Senator Legarda-Leviste also expressed that "it is the fear of some of the other senators
that because they are perceived to be the last three or four slot occupants and they
could be the target of a 'dagdag-bawas.'"[41]
That the law, in Sections 5.2 and 5.3, prescribes certain requirements in the publication
of surveys and allows the inspection thereof do not suffice to thwart the dangers sought
to be avoided by Section 5.4. Election surveys are more in demand as the elections draw
closer. The reason is obvious. The public rating of the candidates shifts from time to
time over the months.  But a survey taken very close to the election might be taken as
indicative of a firm and final tally of the results, giving more motive to fly-by-night
pollsters or survey groups controlled by vested interests to manipulate the survey
results.  It is conceded that Sections 5.2 and 5.3 affords interested parties an
opportunity to examine and analyze the published surveys and to refute or confirm their
accuracy.  However, these regulations lose their efficacy during the period
contemplated by Section 5.4 because said interested parties would no longer have
adequate time to test the veracity of said surveys, especially if they are published, say, a
day before the elections.[42]

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable.  Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys.  It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion.  These surveys may be
published thereafter.

Our electoral system and processes are not necessarily of the same level of political
maturity that countries like the United States and other more developed countries have
attained.  It is noteworthy that numerous other countries recognized the deleterious
effects on the electoral process by the publication of surveys immediately before the
elections.  Accordingly, they impose similar restrictions, although varying as to the
periods:  Turkey and Luxembourg, 30 days; South Africa, 42 days; Italy, 28 days;
Indonesia, 21 days; Peru, Venezuela and Uruguay, 15 days; Poland, 12 days; France,
Hungary, Portugal, Switzerland, Chile, Columbia and Mexico, 7 days; Spain, 5 days;
Russia, Australia and Bolivia, 2 days; Fiji, New Zealand, Armenia, Belarus, Bulgaria,
Croatia, Khazakstan and Lithuania, 1 day.[43]

The reasons advanced in support of Section 5.4, far from being matters of mere
legislative preferences or beliefs regarding the evils sought to be remedied, sufficiently
justify the restriction on such vital rights as the freedoms of speech and of the press.  It
bears stressing that it is Congress, not this Court, which his primarily charged with the
determination of the need for regulation of such activities. Thus, insofar as the need for
regulation of the publication of election surveys within the periods laid down in Section
5.4 is concerned, this Court is in no position to substitute its judgment as to the
necessity or desirability of the same for that of Congress.[44]
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition.

[1]
 Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712 (1992); Mutuc vs.
Commision on Elections, 36 SCRA 228 (1970).

[2]
 Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills, 51
SCRA 189 (1973).

[3]
 Gonzales vs. Commission of Elections, 27 SCRA 835 (1969).

[4]
 Article II, Section 26.

[5]
 Article V, Section 2.

[6]
 Article IX-C, Section 4 reads:

Sec. 4.  The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.

[7]
 An Act to enhance the Holding of Free, Orderly, Honest, Peaceful and Credible
Elections Through Fair Election Practices.

[8]
 R.A. No. 9006, Section 1.

[9]
 288 SCRA 447 (1998).

[10]
 207 SCRA 1 (1992).

[11]
 35 SCRA 285 (1970).

[12]
 Supra.

[13]
 Gitlow v. New York, 268 U.S. 652, 69 L Ed 1138.

[14]
 Schenck v. Untied states, 249 U.S. 47, 63 L Ed 470, 473-474.
[15]
 ABS-CBN Broadcasting Corp. vs. Commission on Elections, 323 SCRA 811 (2000); Blo
Umpar adiong vs. Commission on Elections, supra; Imbong vs. Ferrer, 35 SCRA 28 (1970).

[16]
 Supra.

[17]
 Id., at 898.

[18]
 339 U.S. 383, 94 L Ed 925.

[19]
 Id., at 944.

[20]
 Id., at 943.

[21]
 KAUPER, CIVIL LIBERTIES AND THE CONSTITUTION, p. 113 cited in Separate Opinion,
Castro, J., in Gonzales vs. Commission on Elections, supra.

[22]
 170 SCRA 1 (1989).

[23]
 Id., at 8.

[24]
 92 SCRA 476 (1979).

[25]
 Id., at 488.

[26]
 Eu v. San Francisco Democratic Com., 489 US 214, 103 L Ed 2d 271, 109 S Ct. 1013.

[27]
 Burson v. Freeman, 119 L Ed 2d 5.

[28]
 Id.; ABS-CBN Broadcasting Corp vs. Commission on Elections, 323 SCRA 811 (2000).

[29]
 Gonzales vs. Commission on Elections, 27 SCRA 835 (1969).

[30]
 Republic Act No. 9006, Section 2.

[31]
 Ibid.

[32]
 Senate Journal, Session No. 13, August 21, 2000, pp. 189-190.

[33]
 Senate Journal, Session No. 22, October 2, 2000, p. 266.

[34]
 Ibid.
[35]
 Id., at 267.

[36]
 Id., at 267-268.

[37]
 Id., at 268.

[38]
 Comment of the Solicitor General, pp. 8-11, citing Public Polling in Canada by Claude
Emery, at http://www.parl.gc.ca/information/library/PRBpubs.

[39]
 Id.

[40]
 Transcript of Committee Meetings, Bicameral Conference Committee on the
Disagreeing Provisions of Senate Bill No. 1742 and House Bill No. 9000, November 23,
2000, p. 32.

[41]
 Id., at 36.

[42]
 Alvin Capino, in his column "counterpoint" (today, April 21, 2001) had this to say:

One more reason why survey results for senators should be taken with a grain of salt is
the explanation of Felipe Miranda of Pulse Asia about the adjustment pollsters make
because of the so-called command votes.

Command votes are the block votes of religious groups like Iglesia ni Cristo and El
Shaddai. Members of these groups vote according to the instructions of their leaders.

According to those who attended a recent briefing of Miranda, the head of Pulse Asia
places minor weight on the so-called command votes.  Pulse Asia places the command
votes at a low 1.5 million votes.  The number, the say, would have no major impact on
the election results.

The problem of pollsters is that members of the Iglesia ni Cristo with a voting strength of
at least three million do not participate in surveys.  The fact that INC members are not
covered by surveys could distort survey results.

A senatorial candidate, for example, who thinks that he safe in, say, his ranking of 8th or
9th might suddenly find himself outside the Magic 13 simply because the senatorial
candidates below him were supported by the INC and he was not.

[43]
 Senate Journal , Session No. 22, October 2, 2000, p. 267.

[44]
 See American Communications Association vs. Douds, supra.
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b.  Dangerous tendency rule

  b.i.          Cabansag vs. Fernandez, 102 Phil. 152

102 Phil. 152

[ G.R. No. L-8974, October 18, 1957 ]

APOLONIO CABANSAG, PLAINTIFF VS. GEMINIANA MARIA FERNANDEZ, ET AL.,

DEFENDANTS. APOLONIO CABANSAG, ROBERTO V. MERRERA AND RUFINO V.
MERRERA, RESPONDENTS AND APPELLANTS.

DECISION

BAUTISTA ANGELO, J.:

This is a contempt proceeding which arose in Civil Case No. 9564 of the Court of First
Instance of Pangasinan wherein Apolonio Cabansag and his lawyers Roberto V. Merrera
and Rufino V. Merrera were found guilty and sentenced the first to pay: a fine of P20
and the last two P50 each with the warning that a repetition of the offense will next
time be heavily dealt with.

Apolonio Cabansag filed on January 13, 1947 m the Court of First Instance of Pangasinan
a complaint seeking the ejectment of Germiniana Fernandez, et al. from a parcel of land.
Defendants filed their answer on January 31, 1947 and a motion to dismiss on February
2, 1947, and when the latter was denied, the court upon motion of plaintiff's counsel,
set the case for hearing on July 30, 1947. The hearing was postponed to August 8, 1947.
On that day only one witness testified and the case was postponed to August 25, 1947.
Thereafter, three incidents developed, namely: one regarding a claim for damages
which was answered by defendants, another concerning the issuance of a writ of
preliminary injunction which was set for hearing on March 23, 1948, and the third
relative to an alleged contempt for violation of an agreement of the parties approved by
the court. Pleadings were filed by the parties on these incidents and the court set the
ease for hearing on October 27, 1948. Hearing was postponed to December 10, 1948.
On this date, only part of the evidence was received and the next hearing was scheduled
for January 20, 1949. Hearing was again postponed to January 24, 1949 when again only
part of the evidence was received and the case was continued to October 4, 1949.

On October 4, 1949, the court, presided over by Judge Villamor, upon petition of both
parties, ordered the stenographers who took down the notes during the previous
hearings to transcribe them within 15 days upon payment of their fees, and the hearing
was postponed until the transcript of said notes had been submitted. Notwithstanding
the failure of the stenographers to transcribe their notes, the hearing was set for March
17, 1950. Two more postponements followed for March 23, 1950 and March 27,1950.
On August 9, 1850, August 23, 1960, September 26, 1950 and November 29, 1950,
hearings were had but the case was only partly tried to be postponed again to January
30, 1951 and February 19, 1951. Partial hearings were held on February 20, 1951, March
12, 1951 and June 6, 3951. These hearings were followed by three more postponements
and on August 15, 1951, the case was partially heard. After this partial hearing, the trial
was continued on March 6, 1952 only to be postponed to May 27, 1952, No hearing
took place on said date and the case was set for continuation on December 9, 1952
when the court, Judge Pasicolan presiding, issued an order suggesting- to the parties to
arrange with the stenographers who took down the notes to transcribe their respective
notes and stating that the case would be set for hearing' after the submission of the
transcript. From December 9, 1952 to August 12, 1954, no further step was taken either
by the court or by any of the contending parties in the case.

On December 30, 1953, when President Magsaysay assumed office, he issued Executive
Order No, 1 creating the Presidential Complaints and Action Commission (PCAC), which
was later superseded by Executive Order No. 19 promulgated on March 17, 1954. And
on August 12, 1954, Apolonio Cabansag, apparently irked and disappointed by the delay
in the disposition of his case, wrote the PGAC a letter copy of which he furnished the
Secretary of Justice and the Executive Judge of the Court of First Instance of Pangasinan,
which reads:

 
"We, poor people of the Philippines are very grateful for the creation of your Office.
Unlike, in the old days, poor people are not heard, but now the PCAC its the sword of
Damocles ready to smite bureaucratic aristocracy. Poor people can now rely on the
PCAC to help them.

"Undaunted, the undersigned begs to request the help of the PCAC in the interest of
public service, as President Magsaysay has in mind to create the said PCAC, to have his
old case stated above be terminated once and for all. The undersigned has long since
been deprived of his land thru the careful maneuvers of a tactical lawyer. The said case
which had long been pending could not be decided due to the fact that the transcript of
the records has not, as yet, been transcribed by the stenographers who took the
stenographic notes. The new Judges could not proceed to hear the case before the
transcription of the said notes. The stenographers who took the notes are now assigned
in another courts. It seems that the undersigned will lie deprived indefinitely of his right
of possession over the land he owns. He has no other recourse than to ask the help of
the ever willing PCAC to help him solve his predicament at an early date.

"Now, then, Mr. Chief, the undersigned relies on you to do your utmost best to bring
justice to its final destination. My confidence reposes in you.  Thanks.

Most confidently yours,

(Sgd.)    Apolonio   Cabansag
Plaintiff"

Upon receipt of the letter, the Secretary of Justice indorsed it to the Clerk of Court,
Court of First Instance of Pangasinan, instructing him to require the stenographers
concerned to transcribe their notes in Civil Case No. 9564. The clerk of court, upon
receipt of this instruction on August 27, 1954, referred the matter to Judge Jesus P.
Morfe before whom the case was then pending informing him that the two
stenographers concerned, Miss Illuminada Abello and Juan Caspar, have already been
assigned elsewhere. On the same date, Judge Morfe wrote the Secretary of Justice
informing him that under the provisions of Act No. 2383 and Section 12 of Rule 41 of the
Rules of Court, said stenographers are not obliged to transcribe their notes except in
cases of appeal and that since the parties are not poor litigants, they are not entitled to
transcription free of charge, aside from the fact that said stenographers were no longer
under his jurisdiction.

Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for defendants,

filed a motion before Judge Morfe praying that Apolonio Cabansag be declared in
contempt of court for an alleged scurrilous remark he made in his letter to the PCAC to
the effect that he, Cabansag, has long been deprived of his land "thru the careful
maneuvers of a tactical lawyer", to which counsel for Cabansag replied with a counter-
charge praying that Atty. Fernandez be in turn declared in contempt because of certain
contemptuous remarks made by him in his pleading. Acting on these charges and
counter-charges, on September 14, 1954, Judge Morfe dismissed both charges but
ordered Cabansag to show cause in writing within 10 days why he should not be held
liable for contempt for sending the above letter to the PCAC which tended to degrade
the court in the eyes of the President and the people. Cabansag filed his answer stating
that he did not have the slightest idea to besmirch the dignity or belittle the respect due
the court nor was he actuated with malice when he addressed the letter to the PCAC;
that there is not a single contemptuous word in said letter nor was it intended to give
the Chief Executive a wrong impression or opinion of the court; and that if there was
any inefficiency in the disposal of his case, the same was committed by the judges who
previously intervened in the case.

In connection with this answer, the lawyers of Cabansag, Roberto V. Mcrrera and Rufino
V. Merrera, also submitted a written manifestation stating that the sending of the letter
of their client to the PCAC was through their knowledge and consent because they
believed that there was nothing wrong in doing so. And it appearing that said attorneys
had a hand in the writing and remittance of the letter to the PCAC, Judge Morfe, on
September 29, 1954, issued another order requiring also said attorneys to show cause
why they should not likewise be held for contempt for having committed acts which
tend to impede, obstruct or degrade the administration of justice.

Anent the charge for contempt preferred by Judge Morfe against Apolonio Cabansag,
several incidents took place touching on the right of the Special Counsel of the
Department of Justice to appear as counsel for Cabansag, which were however settled
when the court allowed said Special Counsel to appear as amicus curiae in his official
capacity. In addition to this Special Counsel, other members of the local bar were
likewise allowed to appear for respondents in view of the importance of the issues
involved. After due hearing, where the counsel of respondents were allowed to argue
and submit memoranda, the court rendered decision finding respondents guilty of
contempt and sentencing them to pay a fine as stated in the early part of this decision.
Respondents in due time appealed to this .Court.

The issues involved in this appeal appear well stated in the decision of the trial court.
They are: (a) Did the writing of the letter in question to the PCAC tend directly or
indirectly to put the lower court into disrepute or belittle, degrade or embarrass it in its
administration of justice?; and (6) Did the writing of said letter tend to draw the
intervention of the PCAC in the instant case which will have the effect of undermining
the court's judicial independence?

We agree with the trial court that courts have the power to preserve their integrity and
maintain their dignity without which their administration of justice is bound to falter or
fail (Viilavicencio vs. Lukban, 39 Phil., 778; Borromeo vs. Mariano, 41 Phil., 322). This is
the preservative power to punish for contempt (Rule 64, Rules of Court; Viilavicencio vs.
Lukban, supra). This power is inherent in all courts and essential to their right of self-
preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In order that it may
conduct its business unhampered by publications which tend to impair the impartiality
of its decisions or otherwise obstruct the administration of justice, the court will not
hesitate to exercise it regardless of who is affected. For, "as important as is the
maintenance of an unmuzzled press and the free exercise of the rights of the citizen is
the maintenance of the independence of the judiciary" (In re Lozano and Quevedo, 54
Phil., 801). The reason for this is that respect of the courts guarantees the stability of
their institution. Without such guaranty, said institution would be resting on a very
shaky foundation  (Salcedo vs. Hernandez, 61 Phil., 724).
The question that now arises is: Has the lower court legitimately and justifiably
exercised this power in the instant case?

The lower court tells us that it has because in its opinion the act of respondents tended
to put it into disrepute or belittle or upgrade or embarrass it in its administration of
justice, und so it punished them for contempt to protect its judicial independence. But
appellants believe otherwise, for they contend that in sending the letter in question to
the PCAC, they did nothing but to exercise their right to petition the government for
redress of their grievance as guaranteed by our constitution (section 1, paragraph 8,
Article III).

"The very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect to public affairs and to petition for
a redress of grievances.' The First Amendments of the Federal Constitution expressly
guarantees that right against abridgment by Congress. But explicit mention there does
not argue exclusion elsewhere. For the right is one that cannot he denied without
violating those fundamental principles of liberty and justice which lie at the base of all
civil and political institutions,—principles which the Fourteenth Amendment embodies
in the general terms of its due process clause." (Emerson and Haber, Political and Civil
Rights in the United States, p. 419.)

We are therefore confronted with a clash of two fundamental rights which lie at the
bottom of our democratic institutions—the independence of the judiciary and the right
to petition the government for redress of grievance. How to balance and reconcile the
exercise of these rights is the problem posed in the case before us.

"* * * A free press is not to be preferred to an independent judiciary, nor an indepedent

judiciary to a free press. Neither has primacy over the other; both are indispensable to a
free society. The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the potent
means for assuring judges their independence is a free press." (Justice Frankfurter,
concurring in Pennekamp vs. Florida, 328 U.S. 354-356)

Two theoretical formulas had been devised in the determination of conflicting rights of
similar import in an attempt to draw the proper constitutional boundary between
freedom of expression and independence of the judiciary. These are the "clear and
present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a
number of cases, means that the evil consequence of the comment or utterance must
be "extremely serious and the decree of imminence extremely high" before the
utterance can be punished. The danger to be guarded against is the "substantive evil"
sought to be prevented. And this evil is primarily the "disorderly and unfair
administration of justice." This test establishes a definite rule in constitutional law. It
provides the criterion as to what words may be published. Under this rule, the advocacy
of ideas cannot constitutionally be abridged unless there is a clear and present danger
that such advocacy will harm the administration of justice.
This rule had its origin in Schenck vs. U.S. (249) U. S. 47), promulgated in 1919, and ever
since it has afforded a practical guidance in a great variety of cases in which the scope of
the constitutional protection of freedom of expression was put in issue.[1] In one of said
cases, the United States Supreme Court has made the significant suggestion that this
rule "is an appropriate guide in determining the constitutionality of restriction upon
expression where the substantial evil sought to be prevented by the restriction is
destruction of life or property or invasion of the right of privacy" Thornhill vs. Alabama,
310 U.S. 88).

Thus, speaking of the extent and scope of the application of this rule, the Supreme Court
of the United States said "Clear and present danger of substantive evils as a result of
indiscriminate publications regarding judicial proceedings justifies an impairment of the
constitutional right of freedom of speech and press only it" the evils are extremely
serious and the degree of imminence extremely high. * " * A public utterance or
publication is not to be denied the constitutional protection of freedom of speech and
press merely because it concerns a judicial proceeding- still pending in the courts, upon
the theory that in such a case it must necessarily tend to obstruct the orderly and fair
administration of justice. * * * The possibility of engendering disrespect for the judiciary
as a result of the published criticism of a judge is not such a substantive evil as will
justify impairment of the constitutional right of freedom of speech and press." (Bridges
vs. California, 314 U.S. 252, syllabi)

No less important is the ruling on the power of the court to punish for contempt in
relation to the freedom of speech and press. We quote; "Freedom of speech and press
should not be impaired through the exercise of the power to punish for contempt of
court unless there is no doubt that the utterances in question are a serious and
imminent threat to the administration of justice. * * * A judge may not hold in contempt
one who ventures to publish anything that tends to make him unpopular or to belittle
him. * * * The vehemence of the language used in newspaper publications concerning a
judge's decision is not alone the measure of the power to punish for contempt. The fires
which it kindles must constitute an imminent, not merely a likely, threat to the
administration of justice." (Craig vs. Harney, 331 U. S. 367, syllabi.)

And in weighing the danger of possible interference with the courts by newspaper
criticism against the right of free speech to determine whether such criticism may
constitutionally be punished as contempt, it was ruled that "freedom of public comment
should in borderline instances weigh heavily against a possible tendency to influence
pending cases."    (Pennekamp vs. Florida, 328 U. S. 331)

The question in every case, according to Justice Holmes, id 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 bring1 about the substantive evils that congress has a right to
prevent. It is a question of proximity and degree (Schenck vs. U.S., supra).

The "dangerous tendency" rule, on the other hand, has been adopted in cases where
extreme difficulty is confronted in determining where the freedom of expression ends
and the right of courts to protect their independence begins. There must be a remedy to
borderline cases and the basic principle of this rule lies in that the freedom of speech
and of the press, as well as the right to petition for redress of grievance, while
guaranteed by the constitution, are not absolute. They are subject to restrictions and
limitations, one of them being the protection of the courts against contempt (Gilbert vs.
Minnesota, 254  U.S. 325.)

This rule may be epitomized as follows: If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are punishable. It is
not necessary that some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to acts of
force, violence, or unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil which the legislative body
seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.)

"It is a fundamental principle, long- established, that the freedom of speech and of the
press which is secured by the Constitution does not confer an absolute right to speak or
publish, without responsibility, whatever one may choose, or an unrestricted and
unbridled license that gives immunity for every possible use  of language, and prevents -
the punishment of those who abuse this freedom, * * * Reasonably limited, it was said
by story in the passage  cited this  freedom is  an  inestimable  privilege  in  a free
government;  without such limitation, it might become the  scourge of the Republic.

* * * * * * * 

"And, for yet more imperative reasons, a state may punish utterances endangering the
foundations of organized government and threatening   its   overthrow   by   unlawful  
means.  These imperil its own existence as a constitutional state. * * *

* * * * * * * 

* * * And the immediate danger is none the less real and substantial because the effect
of a given utterance cannot be accurately foreseen. The state cannot reasonably be
required to measure the danger from every such utterance in the nice balance of a
jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time,
may burst into a sweeping and destructive conflagration. It cannot be said that the state
is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the
measures necessary to protect the public peace and safety, it seeks to extinguish the
spark without waiting until it has enkindled the flame or blazed into the conflagration. It
cannot reasonably be required to defer the adoption of measures for its own peace and
safety until the revolutionary utterances lead to actual disturbances of the public peace
or imminent and immediate danger of its own destruction; but it may, in the exercise of
its judgment, suppress the threatened danger in its incipiency. In People vs.
Lloyd, supra, p. 35 (136 N.E. 505), it was aptly said: 'Manifestly, the legislature has
authority to forbid the advocacy of a doctrine until there is a present and imminent
danger of the success of the plan advocated. If the state were compelled to wait until
the apprehended danger became certain, than its right to protect itself would come into
being' simultaneously with the overthrow of the government, when there would be
neither prosecuting officers nor courts for the enforcement of the law.’ " Gitlow vs. New
York, supra.)

The question then to be determined is: Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC create a danger
sufficiently imminent to come under the two rules mentioned above?

Even if we make a careful analysis of the letter sent by appellant Cabansag to the PCAC
which has given rise to the present contempt proceedings, we would at once see that it
was far from his mind to put the court in ridicule  and much less to belittle or degrade it
in the eyes of those to whom the letter was addressed for, undoubtedly, he was
compelled to act the way he did simply because he saw no other way of obtaining the
early termination of his case. This is clearly inferable from its context wherein, in
respectful and courteous language, Cabansag gave vent to his feeling' when he said that
he "has long since been deprived of his land thru the careful maneuvers of a tactical
lawyer"; that the case which had long been pending ' "could not be decided due to the
fact that the transcript of the records has not, as yet, been transcribed by the
stenographers who took the stenographic notes"; and that the "new Judges could not
proceed to hear the case before the transcription of the said notes." Analyzing said
utterances, one would see that if they ever criticize, the criticism refers, not to the
court, but to opposing counsel whose "tactical maneuvers" has allegedly caused the
undue delay of the case. The grievance or complaint, if any, is addressed to the
stenographers for their apparent indifference in transcribing their notes.

The only disturbing effect of the letter which perhaps has been the motivating factor of
the lodging of the contempt charge by the trial judge is the fact that the letter was sent
to the Office of the President asking for help because of the precarious predicament of
Cabansag. While the course of action he had taken may not be a wise one for it would
have been proper had he addressed his letter to the Secretary of Justice or to the
Supreme Court, such act alone would not be contemptuous. To be so the danger must
cause a serious imminent threat to the administration of justice. Nor can we infer that
such act has "a dangerous tendency" to belittle the court or undermine the
administration of justice for the writer merely exercised his constitutional right to
petition the government for redress of a legitimate grievance.

The fact is that even the trial court itself has at the beginning entertained such
impression when it found that the criticism was directed not against the court but
against the counsel of the opposite party, and that only on second thought did it change
its mind when it developed that the act of Cabansag was prompted by the advice of his
lawyers. Nor can it be contended that the letter is groundless or one motivated by
malice. The circumstances borne by the record which preceded the sending of that
letter show that there was an apparent cause for grievance.

Thus, the record shows that on January 13, 1947, or more than 8 years ago, appellant
Cabansag filed with the lower court a complaint against Geminiana Fernandez, et al.
seeking to eject them from a portion of land covered by a torrens title. On October 4,
1949, or two years thereafter, the court, Judge Villamor presiding, issued an order
requiring the stenographers who took down the notes to transcribe them within 15 days
upon payment of their corresponding fees. On December 9, 1952, or almost 3 years
thereafter, the court, Judge Pasicolan presiding, issued a similar order requiring the
stenographers to transcribe their notes and decreeing that the case be set for hearing
after said notes had been transcribed. No further step was taken from this last date
either by the court or by the opposing parties. Meanwhile, the stenographers were
given assignment elsewhere, and when this matter was brought to the attention of the
court by its own clerk of court, said court in an indorsement sent to the Secretary of
Justice expressed its inability to take action in view of the fact that the stenographers
were no longer under its jurisdiction. And in said indorsement nothing was said about its
readiness to continue with the trial even in the absence of the transcript of the notes.

Under such a state of affairs, appellant Cabansag cannot certainly be blamed for
entertaining the belief that the oneway by which he could obtain redress of his
grievance is to address his letter to the PCAC which after all is the office created by the
late President to receive and hear all complaints against officials and employees of the
government to facilitate which the assistance and cooperation of all the executive
departments were enjoined (Executive ' Order No. 1, as amended by Executive Order
No. 19). And one of the departments that come under the control of the President is the
Department of Justice which under the law has administrative supervision over courts of
first instance. (Section 83, Revised Administrative Code) The PCAC is part of the Office of
the President. It can, therefore, be said that the letter of Cabansag though sent to the
PCAC is intended for the Department of Justice where it properly belongs.
Consequently, the sending of that letter may be considered as one sent to the
Department of Justice and as such cannot constitute undue publication that would place
him beyond the mantle of protection of our constitution.

"* * * under the presidential type of government which we have adopted and
considering the departmental organization established' and continued in force by
paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in
cases where the Chief Executive is required ¦by the Constitution or the law to act in
person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business, are unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive".    (Villena vs. The Secretary of the Interior, 67 Phil., 451, 463.)

We would only add one word in connection with the participation in the incident of
Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino V. Merrera. While the
conduct of Cabansag may be justified considering that, being a layman, he is unaware of
the technical rules of law and procedure which may place him under the protective
mantle of our constitution, such does not obtain with regard to his co-appellants. Being
learned in the law and officers of the court, they should have acted with more care and
circumspection in advising their client to avoid undue embarrassment to the court or
unnecessary interference with the normal course of its proceedings. Their duty as
lawyers is always to observe utmost respect to the court and defend it against unjust
criticism and clamor. Had they observed a more judicious behavior, they would have
avoided the unpleasant incident that had arisen. However, the record is bereft of any
proof showing improper motive on their part, much less bad faith in their actuation. But
they should be warned, as we now do, that a commission of a similar misstep in the
future would render them amenable to a more severe disciplinary action.

Wherefore, the decision appealed from is reversed, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Reyes A., Labrador, Concepcion, Reyes, J.B.L., Endencia,
and Felix, JJ., concur.

Judgment reversed.
[1]
 Schenck vs. U.S. 249 U.S. 47; Abrams us. U.S. 250 U.S. 619, Whitney vs. California, 274
U.S. 357; Herndon vs. Lowry, 301 U.S. 242; Bridges vs. California, 314 U.S. 252;
Pennekamp vs. Florida, 328 U.S. 331; Craig vs. Harney, 67 S. Ct. 1294.

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c. Balancing of interest
c.i.          Ayer vs. Capulong, 160 SCRA 861

243 Phil. 1007

EN BANC

[ G.R. No. 82380, April 29, 1988 ]

AYER PRODUCTIONS PTY. LTD. AND MCELROY & MCELROY FILM PRODUCTIONS,
PETITIONERS, VS. HON. IGNACIO M. CAPULONG AND JUAN PONCE ENRILE,
RESPONDENTS.

[G.R. NO. 82398. APRIL 29, 1988]

HAL MCELROY, PETITIONER, VS. HON. IGNACIO M. CAPULONG, IN HIS CAPACITY AS

PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MAKATI, BRANCH 134 AND
JUAN PONCE ENRILE, RESPONDENTS.

DECISION
FELICIANO, J.:

Petitioner Hal McElroy, an Australian film maker, and his movie production company,
petitioner Ayer Productions Pty. Ltd. ("Ayer Productions"),[1] envisioned, sometime in
1987, the filming for commercial viewing and for Philippine and international release,
the historic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue).
Petitioners discussed this project with local movie producer Lope V. Juban, who
suggested that they consult with the appropriate government agencies and also with
General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in
the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the
Movie Television Review and Classification Board as well as the other government
agencies consulted. General Fidel Ramos also signified his approval of the intended film
production.

In a letter dated 16 December 1987, petitioner Hal McElroy, informed private

respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis
of it, the full text of which is set out below:
"The Four Day Revolution is a six hour mini-series about People Power - a unique event
in modern history - that made possible the peaceful revolution in the Philippines in
1986.

Faced with the task of dramatising these remarkable events, screenwriter David
Williamson and history Prof. Al McCoy have chosen a 'docu-drama' style and created
[four] fictitious characters to trace the revolution from the death of Senator Aquino, to
the February revolution and the fleeing of Marcos from the country.

These characters' stories have been woven through the real events to help our huge
international audience understand this extraordinary period in Filipino history.

First, there's Tony O'Neil, an American television journalist working for a major network.
Tony reflects the average American attitude to the Philippines - once a colony, now the
home of crucially important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no alternative to Marcos
except the Communists.

Next, Angie Fox, a fiery Australian photojournalist. A 'new girl in town', she is quickly
caught up in the events as it becomes clear that the time has come for a change.
Through Angie and her relationship with one of the Reform Army Movement Colonels (a
fictitious character), we follow the developing discontent in the armed forces. Their
dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter and promoter of Cory
Aquino. Ben has two daughters, Celie - a left-wing lawyer who is a secret member of the
New People’s Army, and Eva - a P.R. girl, politically moderate and very much in love with
Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and the intertwining series of events and characters
that triggered these remarkable changes.

Through them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual documentary
footage filmed during the period which we hope will capture the unique atmosphere
and forces that combined to overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit ('Don's Party', 'The Club', 'Travelling North') and 11 feature films ('The Year
of Living Dangerously', Gallipoli', 'Phar Lap'). Professor McCoy (University of New South
Wales) is an American historian with a deep understanding of the Philippines, who has
worked on the research for this project for some 18 months. Together with David
Williamson they have developed a script we believe accurately depicts the complex
issues and events that occurred during the period.

The six hour mini-series is a McElroy and McElroy co-production with Home Box Office
in America, the Australian Broadcasting Corporation in Australia and Zenith Productions
in the United Kingdom."
The proposed motion picture would be essentially a reenactment of the events that
made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series
television play, presented in a "docu-drama" style, creating four (4) fictional characters
interwoven with real events, and utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will
not approve of the use, appropriation, reproduction and/or exhibition of his name, or
picture, or that of any member of his family in any cinema or television production, film
or other medium for advertising or commercial exploitation" and further advised
petitioners that "in the production, airing, showing, distribution or exhibition of said or
similar film, no reference whatsoever (whether written, verbal or visual) should be
made to [him] or any member of his family, much less to any matter purely personal to
them."

It appears that petitioners acceded to this demand and the name of private respondent
Enrile was deleted from the movie script, and petitioners proceeded to film the
projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for

Temporary Restraining Order and Writ of Preliminary Injunction with the Regional Trial
Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to
enjoin petitioners from producing the movie "The Four Day Revolution". The complaint
alleged that petitioners' production of the mini-series without private respondent’s
consent and over his objection, constitutes an obvious violation of his right of privacy.
On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and
set for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy filed a Motion to Dismiss with Opposition to the Petition
for Preliminary Injunction contending that the mini-series film would not involve the
private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction
would amount to a prior restraint on their right of free expression. Petitioner Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the
mini-series had not yet been completed.

In an Order[2] dated 16 March 1988, respondent court issued a writ of Preliminary

Injunction against the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all
persons and entities employed or under contract with them, including actors, actresses
and members of the production staff and crew, as well as all persons and entities acting
on defendants' behalf, to cease and desist from producing and filming the mini-series
entitled "The Four Day Revolution" and from making any reference whatsoever to
plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears remote, substantial or marked resemblance or
similarity to, or is otherwise identifiable with, plaintiff in the production and filming any
similar film or photoplay, until further orders from this Court, upon plaintiff’s filing of a
bond in the amount of P2,000,000.00, to answer for whatever damages defendants may
suffer by reason of the injunction if the Court should finally decide that plaintiff was not
entitled thereto.

xxx xxx xxx."

(Underscoring supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for
Certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or
Restraining Order, which petition was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitioner Hal McElroy also filed a separate Petition
for Certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated
22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private
respondent was required to file a consolidated Answer. Further, in the same Resolution,
the Court granted a limited Temporary Restraining Order partially enjoining the
implementation of the respondent Judge’s Order of 16 March 1988 and the Writ of
Preliminary Injunction issued therein, and allowing the petitioners to resume producing
and filming those portions of the projected mini-series which do not make any reference
to private respondent or his family or to any fictitious character based on or bearing
substantial resemblance or similarity to or identifiable as private respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in
the main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn.
Petitioners' claim that in producing and filming "The Four Day Revolution", they are
exercising their freedom of speech and of expression protected under our Constitution.
Private respondent, upon the other hand, asserts a right of privacy and claims that the
production and filming of the projected mini-series would constitute an unlawful
intrusion into his privacy which he is entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression, the Court
would once more stress that this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in theaters or to diffuse them
through television. In our day and age, motion pictures are a universally utilized vehicle
of communication and medium of expression. Along with the press, radio and television,
motion pictures constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak,[3] former Chief Justice Fernando,
speaking for the Court, explained:
“1. Motion pictures are important both as a medium for the communication of ideas
and the expression of the artistic impulse. Their effects on the perception by our people
of issues and public officials or public figures as well as the prevailing cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [1942]) is the
'importance of motion pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing
line between what involves knowledge and what affords pleasure. If such a distinction
were sustained, there is a diminution of the basic right to free expression. x x x"[4]
This freedom is available in our country both to locally-owned and to foreign-owned
motion picture companies. Furthermore, the circumstance that the production of
motion picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our community
as in many other countries, media facilities are owned either by the government or the
private sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in part to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and
hence to exclude commercially owned and operated media from the exercise of
constitutionally protected freedom of speech and of expression can only result in the
drastic contraction of such constitutional liberties in our country.

The counter-balancing claim of private respondent is to a right of privacy. It was

demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
constitutional and statutory, does include a right of privacy.[5] It is left to caselaw,
however, to mark out the precise scope and content of this right in differing types of
particular situations. The right of privacy or "the right to be let alone",[6] like the right of
free expression, is not an absolute right. A limited intrusion into a person’s privacy has
long been regarded as permissible where that person is a public figure and the
information sought to be elicited from him or to be published about him constitute
matters of a public character.[7] Succinctly put, the right of privacy cannot be invoked to
resist publication and dissemination of matters of public interest.[8] The interest sought
to be protected by the right of privacy is the right to be free from
"unwarranted publicity, from the wrongful publicizing of the private affairs and activities
of an individual which are outside the realm of legitimate public concern".[9]

Lagunzad v. Vda. de Gonzales,[10] on which private respondent relies heavily, recognized

a right to privacy in a context which included a claim to freedom of speech and of
expression. Lagunzad involved a suit for enforcement of a licensing agreement between
a motion picture producer as licensee and the widow and family of the late Moises
Padilla as licensors. This agreement gave the licensee the right to produce a motion
picture portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista
Party for the Municipality of Magallon, Negros Occidental during the November 1951
elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party
then in power and his men were tried and convicted.[11] In affirming the judgment of the
lower court enforcing the licensing agreement against the licensee who had produced
the motion picture and exhibited it but refused to pay the stipulated royalties, the
Court, through Mme. Justice Melencio-Herrera, said:
"Neither do we agree with petitioner's submission that the Licensing Agreement is null
and void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner had purchased the rights to the book entitled 'The Moises Padilla Story,' that
did not dispense with the need for prior consent and authority from the deceased heirs
to portray publicly episodes in said deceased's life and in that of his mother and the
members of his family. As held in Schuyler v. Curtis, ([1895], 147 NY 434, 42 NE, 31 LRA
286, 49 Am St Rep671), 'a privilege may be given the surviving relatives of a deceased
person to protect his memory, but the privilege exists for the benefit of the living, to
protect their feelings and to prevent a violation of their own rights in the character and
memory of the deceased.'
Petitioner's averment that private respondent did not have any property right over the
life of Moises Padilla since the latter was a public figure, is neither well taken. Being a
public figure ipso facto does not automatically destroy in toto a person's right to privacy.
The right to invade a person's privacy to disseminate public information does not extend
to a fictional or novelized representation of a person, no matter how public a figure he
or she may be (Garner v. Triangle Publications, DCNY, 97 F. Supp., 564, 549 [1951]). In the
case at bar, while it is true that petitioner exerted efforts to present a true-to-life story
of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality."[12]

In Lagunzad, the Court had need, as we have in the instant case, to deal with
contraposed claims to freedom of speech and of expression and to privacy. Lagunzad
the licensee in effect claimed, in the name of freedom of speech and expression, a right
to produce a motion picture biography at least partly "fictionalized" of Moises Padilla
without the consent of and without paying pre-agreed royalties to the widow and family
of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as a
citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint. The right of freedom of expression,
indeed, occupies a preferred position in the 'hierarchy of civil liberties' (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:

xxxxxxxxx

The prevailing doctrine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and of the press,
which includes such vehicles of the mass media as radio, television and the movies, is
the 'balancing-of-interests test' (Chief Justice Enrique M. Fernando on the Bill of Rights,
1970 ed., p. 79). The principle 'requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of
situation' (Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission
on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. Taking into
account the interplay of those interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the Licensing Agreement entered
into by petitioner, the validity of such agreement will have to be upheld particularly
because the limits of freedom of expression are reached when expression touches upon
matters of essentially private concern."[13]

Whether the "balancing of interests test" or the "clear and present danger test" be
applied in respect of the instant Petitions, the Court believes that a different conclusion
must here be reached: The production and filming by petitioners of the projected
motion picture "The Four Day Revolution" does not, in the circumstances of this case,
constitute an unlawful intrusion upon private respondent's "right of privacy".

1. It may be observed at the outset that what is involved in the instant case is a
prior and direct restraint on the part of the respondent Judge upon the exercise
of speech and of expression by petitioners. The respondent Judge has restrained
petitioners from filming and producing the entire proposed motion picture. It is
important to note that in Lagunzad, there was no prior restraint of any kind
imposed upon the movie producer who in fact completed and exhibited the film
biography of Moises Padilla. Because of the preferred character of the
constitutional rights of freedom of speech and of expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of
such freedoms.[14] The invalidity of a measure of prior restraint does not, of
course, mean that no subsequent liability may lawfully be imposed upon a person
claiming to exercise such constitutional freedoms. The respondent Judge should
have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order
one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience. Neither
private respondent nor the respondent trial Judge knew what the completed film
would precisely look like. There was, in other words, no "clear and present
danger" of any violation of any right to privacy that private respondent could
lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody
change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the train of events which led up to that dénouement. Clearly,
such subject matter is one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The subject thus relates to a highly
critical stage in the history of this country and as such, must be regarded as
having passed into the public domain and as an appropriate subject for speech
and expression and coverage by any form of mass media. The subject matter, as
set out in the synopsis provided by the petitioners and quoted above, does not
relate to the individual life and certainly not to the private life of private
 respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of
Moises Padilla necessarily including at least his immediate family, what we have
here is not a film biography, more or less fictionalized, of private respondent
Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused
upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to
refer to the role played by Juan Ponce Enrile in the precipitating and the
constituent events of the change of government in February 1986.

3. The extent of the intrusion upon the life of private respondent Juan Ponce Enrile
that would be entailed by the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be
generally described as such intrusion as is reasonably necessary to keep that film
a truthful historical account. Private respondent does not claim that petitioners
threatened to depict in "The Four Day Revolution" any part of the private life of
private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public
concern, that petitioners propose to film were taking place, private respondent
was what Profs. Prosser and Keeton have referred to as a "public figure":

"A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and explorers,
war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than
the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a
position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their right of privacy.
Three reasons were given, more or less indiscriminately, in the decisions: that they had
sought publicity and consented to it, and so could not complain when they received it;
that their personalities and their affairs had already become public, and could no longer
be regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. 'News' includes
all events and items of information which are out of the ordinary humdrum routine, and
which have ‘that indefinable quality of information which arouses public attention.’ To a
very great extent the press, with its experience or instinct as to what its readers will
want, has succeeded in making its own definition of news, as a glance at any morning
newspaper will sufficiently indicate. It includes homicide and other crimes, arrests and
police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly
many other similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited to the dissemination
of news in the sense of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line,
the courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt."[15]
Private respondent is a "public figure" precisely because, inter alia, of his participation
as a principal actor in the culminating events of the change of government in February
1986. Because his participation therein was major in character, a film reenactment of
the peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a “public figure” is
necessarily narrower than that of an ordinary citizen. Private respondent has not retired
into the seclusion of simple private citizenship. He continues to be a “public figure”.
After a successful political campaign during which his participation in the EDSA
Revolution was directly or indirectly referred to in the press, radio and television, he sits
in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the
constitutional freedom of speech and of expression and the right of privacy, may
be marked out in terms of a requirement that the proposed motion picture must
be fairly truthful and historical in its presentation of events. There must, in other
words, be no knowing or reckless disregard of truth in depicting the participation
of private respondent in the EDSA Revolution.[16] There must, further, be no
presentation of the private life of the unwilling private respondent and certainly
no revelation of intimate or embarrassing personal facts.[17] The proposed motion
picture should not enter into what Mme. Justice Melencio-Herrera
in Lagunzad referred to as “matters of essentially private concern”.[18] To the
extent that “The Four Day Revolution” limits itself in portraying the participation
of private respondent in the EDSA Revolution to those events which are directly
and reasonably related to the public facts of the EDSA Revolution, the intrusion
into private respondent’s privacy cannot be regarded as unreasonable and
actionable. Such portrayal may be carried out even without a license from private
respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court
that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo
Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413,
entitled “Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy and McElroy Film
Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures
Production” enjoining him and his production company from further filming any scene
of the projected mini-series film. Petitioner alleged that Honasan’s complaint was a
“scissors and paste” pleading, cut out straight from the complaint of private respondent
Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate
Manifestation dated 4 April 1988, brought to the attention of the Court the same
information given by petitioner Hal McElroy, reiterating that the complaint of Gregorio
B. Honasan was substantially identical to that filed by private respondent herein and
stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated,
deliberately engaged in “forum shopping”.

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the

“slight similarity” between private respondent’s complaint and that of Honasan in the
construction of their legal basis of the right to privacy as a component of the cause of
action is understandable considering that court pleadings are public records; that
private respondent’s cause of action for invasion of privacy is separate and distinct from
that of Honasan’s, although they arose from the same tortious act of petitioners; that
the rule on permissive joinder of parties is not mandatory and that, the cited cases on
“forum shopping” were not in point because the parties here and those in Civil Case No.
88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal
with the question of whether or not the lawyers of private respondent Ponce Enrile
have engaged in “forum shopping”. It is, however, important to dispose of the
complaint filed by former Colonel Honasan who, having refused to subject himself to
the legal processes of the Republic and having become once again a fugitive from
justice, must be deemed to have forfeited any right he might have had to protect his
privacy through court processes.

WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16
March 1988 of respondent trial court granting a Writ of Preliminary Injunction is
hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court
on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the
implementation of respondent Judge’s Order of 16 March 1988 and made
PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as
separate Petitions for Certiorari with Prayer for Preliminary Injunction or
Restraining Order, the Court, in the exercise of its plenary and supervisory
jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of
Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to
SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and
any Preliminary Injunction that may have been issued by him.
No pronouncement as to costs.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, and Griño-Aquino, JJ., concur.
[1]
 On 7 April 1988, petitioners in G.R. No. 82380 asked for deletion of "McElroy and
McElroy Film Productions" as party petitioner stating that it was not a separate
company but merely a corporate tradename used by Ayer Productions. "McElroy and
McElroy Film Productions" will therefore be disregarded in this Decision.

[2]
 Annex "A" of the Petitions.

[3]
 137 SCRA 717 (1985).

[4]
 137 SCRA at 723.

[5]
 "The Constitutional Foundations of Privacy", in Cortes, Emerging Trends in Law, pp. 1-
70 (Univ. of the Philippines Press, 1983). This lecture was originally delivered in 1970.

[6]
 See Cortes, supra Note 5 at 12 et seq. where she traces the history of the
development of privacy as a legal concept.

[7]
 Prosser and Keeton on Torts, 5th ed., pp. 854-863 (1984); and see, e.g., Strykers v.
Republic Producers Corp., 238 P 2d 670 (1952).

[8]
 Nixon v. Administrator of General Services 433 U.S. 425, 53 L. Ed. 2d 867 (1977).

[9]
 Smith v. National Broadcasting Co., 292 P 2d 600 (1956); underscoring supplied.

[10]
 92 SCRA 476 (1979).

[11]
 People v. Lacson, et al., 111 Phil. 1 (1961).

[12]
 92 SCRA 486-487

[13]
 92 SCRA at 488-489; Underscoring supplied.

[14]
 Mutuc v. Commission on Elections, 36 SCRA 228 (1970); New York Times Co. v. United
States 403 U.S. 713, 29 L Ed. 2d 822 (1971); Times Film Corporation v. City of
Chicago 365 U.S. 43, 5 L Ed. 2d 403 (1961); Near v. Minnesota 283 U.S. 67, 75 L Ed. 1357
(1931).

[15]
 Prosser and Keeton on Torts, 5th ed. at 859-861 (1984); underscoring supplied.

[16]
 Time Inc. v. Hill 385 U.S. 374, 17 L. Ed. 2d 456 (1967); New York Times Co. v.
Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 (1964); and Cox Broadcasting Corp. v. Cohn 420
U.S. 469, 43 L. Ed. 2d 328 (1975).

[17]
 See Sidis v. F-R Publishing Corp. 113 F. 2d 806 (2d Cir. 1940) cert. denied 311 U.S. 711,
85 L. Ed. 462.

[18]
 92 SCRA at 489.
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4.  “Facial challenge” and “overbreadth” doctrine

a.  David vs. Arroyo, supra.

522 Phil. 705

EN BANC

[ G.R. NO. 171396, May 03, 2006 ]

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L.

ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, PETITIONERS, VS. GLORIA
MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, RESPONDENTS.

G.R. NO. 171409

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., PETITIONERS, VS.

HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, RESPONDENTS.
 G.R. NO. 171485

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO

A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,
ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN,
NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, PETITIONERS, VS. EDUARDO R. ERMITA,
EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, RESPONDENTS.

G.R. NO. 171483

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, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, PETITIONERS, VS. HER
EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, RESPONDENTS.

G.R. NO. 171400

ALTERNATIVE LAW GROUPS, INC. (ALG), PETITIONER, VS. EXECUTIVE SECRETARY

EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, RESPONDENTS.

G.R. NO. 171489

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), PETITIONERS, VS. HON. EXECUTIVE SECRETARY EDUARDO
ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF,
RESPONDENTS.

G.R. NO. 171424

LOREN B. LEGARDA, PETITIONER, VS. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY

AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA,
IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES
 (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY,
RESPONDENTS.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are
necessary.[1] Superior strength - the use of force - cannot make wrongs into rights. In this
regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He

said: "In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak." Laws and actions that restrict fundamental rights come to
the courts "with a heavy presumption against their constitutional validity."[2]

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to
defend and preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such issuances are void
for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without
which,  law  becomes tyranny, with the degree of law, without which, liberty becomes
license?[3]

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the

Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of
the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which
states that: "The President. . . whenever it becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists - the historical enemies of the
democratic Philippine State - who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State - by obstructing

governance including hindering the growth of the economy and sabotaging the
people's confidence in government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;

WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists - the historical enemies of the
democratic Philippine State - and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;

WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing

governance, including hindering the growth of the economy and sabotaging the
people's confidence in the government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic
Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation
of the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State
of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in

me under the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation
No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She
issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state
of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated
that the proximate cause behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New People's Army (NPA), and some
members of the political opposition in a plot to unseat or assassinate President Arroyo.
[4]
 They considered the aim to oust or assassinate the President and take-over the reigns
of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners' counsels.

The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners has shown that PP 1017 was
without factual bases. While he explained that it is not respondents' task to state the
facts behind the questioned Proclamation, however, they are presenting the same,
narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in
the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a
public statement, they vowed to remain defiant and to elude arrest at all costs. They
called upon the people to "show and proclaim our displeasure at the sham regime. Let
us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." [5]

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle
I" which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo herself.[6] Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day,
at the height of the celebration, a bomb was found and detonated at the PMA parade
ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes
of the meetings between members of the Magdalo Group and the National People's
Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of
subversive documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that
the "Magdalo's D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members
of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered
SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are under the effective
control of responsible and trustworthy officers with proven integrity and unquestionable
loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquino's brother, businessmen and mid-level government officials plotted moves
to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported
that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his
group's plans if President Arroyo is ousted. Saycon also phoned a man code-named
Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army's elite Scout
Ranger. Lim said "it was all systems go for the planned movement against Arroyo." [8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because
they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to
the chain of command. He immediately took custody of B/Gen. Lim and directed Col.
Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members
and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look forward to the possibility
in the coming year of accomplishing its immediate task of bringing down the Arroyo
regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it."[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF)
at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the President's ouster is
nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests.[10]

By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and ensure
that the chain of command remains solid and undivided. To protect the young students
from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017
and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the President's mind were
organized for purposes of destabilization, are cancelled. Presidential Chief of Staff
Michael Defensor announced that "warrantless arrests and take-over of facilities,
including media, can already be implemented."[11]

Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally held along
Ayala Avenue and Paseo de Roxas Street in Makati City.[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O.
No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news
stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building.[13]

A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a
'strong presence,' to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the
state of national emergency." Director General Lomibao stated that "if they do not
follow the standards - and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 - we will recommend a 'takeover.'" National Telecommunications'
Commissioner Ronald Solis urged television and radio networks to "cooperate"  with the
government for the duration of the state of national emergency. He asked for "balanced
reporting" from broadcasters when covering the events surrounding the coup attempt
foiled by the government. He warned that his agency will not hesitate to recommend
the closure of any broadcast outfit that violates rules set out for media coverage when
the national security is threatened.[14]

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltran's lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative

Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the
PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the "Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to
avoid the constitutional requirements for the imposition of martial law; and (3) it
violates the constitutional guarantees of freedom of the press, of speech and of
assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.

challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely
no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative
powers"; "violation of freedom of expression"  and "a declaration of martial law." They
alleged that President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and
a showing that there is necessity to do so."

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance was without factual
basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017
and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b)
Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section
17[20] of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
"it amounts to an exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and
G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution." In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.

In respondents' Consolidated Comment, the Solicitor General countered that: first, the

petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people's right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have
legal standing.

B. SUBSTANTIVE:

1) Whether the Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept
of judicial review enunciated in Marbury v. Madison.[21] This concept rests on the
extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source
of all political authority. It confers limited powers on the national government. x x x If
the government consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise. This is the beginning
and the end of the theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a "self-starting
capacity."[23] Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to
raise a question of constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.[24]

Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations
of parties having adverse legal interest;" a real and substantial controversy admitting of
specific relief.[25] The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered "moot and academic"
by President Arroyo's issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,[26] so that a declaration thereon would be of no practical
use or value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on
ground of mootness.[29]

The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative."[30]

The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution;[31] second, the
exceptional character of the situation and the paramount public interest is involved;
[32]
 third, when constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public;[33] and fourth, the case is capable of
repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Court's assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the public's interest, involving as they do the people's basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty
to formulate guiding and controlling constitutional precepts, doctrines or rules. It has
the symbolic function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.[35] And lastly, respondents' contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary.
[36]
 However, they failed to take into account the Chief Justice's very statement that an
otherwise "moot" case may still be decided "provided the party raising it in a proper
case has been and/or continues to be prejudiced or damaged as a direct result of its
issuance." The present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.

II-Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given

question."[37] In private suits, standing is governed by the "real-parties-in interest" rule
as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the party who stands to
be benefited or injured by the judgment in the suit or the party entitled to the avails
of the suit."[38] Succinctly put, the plaintiff's standing is based on his own right to the
relief sought.

The difficulty of determining locus standi  arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or "taxpayer." In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was
held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins:[40] "In matter of mere public
right, however...the people are the real parties...It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to taxpayer's
suits, Terr v. Jordan[41] held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be
denied."

However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,[42] later reaffirmed
in Tileston v. Ullman.[43] The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,[44] it held
that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury
as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate,[45] Manila Race Horse Trainers' Association v. De la Fuente,
[46]
 Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v.
Felix.[48]

However, being a mere procedural technicality, the requirement of locus standi may be

waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,[49] where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was neither
a rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the
issues raised due to the "far-reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.[51]

Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of

the constitutional right to information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the petitioner with locus
standi;

(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the
exercise of Congress' taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,[55] that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.

By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court's attitude toward
legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a

people's organization does not give it the requisite personality to question the validity of
the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public
funds are being misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the

Court reiterated the "direct injury" test with respect to concerned citizens' cases
involving constitutional issues. It held that "there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal
official act."

In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng

Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's
declaration of a state of rebellion is a usurpation of the emergency powers of Congress,
thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of
standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is

beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest"
and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so,
the Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,
[60]
 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,
[61]
 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,[62] Basco v. Philippine Amusement and Gaming Corporation,[63] and Tañada v.
Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner
is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their members.[65] We take judicial
notice of the announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of PP 1017 and G.O.
No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,[66] the Court held that the mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that
she is a former Senator is of no consequence. She can no longer sue as a legislator on
the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid her because
there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before
the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently
shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the
standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP
No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the

doctrine that the President, during his tenure of office or actual incumbency,[67] may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance
or distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the
people[68] but he may be removed from office only in the mode provided by law and that
is by impeachment.[69]
B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President's exercise
of his Commander-in-Chief power has reached its distilled point - from the indulgent
days of Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era
of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-
war always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government."[75] Barcelon and Montenegro were in
unison in declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional sufficiency. From
the principle of separation of powers, it shifted the focus to the system of checks and
balances, "under which the President is supreme, x x x only if  and when he acts within
the sphere allotted to him by the Basic Law, and the authority to determine whether
or not he has so acted is vested in the Judicial Department, which in this respect, is, in
turn, constitutionally supreme."[76] In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.[77] There, the Court was almost evenly divided on the issue of
whether the validity of the imposition of Martial Law is a political or justiciable question.
[78]
 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that
there is a need to re-examine the latter case, ratiocinating that "in times of war or
national emergency, the President must be given absolute control for the very life of
the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God."[79]

The Integrated Bar of the Philippines v. Zamora [80] -- a recent case most pertinent to
these cases at bar -- echoed a principle similar to Lansang. While the Court considered
the President's "calling-out" power as a discretionary power solely vested in his wisdom,
it stressed that "this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion." This ruling is mainly a result of the
Court's reliance on Section 1, Article VIII of 1987 Constitution which fortifies the
authority of the courts to determine in an appropriate action the validity of the acts of
the political departments. Under the new definition of judicial power, the courts are
authorized not only "to settle actual controversies involving rights which are legally
demandable and enforceable," but also "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what
was before a forbidden territory, to wit, the discretion of the political departments of
the government.[81] It speaks of judicial prerogative not only in terms of power but also
of duty.[82]

As to how the Court may inquire into the President's exercise of

power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy
the Court not that the President's decision is correct," but that "the President did not
act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness.
[83]
 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent
upon the petitioner to show that the President's decision is totally bereft of factual
basis" and that if he fails, by way of proof, to support his assertion, then "this Court
cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo's exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's
Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of
the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines,
and the reproving statements from the communist leaders. There was also the Minutes
of the Intelligence Report and Security Group of the Philippine Army showing the
growing alliance between the NPA and the military. Petitioners presented nothing to
refute such events. Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to
the nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion for the public
good, without the proscription of the law and sometimes even against it."[84] But Locke
recognized that this moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative and how may its
abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people
have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State...

It is wrong therefore to wish to make political institutions as strong as to render it

impossible to suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the people's first intention is that the
State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy"
as he termed it. For him, it would more likely be cheapened by "indiscreet use." He was
unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office
of prescribed duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: "I am far
from condemning, in cases of extreme necessity, the assumption of absolute power in
the form of a temporary dictatorship."[88]

Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative.
He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra-

constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they will
in a little while be disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it.[89]

Machiavelli - in contrast to Locke, Rosseau and Mill - sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw "no reason why absolutism should not be
used as a means for the defense of liberal institutions," provided it "serves to protect
established institutions from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of political
life."[92] He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing administrative powers
of the executive, while at the same time "imposing limitation upon that
power."[93] Watkins placed his real faith in a scheme of constitutional dictatorship. These
are the conditions of success of such a dictatorship: "The period of dictatorship must be
relatively short...Dictatorship should always be strictly legitimate in character...Final
authority to determine the need for dictatorship in any given case must never rest
with the dictator himself..."[94] and the objective of such an emergency dictatorship
should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] "It is a problem
of concentrating power - in a government where power has consciously been divided -
to cope with... situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end."[96] Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means - i.e., he must be legitimate; he
should not enjoy power to determine the existence of an emergency; emergency
powers should be exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order."[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers
in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency.[98] Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order...

2) ...the decision to institute a constitutional dictatorship should never be in the hands

of the man or men who will constitute the dictator...

3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination...

4) ...all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements...

5) ... no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular
crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should

never be permanent in character or effect...

7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute

one should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted...

11) ...the termination of the crisis must be followed by a complete return as possible to

the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship...[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring
the existence or termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees.[100]

Scott  and Cotter, in analyzing the above contemporary theories in light of recent

experience, were one in saying that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation
is not based upon sound constitutional theory." To appraise emergency power in terms
of constitutional dictatorship serves merely to distort the problem and hinder realistic
analysis. It matters not whether the term "dictator" is used in its normal sense (as
applied to authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional dictatorship" cannot
be divorced from the implication of suspension of the processes of constitutionalism.
Thus, they favored instead the "concept of constitutionalism" articulated by Charles H.
McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of

emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility. McIlwain
clearly recognized the need to repose adequate power in government. And in discussing
the meaning of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling of government
by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have
consisted not in the weakening of government but, but rather in the limiting of it;
between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain
meant government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the above political
theorists - from Lock's "theory of prerogative," to Watkins' doctrine of "constitutional
dictatorship" and, eventually, to McIlwain's "principle of constitutionalism" --- ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that such powers
will be exercised with a sense of political responsibility and under effective limitations
and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice Jackson's
"balanced power structure."[102] Executive, legislative, and judicial powers are dispersed
to the President, the Congress, and the Supreme Court, respectively. Each is supreme
within its own sphere. But none has the monopoly of power in times of emergency.
Each branch is given a role to serve as limitation or check upon the other. This system
does not weaken the President, it just limits his power, using the language of McIlwain.
In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive
but, at the same time, it obliges him to operate within carefully prescribed procedural
limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They
claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing
"on their faces" statutes in free speech cases, also known under the American Law as
First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawless violence. In United States v. Salerno,[104] the US Supreme Court held
that "we have not recognized an "overbreadth' doctrine outside the limited context of
the First Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,[105] it was held:

It remains a 'matter of no little difficulty' to determine when a law may properly be held
void on its face and when 'such summary action' is inappropriate. But the plain import
of our cases is, at the very least, that facial overbreadth adjudication is an exception
to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction
moves from 'pure speech' toward conduct and that conduct -even if expressive - falls
within the scope of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally unprotected
conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only "spoken words" and again, that "overbreadth claims,
if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct."[106] Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be

used "sparingly and only as a last resort," and is "generally disfavored;"[107] The reason
for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court.[108] A writer
and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law's "very existence may cause others
not before the court to refrain from constitutionally protected speech or expression."
An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,[109] it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily guess at
its meaning and differ as to its application."[110] It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII ... do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency."

First Provision: Calling-out Power

The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article
VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From

the most to the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only
criterion for the exercise of the calling-out power is that "whenever it becomes
necessary," the President may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office's vast intelligence network, she is in the
best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the President's calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.

It is pertinent to state, however, that there is a distinction between the President's

authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyo's authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:

SEC. 4. - Proclamations. - Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.

President Arroyo's declaration of a "state of rebellion" was merely an act declaring a

status or condition of public moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the State's extraordinary power to take over privately-owned public utility
and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of

Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order and
the enforcement of law."[113]

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the government.
It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyo's calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,[115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an oath or affirmation to
the effect that as President of the Philippines, he will, among others, "execute its
laws."[116] In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,[117] including the Philippine National Police[118] under the Department of Interior
and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,

Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally or upon my
direction."

Petitioners' contention is understandable. A reading of PP 1017 operative clause shows

that it was lifted[120] from Former President Marcos' Proclamation No. 1081, which partly
reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of

the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution,
do hereby place the entire Philippines as defined in Article 1, Section 1 of the
Constitution under martial law and, in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: "to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction." Upon the other
hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. --- Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. --- Acts of the President which relate to particular aspect
of governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders.

Sec. 4. Proclamations. --- Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.

Sec. 5. Memorandum Orders. --- Acts of the President on matters of administrative

detail or of subordinate or temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. --- Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of
the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. --- Acts and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general
or special orders.

President Arroyo's ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that
"[t]he legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives." To be sure, neither Martial Law
nor a state of rebellion nor a state of emergency can justify President Arroyo's exercise
of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect to
"laws," she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all the
laws and to all decrees x x x" but also to act pursuant to the provision of Section 17,
Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately-owned public utility or business
affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she
issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business
affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial
law" thinking of the 1971 Constitutional Convention.[122] In effect at the time of its
approval was President Marcos' Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control
and operation of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the
present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that

President Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on
the legislature's emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President's authority to declare "a state of

national emergency" and to exercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a
state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only
to war but also to "other national emergency." If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it
to Congress (like the declaration of the existence of a state of war), then the Framers
could have provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a "state of national emergency." The logical
conclusion then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public
utility or business affected with public interest, is a different matter. This requires a
delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in
the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read
together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor

of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President, subject to certain
conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by

Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause.
The taking over of private business affected with public interest is just another facet of
the emergency powers generally reposed upon Congress. Thus, when Section 17 states
that the "the State may, during the emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such power is dependent on
whether Congress may delegate it to him pursuant to a law prescribing the reasonable
terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order he did, it must be found
in some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The executive Power shall be
vested in a President . . . .;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the
United States.

The order cannot properly be sustained as an exercise of the President's military power
as Commander-in-Chief of the Armed Forces. The Government attempts to do so by
citing a number of cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not concern us here. Even
though "theater of war" be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation's lawmakers, not for its
military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he
is to be a lawmaker. The Constitution limits his functions in the lawmaking process to
the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And
the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ."[126]
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17,
Article XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is
a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly

intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety, and
perception.[127] Emergencies, as perceived by legislature or executive in the United Sates
since 1933, have been occasioned by a wide range of situations, classifiable under three
(3) principal heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130]

"Emergency," as contemplated in our Constitution, is of the same breadth. It may

include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.[131] This is evident in the Records
of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee's definition of "national emergency" which
appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.[132]

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which

extraordinary measures are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under this framework
of government, legislation is preserved for Congress all the time, not excepting periods
of crisis no matter how serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another department - unless we
regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme perils more than in normal
circumstances "the various branches, executive, legislative, and judicial,' given the
ability to act, are called upon "to perform the duties and discharge the responsibilities
committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest that should
be taken over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an emergency powers
act passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of expression, of the press, and
of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed

that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant"
their office. Three policemen were assigned to guard their office as a possible "source of
destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these
illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused[135] and may afford an opportunity for abuse in the
manner of application.[136] The validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.[137] PP 1017 is merely an invocation of the President's calling-
out power. Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which prompted
President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or violate the citizens'
constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.[138] This is
logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If
this were so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as Commander-
in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficient
administration of law. Such rules and regulations create no relation except between the
official who issues them and the official who receives them.[139] They are based on and
are the product of, a relationship in which power is their source, and obedience, their
object.[140] For these reasons, one requirement for these rules to be valid is that they
must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of

terrorism" confronts not only our country, but the international community as well. The
following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.

The basic problem underlying all these military actions - or threats of the use of force as
the most recent by the United States against Iraq - consists in the absence of an agreed
definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence

either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the use
of the term "terrorism" may further be demonstrated by the historical fact that leaders
of national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but
later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts - the differentia

specifica distinguishing those acts from eventually legitimate acts of national resistance
or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain
to reach a consensus on the basic issue of definition. The organization has intensified its
efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) - which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims - the Kashmiri resistance groups - who are terrorists
in the perception of India, liberation fighters in that of Pakistan - the earlier Contras in
Nicaragua - freedom fighters for the United States, terrorists for the Socialist camp - or,
most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West,
nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way - because of opposing political interests that are at the roots of
those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis, the
basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism
will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of
a certain ethnic group outside its territory and will therefore speak of a "liberation
struggle," not of "terrorism" when acts of violence by this group are concerned, and
vice-versa.
The United Nations Organization has been unable to reach a decision on the definition
of terrorism exactly because of these conflicting interests of sovereign states that
determine in each and every instance how a particular armed movement (i.e. a non-
state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of
double standards" on this vital issue of international affairs has been the unavoidable
consequence.

This "definitional predicament" of an organization consisting of sovereign states - and

not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! -
has become even more serious in the present global power constellation: one
superpower exercises the decisive role in the Security Council, former great powers of
the Cold War era as well as medium powers are increasingly being marginalized; and the
problem has become even more acute since the terrorist attacks of 11 September 2001 I
the United States.[141]

The absence of a law defining "acts of terrorism" may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may consider the act as an act
of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is
abuse and oppression on their part. It must be remembered that an act can only be
considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime.
This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing
The Penalties for Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any other person
for the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All these can
be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of
the President. Certainly, they violate the due process clause of the Constitution. Thus,
this Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the Order. Otherwise, such acts
are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons or
things to be seized."[142] The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. Thus, the fundamental protection given by
this provision is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first,

he was arrested without warrant; second, the PNP operatives arrested him on the basis
of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh,
he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and

x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David's
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and their erroneous assumption that petitioner David was the leader of the rally.
[146]
 Consequently, the Inquest Prosecutor ordered his immediate release on the ground
of insufficiency of evidence. He noted that petitioner David was not wearing the subject
t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is insufficient evidence for the charge
of violation of BP 880 as it was not even known whether petitioner David was the
leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only was their
right against warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

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.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation
in respect to public affairs. It is a necessary consequence of our republican institution
and complements the right of speech. As in the case of freedom of expression, this right
is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers' conduct. In De Jonge v.
Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question, if
the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was 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. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of prosecuting them for
such offenses, seizes upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacañang's directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation
of all permits to rally is a blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to prevent."[149] Tolerance is the
rule and limitation is the exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizens' right to exercise it.
Indeed, respondents failed to show or convince the Court that the rallyists committed
acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of
their permits.[150] The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a person's right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech
i.e., the freedom of the press. Petitioners' narration of facts, which the Solicitor General
failed to refute, established the following: first, the Daily Tribune's offices were searched
without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o' clock in the morning of
February 25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was "meant to show a
"strong presence,' to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government." Director General Lomibao further stated
that "if they do not follow the standards -and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 - we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged television and radio networks to
"cooperate" with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media coverage during times when
the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the
steps in the conduct of search and seizure. Section 4 requires that a search warrant be
issued upon probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality. And Section
9 states that the warrant must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. All these
rules were violated by the CIDG operatives.

Not only that, the search violated petitioners' freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff[152] this Court held that --

As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be
denied that the CIDG operatives exceeded their enforcement duties. The search and
seizure of materials for publication, the stationing of policemen in the vicinity of the The
Daily Tribune offices, and the arrogant warning of government officials to media, are
plain censorship. It is that officious functionary of the repressive government who tells
the citizen that he may speak only if allowed to do so, and no more and no less than
what he is permitted to say on pain of punishment should he be so rash as to disobey.
[153]
 Undoubtedly, the The Daily Tribune  was subjected to these arbitrary intrusions
because of its anti-government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative
democracy. It is the duty of the courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. The motto should always
be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune's offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose.[155]

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is
to get those past issues. So why do you have to go there at 1 o'clock in the morning and
without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is
not based on Proclamation 1017.

SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily Tribune
or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature to say
this, we do not condone this. If the people who have been injured by this would want
to sue them, they can sue and there are remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to
the Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame
the President for, as you said, a misapplication of the law. These are acts of the police
officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied according
to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited
to the calling out by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O.
No. 5, the military and the police committed acts which violate the citizens' rights under
the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached
hereto, is considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 - a supervening event -
would have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof. Besides,
there is no guarantee that PP 1017, or one similar to it, may not again be issued.
Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be "evaded;" they must now be
resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call
by the President for the AFP to prevent or suppress lawless violence. The proclamation
is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017's extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience
to all laws even those not related to lawless violence as well as decrees promulgated by
the President; and (3) to impose standards on media or any form of prior restraint on
the press, are ultra vires and unconstitutional. The Court also rules that under Section
17, Article XII of the Constitution, the President, in the absence of a legislation, cannot
take over privately-owned public utility and private business affected with public
interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President -
acting as Commander-in-Chief - addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard - that the military
and the police should take only the "necessary and appropriate actions and measures
to suppress and prevent acts of lawless violence." But the words "acts of terrorism"
found in G.O. No. 5 have not been legally defined and made punishable by Congress and
should thus be deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFP's authority in carrying out this
portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas;
(2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of some
articles for publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of
civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to protect
the Republic without unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state. During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be arbitrary as to
unduly restrain our people's liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority
to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo
on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the
provision in PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public interest
without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the
PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence." Considering that "acts
of terrorism" have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

Panganiban, C. J., please see concurring opinion.

Quisumbing, Austria-Martinez, Azcuna, Chico-Nazario, and Garcia, JJ., concur.
Puno, J., on leave.
Ynares-Santiago, J., please see concurring opinion.
Carpio,  Carpio-Morales, and  Callejo, Sr., JJ.,  join dissenting opinion of C. J. Panganiban.
Tinga, J., please see dissenting opinion.
Corona,  and Velasco, Jr., JJ., join dissenting opinion of J. Tinga.

[1]
  Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark - Lecturer,
Volume XIX, 1971, p. 29.

[2]
 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.

[3]
 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480
B.C., who propounded universal impermanence and that all things, notably opposites
are interrelated.

[4] 
Respondents' Comment dated March 6, 2006.

[5] 
Ibid.

[6]
  Ibid.

[7]
 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex "I" of
Respondents' Consolidated Comment.

[8] 
Respondents' Consolidated Comment.

[9]
 Ibid.

[10] 
Ibid.

[11] 
Petition in G.R. No. 171396, p. 5.

[12] 
Police action in various parts of Metro Manila and the reactions of the huge crowds
being dispersed were broadcast as "breaking news" by the major television stations of
this country.

[13] 
Petition in G.R. No. 171400, p. 11.

[14] 
Ibid.

[15]
 The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.

[16] 
No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.

[17] 
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

[18] 
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.

[19]
 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

[20] 
In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business affected
with public interest.

[21] 
1 Cranch 137 [1803].

[22] 
Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on the
Constitution of the United States (Boston: Boston University Heffernan Press, 1939), pp.
376-77.

[23] 
The Court has no self-starting capacity and must await the action of some litigant so
aggrieved as to have a justiciable case. (Shapiro and Tresolini, American Constitutional
Law, Sixth Edition, 1983, p. 79).

[24]
 Cruz, Philippine Political Law, 2002 Ed., p. 259.

[25]
  Ibid.

[26]
  Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[27]
  Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10,
2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004,
426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415
SCRA 590.

[28]
  Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26,
2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.

[29] 
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

[30] 
Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.

[31] 
Province of Batangas v. Romulo, supra.

[32]
  Lacson v. Perez, supra.

[33]
  Province of Batangas v. Romulo, supra.

[34]
  Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA
98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v.
Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[35]
  Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

[36]
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[37]
 Black's Law Dictionary, 6th Ed. 1991, p. 941.

[38]
  Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
[39] 
275 Ky 91, 120 SW2d 765 (1938).

[40] 
19 Wend. 56 (1837).

[41] 
232 NC 48, 59 SE2d 359 (1950).

[42] 
302 U.S. 633.

[43] 
318 U.S. 446.

[44] 
65 Phil. 56 (1937).

[45]
 G.R. No. 117, November 7, 1945 (Unreported).

[46] 
G.R. No. 2947, January 11, 1959 (Unreported).

[47] 
110 Phil. 331 (1960).

[48]
 77 Phil. 1012 (1947).

[49] 
84 Phil. 368 (1949) The Court held: "Above all, 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."

[50]
 L-No. 40004, January 31, 1975, 62 SCRA 275.

[51] 
Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held
that where the question is one of public duty and the enforcement of a public right, the
people are the real party in interest, and it is sufficient that the petitioner is a citizen
interested in the execution of the law;

Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530,
where the Court held that in cases involving an assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen and part of the general public which possesses the right.

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311,

June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers' lack of
personality to sue may be disregarded in determining the validity of the VAT law;

Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held
that while no expenditure of public funds was involved under the questioned contract,
nonetheless considering its important role in the economic development of the country
and the magnitude of the financial consideration involved, public interest was definitely
involved and this clothed petitioner with the legal personality under the disclosure
provision of the Constitution to question it.

Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,

G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while
petitioners are strictly speaking, not covered by the definition of a "proper party,"
nonetheless, it has the discretion to waive the requirement, in determining the validity
of the implementation of the CARP.

Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where
the Court held that it enjoys the open discretion to entertain taxpayer's suit or not and
that a member of the Senate has the requisite personality to bring a suit where a
constitutional issue is raised.

Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court
held that petitioner as a taxpayer, has the personality to file the instant petition, as the
issues involved, pertains to illegal expenditure of public money;

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA
750, where the Court held that where serious constitutional questions are involved, the
"transcendental importance" to the public of the cases involved demands that they be
settled promptly and definitely, brushing aside technicalities of procedures;

De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held
that the importance of the issues involved concerning as it does the political exercise of
qualified voters affected by the apportionment, necessitates the brushing aside of the
procedural requirement of locus standi.

[52] 
G.R. No. 133250, July 9, 2002, 384 SCRA 152.

[53]
 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA
449.

[54] 
G.R. No. 151445, April 11, 2002, 380 SCRA 739.

[55]
  Supra.

[56]
 G.R. No. 118910, November 16, 1995, 250 SCRA 130.

[57]
 G.R. No. 132922, April 21, 1998, 289 SCRA 337.

[58]
 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
[59]
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

[60]
 235 SCRA 506 (1994).

[61]
  Supra.

[62]
  Supra.

[63]
 197 SCRA 52, 60 (1991).

[64] 
Supra.

[65] 
See  NAACP v. Alabama, 357 U.S. 449 (1958).

[66]
 G.R. No. 141284, August 15, 2000, 338 SCRA 81.

[67] 
From the deliberations of the Constitutional Commission, the intent of the framers is
clear that the immunity of the President from suit is concurrent only with his tenure and
not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).

[68]
 Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public
officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice,
and lead modest lives.

[69] 
Ibid., Sec. 2.

[70]
 No. 2908, September 30, 2005, 471 SCRA 87.

[71] 
91 Phil. 882 (1952).

[72] 
No. L-33964, December 11, 1971, 42 SCRA 448.

[73]
 No. L-35546, September 17, 1974, 59 SCRA 183.

[74] 
No. L-61388, April 20, 1983, 121 SCRA 472.

[75] 
Tañada v. Cuenco, 103 Phil. 1051 (1957).

[76]
  Lansang v. Garcia, supra, pp. 473 and 481.

[77]
 Supra.
[78]
 "Five Justices - Antonio, Makasiar, Esguerra, Fernandez, and Aquino - took the
position that the proclamation of martial law and the arrest and detention orders
accompanying the proclamation posed a "political question" beyond the jurisdiction of
the Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernandez,
and Aquino, argued that the Constitution had deliberately set up a strong presidency
and had concentrated powers in times of emergency in the hands of the President and
had given him broad authority and discretion which the Court was bound to respect. He
made reference to the decision in Lansang v. Garcia but read it as in effect upholding
the "political question" position. Fernandez, in a separate opinion, also argued Lansang,
even understood as giving a narrow scope of review authority to the Court, affirmed the
impossible task of "checking' the action taken by the President. Hence, he advocated a
return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment
of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muñoz-
Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated
in Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted
for the view that "political questions are not per se beyond the Court's jurisdiction ... but
that as a matter of policy implicit in the Constitution itself the Court should abstain from
interfering with the Executive's Proclamation." (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 1996 Edition, p. 794.)

[79]
 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.

[80]
  Supra.

[81] 
Cruz, Philippine Political Law, 2002 Ed., p. 247.

[82]
  Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

[83]
  Supra, 481-482.

[84] 
Smith and Cotter, Powers of the President during Crises, 1972, p. 6.

[85] 
Ibid.

[86]
  The Social Contract (New York: Dutton, 1950), pp. 123-124.

[87]
 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.

[88]
  Representative Government, New York, Dutton, 1950, pp. 274, 277-78.

[89]
  The Discourses, Bk. 1, Ch. XXXIV.
[90] 
Smith and Cotter, Powers of the President During Crises, 1972. p. 8.

[91]
  Ibid.

[92]
 See The Problem of Constitutional Dictatorship, p. 328.

[93]
  Ibid., p. 353.

[94]
 Ibid., pp. 338-341.

[95] 
Smith and Cotter, Powers of the President During Crises, 1972, p. 9.

[96]
  Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co.,
1949, p. 580.

[97]
  Ibid, pp. 574-584.

[98]
  Smith and Cotter, Powers of the President During Crises, 1972, p. 10.

[99]
  Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp.
298-306.

[100] 
Smith and Cotter, Powers of the President During Crises, 1972, p. 11.

[101]
 Smith and Cotter, Powers of the President During Crises, 1972, p. 12.

[102]
 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed.
1153 (1952), See Concurring Opinion J. Jackson.

[103] 
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No.
148560, November 19, 2001, 369 SCRA 393.

[104]
 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

[105]
 Supra.

[106]
 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.

[107]
  Broadrick v. Oklahoma, 413 U.S. 601 (1973).

[108]
 Ibid.

[109] 
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4
L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106
L.Ed.2d 388 (1989).

[110]
  Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693,
July 31, 1967, 20 SCRA 849 (1967).

[111]
 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained
President Arroyo's declaration of a "state of rebellion" pursuant to her calling-out
power.

[112]
  Supra.

[113]
  Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929,
quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].

[114]
 Retired Associate Justice of the Supreme Court.

[115]
 Section 1, Article VII of the Constitution.

[116]
 Section 5, Article VII of the Constitution.

[117]
 Section 18, Article VII of the Constitution.

[118]
 Section 6, Article XVI of the Constitution.

[119]
 See Republic Act No. 6975.

[120] 
Ironically, even the 7th Whereas Clause of PP 1017 which states that "Article 2,
Section 4 of our Constitution  makes the defense and preservation of the democratic
institutions and the State  the primary duty of Government" replicates more closely
Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987
Constitution which provides that, "[t[he prime duty of the Government is to serve and
protect the people."

[121]
 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry
of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v.
Commission on Election, supra.

[122]
 Section 17, Article XIV of the 1973 Constitution reads: "In times of national
emergency when the public interest so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected with
public interest."
[123] 
Antieau, Constitutional Construction, 1982, p.21.

[124]
 Cruz, Philippine Political Law, 1998, p. 94.

[125]
 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).

[126]
  Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.

[127]
 Smith and Cotter, Powers of the President During Crises, 1972, p. 14

[128] 
The Federal Emergency Relief Act of 1933 opened with a declaration that
the economic depression created a serious emergency, due to wide-spread
unemployment and the inadequacy of State and local relief funds, . . . making it
imperative that the Federal Government cooperate more effectively with the several
States and Territories and the District of Columbia in furnishing relief to their needy and
distressed people. President Roosevelt in declaring a bank holiday a few days after
taking office in 1933 proclaimed that "heavy and unwarranted withdrawals of gold and
currency from - banking institutions for the purpose of hoarding; ... resulting in "sever
drains on the Nation's stocks of gold - have created a national emergency," requiring his
action. Enacted within months after Japan's attack on Pearl Harbor, the Emergency Price
Control Act of 1942 was designed to prevent economic dislocations from endangering
the national defense and security and the effective prosecution of the war. (Smith and
Cotter, Powers of the President During Crises, 1972, p.18)

[129]
 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the
emergency and necessity for relief in stricken agricultural areas and in another section
referred to "the present drought emergency."[129] The India Emergency Food Aid Act of
1951 provided for emergency shipments of food to India to meet famine conditions
then ravaging the great Asian sub-continent. The Communication Act of 1934 and
its 1951 amendment grant the President certain powers in time of "public peril or
disaster." The other statutes provide for existing or anticipated emergencies attributable
to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides.[129] There
is also a Joint Resolution of April 1937. It made "funds available for the control of
incipient or emergency outbreaks of insect pests or plant diseases, including
grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2
[a]) Supra.

[130]
 National Security may be cataloged under the heads
of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The
Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an
enemy of the United States which conceivably would cause substantial damage or injury
to civilian property or persons in the United States by any one of several means;
sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological
means or other weapons or processes. Such an occurrence would cause a "National
Emergency for Civil Defense Purposes," or "a state of civil defense emergency," during
the term which the Civil Defense Administrator would have recourse to extraordinary
powers outlined in the Act. The New York-New Jersey Civil Defense Compact  supplies an
illustration in this context for emergency cooperation. "Emergency" as used in this
compact shall mean and include invasion, or other hostile action, disaster,
insurrection or imminent danger thereof. ( Id., p.15-16)

[131]
  Cruz, Philippine Political Law, 1998, p. 95.

[132]
 Record of the Constitutional Commission, Vol. III, pp. 266-267.

[133]
 Record of the Constitutional Convention, pp. 648-649.

[134]
 84 Phil. 368 (1949).

[135]
  Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.

[136] 
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261,
cert den 280 US 610, 74 L ed 653, 50 S Ct 158.

[137]
  Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY
309, 105 NE 548.

[138]
  Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.

[139]
 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.

[140]
  Ibid.

[141] 
In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary
Lecture Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck
(Austria) and President of the International Progress Organization, speaking on "The
United Nations, The International Rule of Law and Terrorism" cited in the Dissenting
Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No. 151445, April 11,
2002, 380 SCRA 739.

[142]
 Section 2, Article III of the 1987 Constitution.

[143]
 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer,
p. 51.

[144]
 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
[145]
 An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble
and Petition the Government for Other Purposes.

[146] 
Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.

[147]
  Ibid.

[148]
 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

[149]
  Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.

[150]
 Section 5. Application requirements - All applications for a permit shall comply with
the following guidelines:

x x x x x x

(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.
[151] 
Petition in G.R. No. 171400, p. 11.

[152] 
No. L-64161, December 26, 1984, 133 SCRA 816.

[153] 
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos.
102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.

[154]
  Boyd v. United States, 116 U.S. 616 (1886).

[155] 
Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.

[156] 
Ibid., pp. 432-433.

[157] 
Ibid, pp. 507-508.

[158]
 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

CONCURRING OPINION
PANGANIBAN, CJ:

I was hoping until the last moment of our deliberations on these consolidated cases that
the Court would be unanimous in its Decision. After all, during the last two weeks, it
decided with one voice two equally contentious and nationally significant controversies
involving Executive Order No. 464[1] and the so-called Calibrated Preemptive Response
policy.[2]

However, the distinguished Mr. Justice Dante O. Tinga's Dissenting Opinion has made
that hope an impossibility. I now write, not only to express my full concurrence in the
thorough and elegantly written ponencia of the esteemed Mme. Justice Angelina
Sandoval-Gutierrez, but more urgently to express a little comment on Justice Tinga's
Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing
wrong with PP 1017. It labels the PP a harmless pronouncement -- "an utter superfluity"
-- and denounces the ponencia as an "immodest show of brawn" that "has imprudently
placed the Court in the business of defanging paper tigers."

Under this line of thinking, it would be perfectly legal for the President to reissue PP
1017 under its present language and nuance. I respectfully disagree.

Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to some
minds" -- "may have flirted with power." With due respect, this is a masterful
understatement. PP 1017 may be a paper tiger, but -- to borrow the colorful words of an
erstwhile Asian leader -- it has nuclear teeth that must indeed be defanged.

Some of those who drafted PP 1017 may be testing the outer limits of presidential
prerogatives and the perseverance of this Court in safeguarding the people's
constitutionally enshrined liberty. They are playing with fire, and unless prudently
restrained, they may one day wittingly or unwittingly burn down the country. History
will never forget, much less forgive, this Court if it allows such misadventure and refuses
to strike down abuse at its inception. Worse, our people will surely condemn the misuse
of legal hocus pocus to justify this trifling with constitutional sanctities.

And even for those who deeply care for the President, it is timely and wise for this Court
to set down the parameters of power and to make known, politely but firmly, its dogged
determination to perform its constitutional duty at all times and against all odds.
Perhaps this country would never have had to experience the wrenching pain of
dictatorship; and a past President would not have fallen into the precipice of
authoritarianism, if the Supreme Court then had the moral courage to remind him
steadfastly of his mortality and the inevitable historical damnation of despots and
tyrants. Let not this Court fall into that same rut.

[1]
  Senate v. Ermita, GR No. 169777, April 20, 2006.

[2]
  Bayan v. Ermita, GR No. 169838, April 25, 2006.

DISSENTING OPINION

TINGA, J:

I regret to say that the majority, by its ruling today, has imprudently placed the Court in
the business of defanging paper tigers. The immodest show of brawn unfortunately
comes at the expense of an exhibition by the Court of a fundamental but sophisticated
understanding of the extent and limits of executive powers and prerogatives, as well as
those assigned to the judicial branch. I agree with the majority on some points, but I
cannot join the majority opinion, as it proceeds to rule on non-justiciable issues based
on fears that have not materialized, departing as they do from the plain language of the
challenged issuances to the extent of second-guessing the Chief Executive. I respectfully
dissent.

The key perspective from which I view these present petitions is my

own ponencia in Sanlakas v. Executive Secretary,[1] which centered on Presidential
Proclamation No. 427 (PP 427), declaring a "state of rebellion" in 2003. The Court
therein concluded that while the declaration was constitutional, such declaration should
be regarded as both regarded as "an utter superfluity", which "only gives notice to the
nation that such a state exists and that the armed forces may be called to prevent or
suppress it", and "devoid of any legal significance", and "cannot diminish or violate
constitutionally protected rights." I submit that the same conclusions should be reached
as to Proclamation No. 1017 (PP 1017). Following the cardinal precept that the acts of
the executive are presumed constitutional is the equally important doctrine that to
warrant unconstitutionality, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication.[2] Also well-settled as a rule
of construction is that where thee are two possible constructions of law or executive
issuance one of which is in harmony with the Constitution, that construction should be
preferred.[3] The concerns raised by the majority relating to PP 1017 and General Order
Nos. 5 can be easily disquieted by applying this well-settled principle.

I.
PP 1017Has No Legal Binding
 Effect; Creates No Rights and
Obligations; and Cannot Be
Enforced or Invoked in a Court
Of Law

First, the fundamentals. The President is the Chief of State and Foreign Relations, the
chief of the Executive Branch,[4] and the Commander-in-Chief of the Armed Forces.[5] The
Constitution vests on the President the executive power.[6] The President derives these
constitutional mandates from direct election from the people. The President stands as
the most recognizable representative symbol of government and of the Philippine state,
to the extent that foreign leaders who speak with the President do so with the
understanding that they are speaking to the Philippine state.

Yet no matter the powers and prestige of the presidency, there are significant
limitations to the office of the President. The President does not have the power to
make or legislate laws,[7] or disobey those laws passed by Congress.[8] Neither does the
President have to power to create rights and obligations with binding legal effect on the
Filipino citizens, except in the context of entering into contractual or treaty obligations
by virtue of his/her position as the head of State. The Constitution likewise imposes
limitations on certain powers of the President that are normally inherent in the office.
For example, even though the President is the administrative head of the Executive
Department and maintains executive control thereof,[9] the President is precluded from
arbitrarily terminating the vast majority of employees in the civil service whose right to
security of tenure is guaranteed by the Constitution.[10]

The President has inherent powers,[11] powers expressly vested by the Constitution, and
powers expressly conferred by statutes. The power of the President to make
proclamations, while confirmed by statutory grant, is nonetheless rooted in an inherent
power of the presidency and not expressly subjected to constitutional limitations. But
proclamations, as they are, are a species of issuances of extremely limited efficacy. As
defined in the Administrative Code, proclamations are merely "acts of the President
fixing a date or declaring a status or condition of public moment or interest upon the
existence of which the operation of a specific law or regulation is made to depend".[12] A
proclamation, on its own, cannot create or suspend any constitutional or statutory
rights or obligations. There would be need of a complementing law or regulation
referred to in the proclamation should such act indeed put into operation any law or
regulation by fixing a date or declaring a status or condition of a public moment or
interest related to such law or regulation. And should the proclamation allow the
operationalization of such law or regulation, all subsequent resultant acts cannot exceed
or supersede the law or regulation that was put into effect.

Under Section 18, Article VII of the Constitution, among the constitutional powers of the
President, as Commander-in-Chief, is to "call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion".[13] The existence of invasion or
rebellion could allow the President to either suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law, but there is a fairly
elaborate constitutional procedure to be observed in such a case, including
congressional affirmation or revocation of such suspension or declaration, as well as the
availability of judicial review. However, the existence of lawless violence, invasion or
rebellion does not ipso facto cause the "calling out" of the armed forces, the suspension
of habeas corpus or the declaration of martial law ─ it remains within the discretion of
the President to engage in any of these three acts should said conditions arise.

Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such

declaration could ostensibly predicate the suspension of the privilege of the writ
of habeas corpus or the declaration of martial law, but the President did not do so.
Instead, PP 427, and the accompanying General Order No. 4, invoked the "calling out" of
the Armed Forces to prevent lawless violence, invasion and rebellion. Appreciably, a
state of lawless violence, invasion or rebellion could be variable in scope, magnitude
and gravity; and Section 18, Article VII allows for the President to respond with the
appropriate measured and proportional response.

Indeed, the diminution of any constitutional rights through the suspension of the
privilege of the writ or the declaration of martial law is deemed as "strong medicine" to
be used sparingly and only as a last resort, and for as long as only truly necessary. Thus,
the mere invocation of the "calling out" power stands as a balanced means of enabling a
heightened alertness in dealing with the armed threat, but without having to suspend
any constitutional or statutory rights or cause the creation of any new obligations. For
the utilization of the "calling out" power alone cannot vest unto the President any new
constitutional or statutory powers, such as the enactment of new laws. At most, it can
only renew emphasis on the duty of the President to execute already existing laws
without extending a corresponding mandate to proceed extra-constitutionally or extra-
legally. Indeed, the "calling out" power does not authorize the President or the
members of the Armed Forces to break the law.

These were the premises that ultimately informed the Court's decision in Sanlakas,
which affirmed the declaration of a "state of rebellion" as within the "calling out" power
of the President, but which emphasized that for legal intents and purposes, it should be
both regarded as "an utter superfluity", which "only gives notice to the nation that such
a state exists and that the armed forces may be called to prevent or suppress it," and
"devoid of any legal significance," as it could not "cannot diminish or violate
constitutionally protected rights." The same premises apply as to PP 1017.

A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in

order.
                                    PP 427                                                        PP 1017

NOW, THEREFORE, I, GLORIA NOW, THEREFORE, I Gloria

MACAPAGAL-ARROYO, by virtue Macapagal-Arroyo, President
of the powers vested in me by of the Republic of the
law, hereby confirm the existence Philippines and Commander-
of an actual and on-going in-Chief of the Armed Forces
rebellion, compelling me to of the Philippines, by virtue of
declare a state of rebellion. the powers vested upon me
by Section 18, Article 7 of the
In view of the foregoing, I am Philippine Constitution which
issuing General Order No. 4 in states that: "The President. . .
accordance with Section 18, whenever it becomes
Article VII of the Constitution, necessary, . . . may call out
calling out the Armed Forces of (the) armed forces to prevent
the Philippines and the Philippine or suppress. . . rebellion. . .,"
National Police to immediately and in my capacity as their
carry out the necessary actions Commander-in-Chief, do
and measures to suppress and hereby command the Armed
quell the rebellion with due Forces of the Philippines, to
regard to constitutional rights. maintain law and order
throughout the Philippines,
prevent or suppress all forms
of lawless violence as well
any act of insurrection or
rebellion and to enforce
obedience to all the laws and
to all decrees, orders and
regulations promulgated by
me personally or upon my
direction; and as provided in
Section 17, Article 12 of the
Constitution do hereby
declare a State of National
Emergency.

Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two
distinct phases. The first is the declaration itself of a status or condition, a "state of
rebellion" in PP 437, and a "state of national emergency" under PP 1017. Both "state of
rebellion" and "state of national emergency" are terms within constitutional
contemplation. Under Section 18, Article VII, the existence of a "state of rebellion" is
sufficient premise for either the suspension of the privilege of the writ of habeas corpus
or the declaration of martial law, though in accordance with the strict guidelines under
the same provision. Under Section 17, Article XII, the existence of a state of national
emergency is sufficient ground for the State, during the emergency, under reasonable
terms prescribed by it, and when the public interest so requires, to temporarily take
over or direct the operation of any privately-owned public utility or business affected
with public interest. Under Section 23(2), Article VI, the existence of a state of national
emergency may also allow Congress to authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy.

Certainly, the declaration could stand as the first step towards constitutional
authorization for the exercise by the President, the Congress or the State of
extraordinary powers and prerogatives. However, the declaration alone cannot put into
operation these extraordinary powers and prerogatives, as the declaration must be
followed through with a separate act providing for the actual utilization of such powers.
In the case of the "state of rebellion," such act involves the suspension of the writ or
declaration of martial law. In the case of the "state of national emergency," such act
involves either an order for the takeover or actual takeover by the State of public
utilities or businesses imbued with public interest or the authorization by Congress for
the President to exercise emergency powers.

In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the
writ or the declaration of martial law. In PP 1017, the declaration of a "state of national
emergency" did not lead to an authorization for the takeover or actual takeover of any
utility or business, or the grant by Congress to the President of emergency powers.
Instead, both declarations led to the invocation of the calling out power of the President
under Section 18, Article VII, which the majority correctly characterizes as involving only
"ordinary police action."

I agree with the ponencia's holding that PP 1017 involves the exercise by the President
of the "calling out" power under Section 18, Article VII. In Integrated Bar v. Zamora,
[14]
 the Court was beseeched upon to review an order of President Estrada commanding
the deployment of the Marines in patrols around Metro Manila, in view of an increase in
crime.[15] The Court, speaking through Justice Santiago Kapunan, affirmed the President's
order, asserting that "it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or suppress
lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise
of such discretion was gravely abused, the President's exercise of judgment deserves to
be accorded respect from this Court."[16] Tellingly, the order of deployment by President
Estrada was affirmed by the Court even though we held the view that the power then
involved was not the "calling out" power, but "the power involved may be no more than
the maintenance of peace and order and promotion of the general welfare."[17]
It was also maintained in Integrated Bar that while Section 18, Article VII mandated two
conditions ─ actual rebellion or invasion and the requirement of public safety ─
before the suspension of the privilege of the writ of habeas corpus or the declaration of
martial law could be declared, "these conditions are not required in the case of the
power to call out the armed forces. The only criterion is that "whenever it becomes
necessary", the President may call the armed forces "to suppress lawless violence,
invasion or rebellion."[18] The Court concluded that the implication was "that the
President is given full discretion and wide latitude in the exercise of the power to call as
compared to the two other powers."[19]

These propositions were affirmed in Sanlakas, wherein the invocation of the calling out
power was expressly made by President Arroyo. The Court noted that for the purpose of
exercising the calling out power, the Constitution did not require the President to make
a declaration of a state of rebellion.[20] At the same time, the Court
in Sanlakas acknowledged that "the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers."[21]

For still unclear reasons, the majority attempts to draw a distinction

between Sanlakas and the present petitions by that the statutory authority to declare a
"state of rebellion" emanates from the Administrative Code of 1987, particularly the
provision authorizing the President to make proclamations. As such, the declaration of a
"state of rebellion," pursuant to statutory authority, "was merely an act declaring a
status or condition of public moment or interest." The majority grossly
misreads Sanlakas, which expressly roots the declaration of a state of rebellion from the
wedded powers of the Chief Executive, under Section 1, Article VII, and as Commander-
in-Chief, under Section 18, Article VII.

Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of
the directive to the Armed Forces of the Philippines to "suppress all forms of lawless
violence". But there are nuances to the calling out power invoked in PP 1017 which the
majority does not discuss. The directive "to suppress all forms of lawless violence" is
addressed not only to the Armed Forces but to the police as well. The "calling out" of
the police does not derive from Section 17, Article VII, or the commander-in-chief
clause, our national police being civilian in character. Instead, the calling out of the
police is sourced from the power of the President as Chief Executive under Section 1,
Article VII, and the power of executive control under Section 18, Article VII. Moreover,
while the permissible scope of military action is limited to acts in furtherance of
suppressing lawless violence, rebellion, invasion, the police can be commanded by the
President to execute all laws without distinction in light of the presidential duty to
execute all laws.[22]
Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the
discretion of the Chief Executive in the exercise of the "calling out" power due to a
recognition that the said power is of limited import, directed only to the Armed Forces
of the Philippines, and incapable of imposing any binding legal effect on the citizens and
other branches of the Philippines. Indeed, PP 1017 does not purport otherwise. Nothing
in its operative provisions authorize the President, the Armed Forces of the Philippines,
or any officer of the law, to perform any extra-constitutional or extra-legal acts. PP 1017
does not dictate the suspension of any of the people's guarantees under the Bill of
Rights.

If it cannot be made more clear, neither the declaration of a state of emergency under
PP 1017 nor the invocation of the calling out power therein authorizes warrantless
arrests, searches or seizures; the infringement of the right to free expression,
peaceable assembly and association and other constitutional or statutory rights. Any
public officer who nonetheless engaged or is engaging in such extra-constitutional or
extra-legal acts in the name of PP 1017 may be subjected to the appropriate civil,
criminal or administrative liability.

To prove this point, let us now compare PP 1017 with a different presidential issuance,
one that was intended to diminish constitutional and civil rights of the people. The said
issuance, Presidential Proclamation No. 1081, was issued by President Marcos in 1972
as the instrument of declaring martial law. The operative provisions read:

PD. 1081                                                         PP 1017

Now, thereof, I, Ferdinand E. NOW, THEREFORE, I Gloria

Marcos, President Of the Macapagal-Arroyo, President of the
Philippines, by virtue of the Republic of the Philippines and
powers vested upon me by Commander-in-Chief of the Armed
article VII, Section 10, Forces of the Philippines, by virtue
Paragraph (2) of the of the powers vested upon me by
Constitution, do Section 18, Article 7 of the
hereby place the entire Philippine Constitution which
Philippines as defined in the states that: "The President. . .
article I, Section 1, of the whenever it becomes
Constitution under martial necessary, . . . may call out (the)
law, and in my capacity as armed forces to prevent or
their commander-in-chief, suppress. . . rebellion. . .," and in
do hereby command the my capacity as their Commander-
arned forces of the in-Chief, do hereby command the
Philippines, to maintain law Armed Forces of the Philippines, to
and order throughout the maintain law and order throughout
Philippines, prevent or the Philippines, prevent or
suppress all forms of lawless suppress all forms of lawless
violence as well as any act of violence as well any act of
insurrection or rebellion and insurrection or rebellion and to
to enforce obedience to all enforce obedience to all the laws
the laws and decrees, orders and to all decrees, orders and
and regulations promulgated regulations promulgated by me
by me personally or upon personally or upon my direction;
my direction. and as provided in Section 17,
Article 12 of the Constitution do
In addition, I do hereby hereby declare a State of National
order that all persons Emergency.
presently detained, as well
as others who may
hereafter be similarly
detained for the crimes of
insurrection or rebellion,
and all other crimes and
offenses committed in
furtherance or on the
occasion thereof, or
incident thereto, or in
connection therewith, for
crimes against national
security and the law of
nations, crimes, against the
fundamental laws of the
state, crimes against public
order, crimes involving
usurpation of authority,
rank, title and improper use
of names, uniforms and
insignia, crimes committed
by public officers, and for
such other crimes as will be
enumerated in Orders that I
shall subsequently
promulgate, as well as
crimes as a consequence of
any violation of any decree,
order or regulation
promulgated by me
personally or promulgated
upon my direction shall be
 kept under detention until
otherwise ordered released
by me or by my duly
designated
representative. (emphasis
supplied)

Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017
merely declared the existence of a state of rebellion, an act ultimately observational in
character, PP 1081 "placed the entire Philippines under martial law," an active
implement[23] that, by itself, substituted civilian governmental authority with military
authority. Unlike in the 1986 Constitution, which was appropriately crafted with an
aversion to the excesses of Marcosian martial rule, the 1935 Constitution under which
PP 1081 was issued left no intervening safeguards that tempered or limited the
declaration of martial law. Even the contrast in the verbs used, "place" as opposed to
"declare," betrays some significance. To declare may be simply to acknowledge the
existence of a particular condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual condition even if it did not
exist before.

Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the
contexts of such power are wildly distaff in light of PP 1081's accompanying declaration
of martial law. Since martial law involves the substitution of the military in the civilian
functions of government, the calling out power involved in PP 1081 is significantly
greater than the one involved in PP 1017, which could only contemplate the
enforcement of existing laws in relation to the suppression of lawless violence, rebellion
or invasion and the maintenance of general peace and order.

Further proof that PP 1081 intended a wholesale suspension of civil liberties in the
manner that PP 1017 does not even ponder upon is the subsequent paragraph cited,
which authorizes the detention and continued detention of persons for a plethora of
crimes not only directly related to the rebellion or lawless violence, but of broader range
such as those "against national security," or "public order." The order of detention
under PP 1081 arguably includes every crime in the statute book. And most alarmingly,
any person detained by virtue of PP 1081 could remain in perpetual detention unless
otherwise released upon order of President Marcos or his duly authorized
representative.

Another worthy point of contrast concerns how the Supreme Court, during the martial
law era, dealt with the challenges raised before it to martial law rule and its effects on
civil liberties. While martial law stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and liberties could have stood
ground against even the most fundamental of human rights abuses ostensibly protected
under the 1935 and 1973 constitutions and under international declarations and
conventions. Yet a perusal of Aquino v. Enrile,[24] the case that decisively affirmed the
validity of martial law rule, shows that most of the Justices then sitting exhibited
diffidence guised though as deference towards the declaration of martial law. Note
these few excerpts from the several opinions submitted in that case which stand as
typical for those times:
The present state of martial law in the Philippines is peculiarly Filipino and fits into no
traditional patterns or judicial precedents. xxx In the first place I am convinced (as are
the other Justices), without need of receiving evidence as in an ordinary adversary court
proceeding, that a state of rebellion existed in the country when Proclamation No. 1081
was issued. It was a matter of contemporary history within the cognizance not only of
the courts but of all observant people residing here at that time. xxx The state of
rebellion continues up to the present. The argument that while armed hostilities go on
in several provinces in Mindanao there are none in other regions except in isolated
pockets in Luzon, and that therefore there is no need to maintain martial law all over
the country, ignores the sophisticated nature and ramifications of rebellion in a modern
setting. It does not consist simply of armed clashes between organized and identifiable
groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting.
Underground propaganda, through printed newssheets or rumors disseminated in
whispers; recruiting of armed and ideological adherents, raising of funds, procurement
of arms and materiel, fifth-column activities including sabotage and intelligence ─ all
these are part of the rebellion which by their nature are usually conducted far from the
battle fronts. They cannot be counteracted effectively unless recognized and dealt with
in that context.[25]

xxx

[T]he fact that courts are open cannot be accepted as proof that the rebellion and
insurrection, which compellingly called for the declaration of martial law, no longer
imperil the public safety. Nor are the many surface indicia adverted to by the petitioners
(the increase in the number of tourists, the choice of Manila as the site of international
conferences and of an international beauty contest) to be regarded as evidence that the
threat to public safety has abated. There is actual armed combat, attended by the
somber panoply of war, raging in Sulu and Cotabato, not to mention the Bicol region
and Cagayan Valley. I am hard put to say, therefore, that the Government's claim is
baseless.

I am not insensitive to the plea made here in the name of individual liberty. But to
paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner Diokno that is in
issue we would probably resolve the doubt in his favor and grant his application. But the
Solicitor General, who must be deemed to represent the President and the Executive
Department in this case, has manifested that in the President's judgment peace and
tranquility cannot be speedily restored in the country unless the petitioners and others
like them meantime remain in military custody. For, indeed, the central matter involved
is not merely the liberty of isolated individuals, but the collective peace, tranquility and
security of the entire nation.[26]

xxx

It may be that the existence or non-existence or imminence of a rebellion of the

magnitude that would justify the imposition of martial law is an objective fact capable of
judicial notice, for a rebellion that is not of general knowledge to the public cannot
conceivably be dangerous to public safety. But precisely because it is capable of judicial
notice, no inquiry is needed to determine the propriety of the Executive's action.

Again, while the existence of a rebellion may be widely known, its real extent and the
dangers it may actually pose to the public safety are not always easily perceptible to the
unpracticed eye. In the present day practices of rebellion, its inseparable subversion
aspect has proven to be more effective and important than "the rising (of persons)
publicly and taking arms against the Government" by which the Revised Penal Code
characterizes rebellion as a crime under its sanction. Subversion is such a covert kind of
anti-government activity that it is very difficult even for army intelligence to determine
its exact area of influence and effect, not ot mention the details of its forces and
resources. By subversion, the rebels can extend their field of action unnoticed even up
to the highest levels of the government, where no one can always be certain of the
political complexion of the man next to him, and this does not exclude the courts. Arms,
ammunition and all kinds of war equipment travel and are transferred in deep secrecy
to strategic locations, which can be one's neighborhood without him having any idea of
what is going on. There are so many insidious ways in which subversives act, in fact too
many to enumerate, but the point that immediately suggests itself is that they are
mostly incapable of being proven in court, so how are We to make a judicial inquiry
about them that can satisfy our judicial conscience.

The Constitution definitely commits it to the Executive to determine the factual bases
and to forthwith act as promptly as possible to meet the emergencies of rebellion and
invasion which may be crucial to the life of the nation. He must do this with unwavering
conviction, or any hesitancy or indecision on his part will surely detract from the needed
precision in his choice of the means he would employ to repel the aggression. The
apprehension that his decision might be held by the Supreme Court to be a
transgression of the fundamental law he has sworn to "defend and preserve" would
deter him from acting when precisely it is most urgent and critical that he should act,
since the enemy is about to strike the mortal blow.[27]

xxx
To start with, Congress was not unaware of the worsening conditions of peace and
order and of, at least, evident insurgency, what with the numerous easily verifiable
reports of open rebellious activities in different parts of the country and the series of
rallies and demonstrations, often bloody, in Manila itself and other centers of
population, including those that reached not only the portals but even the session hall
of the legislature, but the legislators seemed not to be sufficiently alarmed or they
either were indifferent or did not know what to do under the circumstances. Instead of
taking immediate measures to alleviate the conditions denounced and decried by the
rebels and the activists, they debated and argued long on palliatives without coming out
with anything substantial much less satisfactory in the eyes of those who were
seditiously shouting for reforms. In any event, in the face of the inability of Congress to
meet the situation, and prompted by his appraisal of a critical situation that urgently
called for immediate action, the only alternative open to the President was to resort to
the other constitutional source of extraordinary powers, the Constitution itself.[28]

xxx

Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering

detention of persons, the Proclamation pointedly limits arrests and detention only to
those "presently detained, as well as others who may hereafter be similarly detained for
the crimes of insurrection or rebellion, and all other crimes and offences committed in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith,
for crimes against national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes involving usurpation
of authority, rank, title and improper use of names, uniforms and insignia, crimes
committed by public officers, and for such other crimes as will be enumerated in Orders
that I shall subsequently promulgate, as well as crimes as a consequence of any violation
of any decree, order or regulation promulgated by me personally or promulgated upon
my direction." Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, it is
merely in a state of anaesthesia, to the end that the much needed major surgery to save
the nation's life may be successfully undertaken.[29]

xxx

The quoted lines of reasoning can no longer be sustained, on many levels, in these more
enlightened times. For one, as a direct reaction to the philosophy of judicial inhibition so
frequently exhibited during the Marcos dictatorship, our present Constitution has
explicitly mandated judicial review of the acts of government as part of the judicial
function. As if to rebuff Aquino, the 1987 Constitution expressly allows the Supreme
Court to review the sufficiency of the factual basis of the proclamation of martial law
and decide the same within 30 days from the filing of the appropriate case.[30] The
Constitution also emphasizes that a state of martial law did not suspend the operation
of the Constitution or supplant the functioning of the judicial and legislative branches.
[31]
 The expediency of hiding behind the political question doctrine can no longer be
resorted to.

For another, the renewed emphasis within domestic and international society on the
rights of people, as can be seen in worldwide democratic movements beginning with
our own in 1986, makes it more difficult for a government established and governed
under a democratic constitution, to engage in official acts that run contrary to the basic
tenets of democracy and civil rights. If a government insists on proceeding otherwise,
the courts will stand in defense of the basic constitutional rights of the people.

Still, the restoration of rule under law, the establishment of national governmental
instrumentalities, and the principle of republicanism all ensure that the constitutional
government retains significant powers and prerogatives, for it is through such measures
that it can exercise sovereign will in behalf of the people. Concession to those
presidential privileges and prerogatives should be made if due. The abuses of past
executive governments should not detract from these basic governmental powers, even
as they may warrant a greater degree of wariness from those institutions that balance
power and the people themselves. And the rule of law should prevail above all. The
damage done by martial rule was not merely personal but institutional, and the proper
rebuke to the caprices and whims of the iniquitous past is to respect the confines of the
restored rule of law.[32]

Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to
matching PP 1081. It is a rank insult to those of us who suffered or stood by those
oppressed under PP 1081 to even suggest that the innocuous PP 1017 is of equivalent
import.

PP 1017 Does Not Purport or

Pretend that the President Has
The Power to Issue Decrees

There is one seeming similarity though in the language of PP 1017 and PP 1081, harped
upon by some of the petitioners and alluded to by the majority. PP 1017 contains a
command to the Armed Forces "to enforce obedience to all the laws and to all decrees,
orders and regulations by [the President]". A similar command was made under PP
1081. That in itself should not be a cause of surprise, since both PP 1017 and PP 1081
expressly invoked the "calling out" power, albeit in different contexts.
The majority however considers that since the President does not have the power to
issue decrees, PP 1017 is unconstitutional insofar as it enforces obedience "to all
decrees." For one, it should be made clear that the President currently has no power to
issue decrees, and PP 1017 by no measure seeks to restore such power to the President.
Certainly, not even a single decree was issued by President Arroyo during the several
days PP 1017 was in effect, or during her term thus far for that matter.

At the same time, such power did once belong to the President during the Marcos era
and was extensively utilized by President Marcos. It has to be remembered that chafed
as we may have under some of the Marcos decrees, per the 1987 Constitution they still
remain as part of the law of the land unless particularly stricken down or repealed by
subsequent enactments. Indeed, when the President calls upon the Armed Forces to
enforce the laws, those subsisting presidential decrees issued by President Marcos in
the exercise of his legislative powers are included in the equation.

This view is supported by the rules of statutory construction. The particular passage in
PP 1017 reads '"to enforce obedience to all the laws and to all decrees, orders and
regulations," with the phrases "all the laws and to all decrees" separated by a comma
from "orders and regulations promulgated by me." Inherently, laws and those decrees
issued by President Marcos in the exercise of his legislative powers, and even those
executive issuances of President Aquino in the exercise of her legislative powers, belong
to the same class, superior in the hierarchy of laws than "orders and regulations." The
use of the conjunction "and" denotes a joinder or union, "relating the one to the
other."[33] The use of "and" establishes an association between laws and decrees distinct
from orders and regulations, thus permitting the application of the doctrine of noscitur
a sociis to construe "decrees" as those decrees which at present have the force of law.
The dividing comma further signifies the segregation of concepts between ""laws and
decrees" on one hand, and "orders and regulations" on the other.

Further proof that "laws and decrees" stand as a class distinct from "orders and
regulations" is the qualifying phrase "promulgated by me," which necessarily refers only
to orders and regulations. Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by President Arroyo since
she assumed office in 2001. "Laws and decrees" do not relate only to those promulgated
by President Arroyo, but other laws enacted by past sovereigns, whether they be in the
form of the Marcos presidential decrees, or acts enacted by the American Governor-
General such as the Revised Penal Code. Certainly then, such a qualification sufficiently
addresses the fears of the majority that PP 1017 somehow empowers or recognizes the
ability of the current President to promulgate decrees. Instead, the majority pushes an
interpretation that, if pursued to its logical end, suggests that the President by virtue of
PP 1017 is also arrogating unto herself, the power to promulgate laws, which are in the
mold of enactments from Congress. Again, in this respect, the grouping of "laws" and
"decrees" separately from "orders" and "regulations" signifies that the President has not
arrogated unto herself the power to issue decrees in the mold of the infamous Marcos
decrees.

Moreover, even assuming that PP 1017 was intended to apply to decrees which the
current President could not very well issue, such intention is of no consequence, since
the proclamation does not intend or pretend to grant the President such power in the
first place. By no measure of contemplation could PP 1017 be interpreted as reinstating
to the President the power to issue decrees.

I cannot see how the phrase "enforce obedience to decrees" can be the source of
constitutional mischief, since the implementation of PP 1017 will not vest on the
President the power to issue such decrees. If the Court truly feels the need to clarify this
point, it can do so with the expediency of one sentence or even a footnote. A solemn
declaration that the phrase is unconstitutional would be like killing a flea with dynamite
when insect powder would do.

PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of
The Presidency

Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in
relation to the citizenry, the courts or on Congress. Still, there is another purpose and
dimension behind PP 1017 that fall within the valid prerogatives of the President.

The President, as head of state, is cast in a unique role in our polity matched by no other
individual or institution. Apart from the constitutional powers vested on the President
lie those powers rooted in the symbolic functions of the office. There is the common
expectation that the President should stand as the political, moral and social leader of
the nation, an expectation not referred to in of the oath of office, but expected as a
matter of tradition. In fact, a President may be cast in crisis even if the Chief Executive
has broken no law, and faithfully executed those laws that exist, simply because the
President has failed to win over the hearts and minds of the citizens. As a Princeton
academic, Woodrow Wilson once observed that with the People, the President is
everything, and without them nothing, and the sad decline of his own eventual
presidency is no better proof of the maxim. Such are among the vagaries of the political
office, and generally beyond judicial relief or remedy.

Justice Robert Jackson's astute observation in Youngstown Sheet & Tube Co. v.
Sawyer[34] on the unique nature of the presidency, has been widely quoted:

Executive power has the advantage of concentration in a single head in whose choice
the whole Nation has a part, making him the focus of public hopes and expectations. In
drama, magnitude, and finality, his decisions so far overshadow any others that almost
alone he fills the public eye and ear. No other personality in public life can begin to
compete with him in access to the public mind through modern methods of
communications. By his prestige as head of state and his influence upon public opinion
he exerts a leverage upon those who are supposed to check and balance his power
which often cancels their effectiveness.[35]

Correspondingly, the unique nature of the office affords the President the opportunity
to profoundly influence the public discourse, not necessarily through the enactment or
enforcement of laws, but specially by the mere expediency of taking a stand on the
issues of the day. Indeed, the President is expected to exercise leadership not merely
through the proposal and enactment of laws, but by making such vital stands. U.S.
President Theodore Roosevelt popularized the notion of the presidency as a "bully
pulpit", in line with his belief that the President was the steward of the people limited
only by the specific restrictions and prohibitions appearing in the Constitution, or
impleaded by Congress under its constitutional powers.

Many times, the President exercises such prerogative as a responsive measure, as after
a mass tragedy or calamity. Indeed, when the President issues a declaration or
proclamation of a state of national mourning after a disaster with massive casualties,
while perhaps de rigeur, is not the formalistic exercise of tradition, but a statement that
the President, as the representative of the Filipino people, grieves over the loss of life
and extends condolences in behalf of the people to the bereaved. This is leadership at
its most solemn.

Yet the President is not precluded, in the exercise of such role, to be merely responsive.
The popular expectation in fact is of a pro-active, dynamic chief executive with an ability
to identify problems or concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of state, very well has the
capacity to use the office to garner support for those great national quests that define a
civilization, as President Kennedy did when by a mere congressional address, he put
America on track to the goal of placing a man on the moon. Those memorable
presidential speeches memorized by schoolchildren may have not, by themselves, made
operative any law, but they served not only merely symbolic functions, but help
profoundly influence towards the right direction, the public opinion in the discourse of
the times. Perhaps there was no more dramatic example of the use of the "bully pulpit"
for such noble purposes than in 1964, when an American President from Texas stood
before a Congress populated by many powerful bigots, and fully committed himself as
no other President before to the cause of civil rights with his intonation of those lines
from the civil rights anthem, "we shall overcome."

From an earlier era in American history, Lincoln's Emancipation Proclamation stands out
as a presidential declaration which clearly staked American polity on the side of the
democratic ideal, even though the proclamation itself was of dubitable legal value. The
proclamation, in short form, "freed the slaves", but was not itself free of legal questions.
For one, the notion that the President could, by himself, alter the civil and legal status of
an entire class of persons was dubious then and now, although President Lincoln did
justify his action as in the exercise of his powers as commander-in-chief during wartime,
"as a fit and necessary war measure for suppressing [the] rebellion." Moreover, it has
been pointed out that the Proclamation only freed those slaves in those states which
were then in rebellion, and it eventually took the enactment of the Thirteenth
Amendment of the U.S. Constitution to legally abolish involuntary servitude.
[36]
 Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still
stands as a defining example not only of the Lincoln Presidency, but of American
democratic principles. It may be remembered to this day not exactly as an operational
means by which slaves were actually freed, but as a clear rhetorical statement that
slavery could no longer thenceforth stand.

The President as Chief Government Spokesperson of the democratic ideals is entrusted

with a heady but comfortable pursuit. But no less vital, if somewhat graver, is the role of
the President as the Chief Defender of the democratic way of life. The "calling out"
power assures the President such capability to a great extent, yet it will not fully suffice
as a defense of democracy. There is a need for the President to rally the people to
defend the Constitution which guarantees the democratic way of life, through means
other than coercive. I assert that the declaration of a state of emergency, on premises of
a looming armed threat which have hardly been disputed, falls within such proper
functions of the President as the defender of the Constitution. It was designed to inform
the people of the existence of such a threat, with the expectation that the citizenry
would not aid or abet those who would overturn through force the democratic
government. At the same time, the Proclamation itself does not violate the Constitution
as it does not call for or put into operation the suspension or withdrawal of any
constitutional rights, or even create or diminish any substantive rights.

I submit that it would be proper for the Court to recognize that PP 1017 strikes a
commendable balance between the Constitution, the "calling out" power, and the
inherent function of the Presidency as defender of the democratic constitution. PP 1017
keeps within the scope and limitations of these three standards. It asserts the primacy
of the democratic order, civilian control over the armed forces, yet respects
constitutional and statutory guarantees of the people.

II.
Section 17, Article XII
of the Constitution
In Relation to PP 1017

My next issue with the majority pertains to the assertion that the President does not
have the power to take over public utilities or businesses impressed with public interest
under Section 17, Article XII of the Constitution without prior congressional
authorization. I agree that the power of the State to take over such utilities and
businesses is highly limited, and should be viewed with suspicion if actually enforced.

Yet qualifications are in order with regard to how Section 17, Article XII actually relates
of PP 1017.

I agree with the majority that a distinction should be asserted as between the power of
the President to declare a state of emergency, and the exercise of emergency powers
under Section 17, Article XII. The President would have the power to declare a state of
emergency even without Section 17, Article XII.

At the same time, it should be recognized that PP 1017, on its face and as applied, did
not involve the actual takeover of any public utility or business impressed with public
interest. To some minds, the police action in relation to the Daily Tribune may have
flirted with such power, yet ultimately the newspaper was able to independently publish
without police interference or court injunction. It may be so that since PP 1017 did make
express reference to Section 17, Article XII, but it should be remembered that the
constitutional provision refers to a two-fold power of the State to declare a national
emergency and to take over such utilities and enterprises. The first power under Section
17, Article XII is not distinct from the power of the President, derived from other
constitutional sources, to declare a state of national emergency. Reference to Section
17, Article XII in relation to the power to declare a state of national emergency is
ultimately superfluous. A different situation would obtain though if PP 1017 were
invoked in the actual takeover of a utility or business, and in such case, full
consideration of the import of Section 17, Article XII would be warranted. But no such
situation obtains in this case, and any discussion relating to the power of the State to
take over a utility or business under Section 17, Article XII would ultimately be obiter
dictum.

I respectfully submit that the Court, in these petitions, need not have engaged this
potentially contentious issue, especially as it extends to whether under constitutional
contemplation, the President may act in behalf of the State in exercising the powers
under Section 17, Article XII. Nonetheless, considering that the majority has chosen to
speak out anyway, I will express agreement that as a general rule, the President may
exercise such powers under Section 17, Article XII only under the grant of congressional
approval. Certainly, the notion that congressional authority is required under Section
17, Article XII is not evident from the provision. Even Fr. Bernas notes that Section 17
does not require, as does Article VI, Section 23(2), that the authorization be "by law",
thus leaving the impression that the authorization can come from the President.[37]

After the 1989 coup d'etat, President Aquino issued issued Proclamation No. 503 on 6
December 1989, declaring a state of national emergency, and referring therein to
Section 17, Article XII by citing the entire provision. The declaration was subsequently
reaffirmed by Congress when two weeks after, it enacted Republic Act No. 6826.
Notably, Section 3(3) of the law authorized the President "to temporarily takeover or
direct the operation of any privately-owned public utility or business affected with
public interest that violates the herein declared national policy". Tellingly, however,
such authority was granted by Congress expressly "pursuant to Article VI, Section 23(2)
of the Constitution", and not the take-over provision in Section 17, Article XII. Evidently,
the view that Section 17, Article XII requires prior congressional authority has some
novelty to it.

Still, I concede that it is fundamentally sound to construe Section 17 as requiring

congressional authority or approval before the takeover under the provision may be
effected. After all, the taking over of a privately owned public utility or business affected
with public interest would involve an infringement on the right of private enterprise to
profit; or perhaps even expropriation for a limited period. Constitutionally, the taking of
property can only be accomplished with due process of law,[38] and the enactment of
appropriate legislation prescribing the terms and conditions under which the President
may exercise the powers of the State under Section 17 stands as the best assurance that
due process of law would be observed.

The fact that Section 17 is purposely ambivalent as to whether the President may
exercise the power therein with or without congressional approval leads me to conclude
that it is constitutionally permissible to recognize exceptions, such as in extreme
situations wherein obtention of congressional authority is impossible or inexpedient
considering the emergency. I thus dissent to any proposition that such requirement is
absolute under all circumstances. I maintain that in such extreme situations, the
President may exercise such authority subject to judicial review.

It should be admitted that some emergencies are graver and more imminent than
others. It is not within the realm of impossibility that by reason of a particularly sudden
and grave emergency, Congress may not be able to convene to grant the necessary
congressional authority to the President. Certainly, if bombs from a foreign invader are
falling over Manila skies, it may be difficult, not to mention unnecessarily onerous, to
require convening Congress before the President may exercise the functions under
Section 17, Article XII. The proposition of the majority may be desirable as the general
rule, but the correct rule that should be adopted by the Court should not be so absolute
so as to preclude the exercise by the President of such power under extreme situations.

In response to this argument, the majority cites portions of Araneta v. Dinglasan,

[39]
 most pertinent of which reads: "The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of crisis no
matter how serious."

For one, Araneta did not involve a situation wherein the President attempted to

exercise emergency powers without congressional authority; concerning as it did the
exercise by President Quirino of those emergency powers conferred several years
earlier by Congress to President Quezon at the onset of the Pacific phase of World War
II. The Court therein ruled that the emergency that justified then the extraordinary grant
of powers had since expired, and that there no longer existed any authority on the part
of the President to exercise such powers, notwithstanding that the law, Commonwealth
Act No. 671, "did not in term fix the duration of its effectiveness".

Clearly, the context in which the Court made that observation in Araneta is not the
same context within which my own observations oscillate. My own submission is
premised on the extreme situation wherein Congress may be physically unable to
convene, an exceptional circumstance which the hard-line stance of the majority makes
no concessions for.

Indeed, even the factual milieu recounted in Araneta conceded that such extreme
circumstance could occur, when it noted President Quezon's claim that he was impelled
to call for a special session of the National Assembly after foreseeing that "it was most
unlikely that the Philippine Legislature would hold its next regular session which was to
open on January 1, 1942."[40] That the National Assembly then was able to convene and
pass Commonwealth Act No. 671 was fortunate, but somewhat a luxury nonetheless.
Indeed, it is not beyond the realm of possibility that the emergency contemplated
would be so grave that a sufficient number of members of Congress would be physically
unable to convene and meet the quorum requirement.

Ultimately though, considering that the authorized or actual takeover under Section 17,
Article XII, is not presented as a properly justiciable issue. Nonetheless, and consistent
with the general tenor, the majority has undertaken to decide this non-justiciable issue,
and to even place their view in the dispositive portion in a bid to enshrine it as doctrine.
In truth, the Court's pronouncement on this point is actually obiter. It is hoped that
should the issue become ripe for adjudication before this Court, the obiter is not
adopted as a precedent without the qualification that in extreme situations wherein
congressional approval is impossible or highly impractical to obtain, the powers under
Section 17, Article XII may be authorized by the President.

III.
Overbreadth and "Void for Vagueness"
Doctrines Applicable Not Only To
Free Speech Cases

The majority states that "the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes in free speech cases"[41], and may thus be entertained
"in cases involving statutes which, by their terms, seek to regulate only "spoken words",
and not conduct. A similar characterization is made as to the "void for vagueness"
doctrine, which according to the majority, is "subject to the same principles governing
overbreadth doctrine " also an analytical tool for testing "on their faces" statutes in free
speech cases."[42]

As I noted in my Separate Opinion in Romualdez v. Sandiganbayan,[43] citing Justice

Kapunan, there is a viable distinction between "void for vagueness" and "overbreadth"
which the majority sadly ignores.

A view has been proferred that "vagueness and overbreadth doctrines are not
applicable to penal laws." These two concepts, while related, are distinct from each
other. On one hand, the doctrine of overbreadth applies generally to statutes that
infringe upon freedom of speech. On the other hand, the "void-for-vagueness"
doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional right. (not merely those that regulate speech or other
fundamental constitutional rights.) The fact that a particular criminal statute does not
infringe upon free speech does not mean that a facial challenge to the statute on
vagueness grounds cannot succeed.[44]

The distinction may prove especially crucial since there has been a long line of cases in
American Supreme Court jurisprudence wherein penal statutes have been invalidated
on the ground that they were "void for vagueness." As I cited in Romualdez v.
Sandiganbayan,[45] these cases are Connally v. General Construction Co,. [46] Lanzetta v.
State of New Jersey,[47] Bouie v. City of Columbia,[48] Papachristou v. City of Jacksonville,
[49]
 Kolender v. Lawson,[50] and City of Chicago v. Morales.[51]

Granting that perhaps as a general rule, overbreadth may find application only in "free
speech"[52] cases, it is on the other hand very settled doctrine that a penal statute
regulating conduct, not speech, may be invalidated on the ground of "void for
vagueness". In Romualdez, I decried the elevation of the suspect and radical new
doctrine that the "void for vagueness" challenge cannot apply other than in free speech
cases. My view on this point has not changed, and insofar as the ponencia would hold
otherwise, I thus dissent.

Moreover, even though the argument that an overbreadth challenge can be maintained
only in free speech cases has more jurisprudential moorings, the rejection of the
challenge on that basis alone may prove unnecessarily simplistic. I maintain that there
is an even stronger ground on which the overbreadth and "void for vagueness"
arguments can be refuted ─ that Presidential Proclamation 1017 (PP 1017) neither
creates nor diminishes any rights or obligations whatsoever. In fact, I submit again
that this proposition is the key perspective from which the petitions should be
examined.

IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is generally constitutional.
However, they make an unnecessary distinction with regard to "acts of terrorism",
pointing out that Congress has not yet passed a law defining and punishing terrorism or
acts of terrorism.

That may be the case, but does the majority seriously suggest that the President or the
State is powerless to suppress acts of terrorism until the word "terrorism" is defined by
law? Terrorism has a widely accepted meaning that encompasses many acts already
punishable by our general penal laws. There are several United Nations and multilateral
conventions on terrorism[53], as well as declarations made by the United Nations General
Assembly denouncing and seeking to combat terrorism.[54] There is a general sense in
international law as to what constitutes terrorism, even if no precise definition has been
adopted as binding on all nations. Even without an operative law specifically defining
terrorism, the State already has the power to suppress and punish such acts of
terrorism, insofar as such acts are already punishable, as they almost always are, in our
extant general penal laws. The President, tasked with the execution of all existing laws,
already has a sufficient mandate to order the Armed Forces to combat those acts of
terrorism that are already punishable in our Revised Penal Code, such as rebellion, coup
d'etat, murder, homicide, arson, physical injuries, grave threats, and the like. Indeed,
those acts which under normal contemplation would constitute terrorism are associated
anyway with or subsumed under lawless violence, which is a term found in the
Constitution itself. Thus long ago, the State has already seen it fit to punish such acts.

Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal
acts, since such power belongs to the legislative alone. Fortunately, General Order No. 5
does not assume to make such redefinitions. It may have been a different matter had
General Order No. 5 attempted to define "acts of terrorism" in a manner that would
include such acts that are not punished under our statute books, but the order is not
comported in such a way. The proper course of action should be to construe "terrorism"
not in any legally defined sense, but in its general sense. So long as it is understood that
"acts of terrorism" encompasses only those acts which are already punishable under our
laws, the reference is not constitutionally infirm.

The majority cites a theoretical example wherein a group of persons engaged in a

drinking spree may be arrested by the military or police in the belief that they were
committing acts of terrorism pursuant to General Order No. 5. Under the same logical
framework that group of persons engaged in a drinking spree could very well be
arrested by the military or police in the belief that they are committing acts of lawless
violence pursuant to General Order No. 5, instead of acts of terrorism. Obviously such
act would be "abuse and oppression" on the part of the military and the police, whether
justified under "lawless violence" or "acts of terrorism". Yet following the logic of the
majority, the directive to prevent acts of "lawless violence" should be nullified as well.
If the point of the majority is that there are no justiciable standards on what constitutes
acts of terrorism, it should be pointed out that only the following scenarios could ensue.
For one, a person would actually be arrested and charged with "acts of terrorism", and
such arrest or charge would be thrown out of the courts, since our statute books do not
criminalize the specific crime of terrorism. More probably, a person will be arrested and
charged for acts that may under the layperson's contemplation constitutes acts of
terrorism, but would be categorized in the information and charge sheet as actual
crimes under our Revised Penal Code. I simply cannot see how General Order No. 5
could validate arrests and convictions for non-existent crimes.

Interestingly, the majority, by taking issue with the lack of definition and possible broad
context of "acts of terrorism", seems to be positively applying the arguments of
"overbreadth" or "void for vagueness", arguments which they earlier rejected as
applicable only in the context of free expression cases. The inconsistency is breath-
taking. While I disagree with the majority-imposed limitations on the applicability of the
"overbreadth" or "void for vagueness" doctrines, I likewise cannot accede to the
application of those doctrines in the context of General Order No. 5, for the same
reason that they should not apply to PP 1017. Neither General Order No. 5 nor PP 1017
is a penal statute, or have an operative legal effect of infringing upon liberty, expression
or property. As such, neither General Order No. 5 nor PP 1017 can cause the deprivation
of life, liberty or property, thus divorcing those issuances from the context of the due
process clause. The same absence of any binding legal effect of these two issuances
correspondingly disassociates them from the constitutional infringement of free
expression or association. Neither "void for vagueness" nor "overbreadth" therefore lie.

Another point. The majority concludes from General Order No. 5 that the military or
police is limited in authority to perform those acts that are "necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence,"
and such acts committed beyond such authority are considered illegal. I do not dispute
such conclusion, but it must be emphasized that "necessary and appropriate actions and
measures" precisely do not authorize the military or police to commit unlawful and
unconstitutional acts themselves, even if they be geared towards suppressing acts of
terrorism or lawless violence. Indeed, with the emphasis that PP 1017 does not create
new rights or obligations, or diminish existing ones, it necessarily follows that General
Order No. 5, even if premised on a state of emergency, cannot authorize the military
or police to ignore or violate constitutional or statutory rights, or enforce laws
completely alien to the suppression of lawless violence. Again, following the cardinal
principle of legal hermeneutics earlier adverted to, General Order No. 5 should be
viewed in harmony with the Constitution, and only if it the Order irreconcilably deviates
from the fundamental law should it be struck down.
 V.
Court Should Refrain Making Any
Further Declaration, For Now,
Relating to the Individual Grievances
Raised by the Petitioners in Relation
To PP 1017

I respectfully disagree with the manner by which the majority would treat the "void as
applied" argument presented by the petitioners. The majority adopts the tack of citing
three particular injuries alleged by the petitioners as inflicted with the implementation
of PP 1017. The majority analyzes the alleged injuries, correlates them to particular
violations of the Bill of Rights, and ultimately concludes that such violations were illegal.

The problem with this approach is that it would forever deem the Court as a trier or
reviewer at first instance over questions involving the validity of warrantless arrests,
searches, seizures and the dispersal of rallies, all of which entail a substantial level of
factual determination. I agree that PP 1017 does not expand the grounds for
warrantless arrests, searches and seizures or dispersal of rallies, and that the
proclamation cannot be invoked before any court to assert the validity of such
unauthorized actions. Yet the problem with directly adjudicating that the injuries
inflicted on David, et al., as illegal, would be that such would have been done with
undue haste, through an improper legal avenue, without the appropriate trial of facts,
and without even impleading the particular officers who effected the
arrests/searches/seizures.

I understand that the injurious acts complained of by the petitioners upon the
implementation of PP 1017 are a source of grave concern. Indubitably, any person
whose statutory or constitutional rights were violated in the name of PP 1017 or
General Order No. 5 deserves redress in the appropriate civil or criminal proceeding,
and even the minority wishes to makes this point as emphatically clear, if not moreso, as
the majority. Yet a ruling from this Court, without the proper factual basis or prayer
for remuneration for the injury sustained, would ultimately be merely symbolic. While
the Court will not be harmed by a symbolic reaffirmation of commitment to the
principles in the Bill of Rights, it will be harmed by a ruling that unduly and
inappropriately expands the very limited function of the Court as a trier of facts on
first instance.

In my dissent in Teves v. Sandiganbayan,[55] I alluded to the fact that our legal system
may run counter-intuitive in the sense that the seemingly or obviously guilty may still,
after trial, be properly acquitted or exonerated; to the extent that even an accused who
murders another person in front of live television cameras broadcast to millions of sets
is not yet necessarily guilty of the crime of murder or homicide.[56] Hence, the necessity
of a proper trial so as to allow the entire factual milieu to be presented, tested and
evaluated before the court. In my theoretical example, the said accused should
nonetheless be acquitted if the presence of exempting circumstances is established. The
same principle applies in these cases. Certainly, we in the Court can all agree that PP
1017 cannot be invoked to justify acts by the police or military officers that go beyond
the Constitution and the laws. But the course of prudence dictates that the
pronouncement of such a doctrine, while enforceable in a court of law, should not yet
extend itself to specific examples that have not yet been properly litigated. The function
of this Court is to make legal pronouncements not based on "obvious" facts, but on
proven facts.

A haphazard declaration by the Court that the arrests or seizures were "illegal" would
likewise preclude any meaningful review or reevaluation of pertinent legal doctrines
that otherwise could have been reexamined had these acts been properly challenged in
regular order. For example, the matter of the warrantless arrests in these cases could
have most certainly compelled the Court to again consider the doctrine laid down
in Umil v. Ramos on warrantless arrests and rebellion as a continuing crime, a doctrine
that may merit renewed evaluation. Yet any healthy reexamination of Umil, or other
precedents for that matter, require the presentation and trial of the proper factual
predicates, a course which the majority unfortunately "short-cuts" in this present
decision.

Of course, despite the grandiloquent pronouncement by the majority that the acts
complained of by the petitioners and implemented pursuant to General Order No. 5 are
illegal, it could nonetheless impose civil, criminal or administrative sanctions on the
individual police officers concerned, as these officers had not been "individually
identified and given their day in court". Of course, the Court would be left with pie on its
face if these persons, once "given their day in court", would be able to indubitably
establish that their acts were actually justified under law. Perhaps worse, the
pronouncement of the majority would have had the effect of prejudging these cases, if
ever lodged, even before trial on the merits.

Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot
justify violation of statutory or constitutional rights (a declaration which the minority
would have no qualms assenting to) would sufficiently arm those petitioners and other
persons whose rights may have been injured in the implementation of PP 1017, with an
impeccable cause of action which they could pursue against the violators before the
appropriate courts. At the same time, if the officers or officials concerned have basis to
contend that no such rights were violated, for justifications independent of PP 1017 or
General Order No. 5, such claims could receive due consideration before the courts.
Such a declaration would squarely entrench the Court as a defender of the Bill of Rights,
foster enforceable means by which the injured could seek actual redress for the injury
sustained, and preserve the integrity and order of our procedural law.
 VI.
Conclusion

The country-wide attention that the instant petitions have drawn should not make the
Court lose focus on its principal mission, which is to settle the law of the case. On the
contrary, the highly political nature of these petitions should serve as forewarning for
the Court to proceed ex abundante cautelam, lest the institution be unduly dragged into
the partisan mud. The credibility of the Court is ensured by making decisions in
accordance with the Constitution without regard to the individual personalities
involved; with sights set on posterity, oblivious of the popular flavor of the day.

By deciding non-justiciable issues and prejudging cases and controversies without a

proper trial on the merits, the majority has diminished the potency of this Court's
constitutional power in favor of rhetorical statements that afford no quantifiable relief.
It is for the poet and the politician to pen beautiful paeans to the people's rights and
liberties, it is for the Court to provide for viable legal means to enforce and safeguard
these rights and liberties. When the passions of these times die down, and sober
retrospect accedes, the decision of this Court in these cases will be looked upon as an
extended advisory opinion.

Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those
interested and tasked with preserving our civil liberties. They may even stand, in the
appropriate contexts, as viable partisan political issues. But the plain fact remains that,
under legal contemplation, these issuances are valid on their face, and should result in
no constitutional or statutory breaches if applied according to their letter.

I vote to DISMISS all the petitions.

[1] 
G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.

[2]
 R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.

[3] 
"When a statute is reasonably susceptible of two constructions, one constitutional and
the other unconstitutional, that construction in favor of its constitutionality shall be
adopted and the construction that will render it invalid rejected." See R. Agpalo, id., at
266; citing Mutuc v. COMELEC, G.R. No. 32717, Nov. 26, 1970, 36 SCRA 228; J.M. Tuason
& Co., Inc. v. Land Tenure Adm., G.R. No. 21064, Feb. 18, 1970, 31 SCRA 413; American
Bible Society v. City of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil. 683
(1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Exploration, Inc. v.
Department of Agriculture and Natural Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA
285 (1977); De la Cruz v. Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
[4] 
See Constitution, Section 17, Article VII.

[5]
 See Constitution, Section 18, Article VII.

[6]
 See Constitution, Section 1, Article VII.

[7]
 The plenary legislative power being vested in Congress. See Constitution, Section 1,
Article VI.

[8] 
"[The President] shall ensure that the laws be faithfully executed." See Constitution,
Section 17, Article VII.

[9]
 Supra note 4.

[10]
 "No officer or employee of the civil service shall be removed or suspended except for
cause provided by law." See Constitution, Section 2(3), Article IX-B.

[11]
 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760, 763.

[12]
 See Administrative Code, Section 4, Chapter 2, Book III.

[13]
 See Section 18, Article VII, Constitution.

[14]
 392 Phil. 618 (2000)

[15]
 Id. at 627.

[16]
 Id. at 644.

[17]
 Id. at 636.

[18]
 Id. at 643.

[19] 
Id.

[20]
  Sanlakas v. Executive Secretary, supra note 1, at 668.

[21]
 Id. at 677.

[22]
 Supra note 8.

[23] 
The declaration of martial law then within the President to make under authority of
Section 10(2), Article VII of the 1935 Constitution.
[24] 
No. L-35546, 17 September 1974, 59 SCRA 183.

[25]
 Aquino, Jr. v. Enrile, id. at 240-241.

[26]
 Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.

[27]
 Id. at 398-399, Barredo, J., concurring.

[28]
Id. at 405-406, Barredo, J., concurring.

[29] 
Id. at 423, Barredo, J., concurring.

[30]
 Constitution, Section 18, Article VII.

[31]
 Constitution, Section 18, Article VII.

[32]
 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.

[33]
 See R. Agpalo, Statutory Construction, p. 206.

[34]
 343 U.S. 579, 653-654, J. Jackson, concurring.

[35]
 Ibid.

[36]
 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., at 119-
120.

[37]
 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 2003 ed., at 1183.

[38]
 See Section 1, Article III, Constitution.

[39]
 84 Phil. 368 (1949).

[40]
 Id. at 379.

[41]
 Decision, infra.

[42]
 Id.

[43]
 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
[44]
 Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan, dissenting, at
pp. 382-384.

[45]
 Id., at 398-401.

[46]
 269 U.S. 385, 393 (1926).

[47]
 306 U.S. 451 (1939).

[48]
 378 U.S. 347 (1964).

[49]
 405 U.S. 156 (1972).

[50]
 461 U.S. 352 (1983).

[51]
 Case No. 97-1121, 10 June 1999.

[52]
 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme Court
invalidated a portion of the Subversive Control Activities Act on the ground of
overbreadth as it sought to proscribe the exercise the right of free association, also
within the First Amendment of the United States Constitution but a distinct right
altogether from free expression.

[53]
 To name a few, the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents (1973); International
Convention for the Suppression of Terrorist Bombings (1997); International Convention
for the Suppression of the Financing of Terrorism (1999); the International Convention
for the Suppression of Acts of Nuclear Terrorism (2005). See "United Nations Treaty
Collection - Conventions on Terrorism", http://untreaty.un.org/English/Terrorism.asp
(last visited, 30 April 2006).

[54]
 See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assembly on
17 February 1995.

[55]
 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga, dissenting.

[56] 
Id. at 345.

CONCURRING OPINION

YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of men's minds.

-Harold J. Laski, Professor of Government and Member of the British Labor Party, in his
book, Authority in the Modern State (1919).

The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin
Cardozo once wrote, are preserved against the assaults of opportunism, the expediency
of the passing hour, the erosion of small encroachments, the scorn and derision of those
who have no patience with general principles.[1] In an open and democratic society,
freedom of thought and expression is the matrix, the indispensable condition, of nearly
every other form of freedom.[2]

I share the view that Presidential Proclamation No. 1017 (PP 1017) under which
President Gloria Macapagal Arroyo declared a state of national emergency, and General
Order No. 5 (GO No. 5), issued by the President pursuant to the same proclamation are
both partly unconstitutional.

I fully agree with the pronouncement that PP 1017 is no more than the exercise by the
President, as the Commander-in-Chief of all armed forces of the Philippines, of her
power to call out such armed forces whenever it becomes necessary to prevent or
suppress lawless violence, invasion or rebellion. This is allowed under Section 18,
Article VII of the Constitution.

However, such "calling out" power does not authorize the President to direct the armed
forces or the police to enforce laws not related to lawless violence, invasion or rebellion.
The same does not allow the President to promulgate decrees with the force and effect
similar or equal to laws as this power is vested by the Constitution with the legislature.
Neither is it a license to conduct searches and seizures or arrests without warrant
except in cases provided in the Rules of Court. It is not a sanction to impose any form of
prior restraint on the freedom of the press or expression or to curtail the freedom to
peaceably assemble or frustrate fundamental constitutional rights.

In the case of Bayan v. Ermita[3] this Court thru Justice Adolfo S. Azcuna emphasized 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. These rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and
unprotected.

On the other hand, the direct reference to Section 17, Article XII of the Constitution as
the constitutional basis for the declaration of a state of national emergency is
misplaced. This provision can be found under the article on National Economy and
Patrimony which presupposes that "national emergency" is of an economic, and not
political, nature. Moreover, the said provision refers to the temporary takeover by the
State of any privately-owned public utility or business affected with public interest in
times of national emergency. In such a case, the takeover is authorized when the public
interest so requires and subject to "reasonable terms" which the State may prescribe.

The use of the word "State" as well as the reference to "reasonable terms" under
Section 17, Article XII can only pertain to Congress. In other words, the said provision is
not self-executing as to be validly invoked by the President without congressional
authorization. The provision merely declares a state economic policy during times of
national emergency. As such, it cannot be taken to mean as authorizing the President to
exercise "takeover" powers pursuant to a declaration of a state of national emergency.

The President, with all the powers vested in her by Article VII, cannot arrogate unto
herself the power to take over or direct the operation of any privately owned public
utility or business affected with public interest without Congressional authorization. To
do so would constitute an ultra vires act on the part of the Chief Executive, whose
powers are limited to the powers vested in her by Article VII, and cannot extend to
Article XII without the approval of Congress.

Thus, the President's authority to act in times of national emergency is still subject to
the limitations expressly prescribed by Congress. This is a featured component of the
doctrine of separation of powers, specifically, the principle of checks and balances as
applicable to the political branches of government, the executive and the legislature.

With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the

armed forces and the national police "to prevent and suppress acts of terrorism and
lawless violence in the country." There is presently no law enacted by Congress that
defines terrorism, or classifies what acts are punishable as acts of terrorism. The notion
of terrorism, as well as acts constitutive thereof, is at best fraught with ambiguity. It is
therefore subject to different interpretations by the law enforcement agencies.

As can be gleaned from the facts, the lack of a clear definition of what constitutes
"terrorism" have led the law enforcement officers to necessarily guess at its meaning
and differ as to its application giving rise to unrestrained violations of the fundamental
guarantees of freedom of peaceable assembly and freedom of the press.

In Kolender v. Lawson,[4] the United States Supreme Court nullified a state statute

requiring persons who loitered or wandered on streets to provide "credible and
reliable" identification and to account for their presence when requested to do so by a
police officer. Writing for the majority, Justice Sandra Day O'Connor noted that the most
important aspect of vagueness doctrine was the imposition of guidelines that prohibited
arbitrary, selective enforcement on constitutionally suspect basis by police officers. This
rationale for invocation of that doctrine was of special concern in this case because of
the potential for arbitrary suppression of the fundamental liberties concerning freedom
of speech and expression, as well as restriction on the freedom of movement.

Thus, while I recognize that the President may declare a state of national emergency as
a statement of a factual condition pursuant to our ruling in Sanlakas v. Executive
Secretary,[5] I wish to emphasize that the same does not grant her any additional
powers. Consequently, while PP 1017 is valid as a declaration of a factual condition, the
provisions which purport to vest in the President additional powers not theretofore
vested in her must be struck down. The provision under GO No. 5 ordering the armed
forces to carry out measures to prevent or suppress "acts of terrorism" must be
declared unconstitutional as well.

Finally, it cannot be gainsaid that government action to stifle constitutional liberties

guaranteed under the Bill of Rights cannot be preemptive in meeting any and all
perceived or potential threats to the life of the nation. Such threats must be actual, or at
least gravely imminent, to warrant government to take proper action. To allow
government to preempt the happening of any event would be akin to "putting the cart
before the horse," in a manner of speaking. State action is proper only if there is a clear
and present danger of a substantive evil which the state has a right to prevent. We
should bear in mind that in a democracy, constitutional liberties must always be
accorded supreme importance in the conduct of daily life. At the heart of these liberties
lies freedom of speech and thought - not merely in the propagation of ideas we love,
but more importantly, in the advocacy of ideas we may oftentimes loathe. As succinctly
articulated by Justice Louis D. Brandeis:

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x
It is the function of speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to 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 But even advocacy of violation, however
reprehensible morally, is not a justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy and incitement, between
preparation and attempt, between assembling and conspiracy, must be borne in mind.
In order to support a finding of clear and present danger it must be shown either that
immediate serious violence was to be expected or was advocated, or that the past
conduct furnished reason to believe that such advocacy was then contemplated.[6]

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.

[1]
 Cardozo, B. Nature of Judicial Process, 1921.

[2]
 Palko v. State of Connecticut, 302 U.S. 319 (1937).
[3]
 G.R. Nos. 169838, 169848, 169881, April 25, 2006.

[4]
 461 U.S. 352 (1983).

[5]
 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.

[6]
 Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357
(1927).

Source: Supreme Court E-Library | Date created: September 03, 2014

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Supreme Court E-Library

b.  Disini vs. Secretary of Justice, February 11, 2014

727 Phil. 28

EN BANC

[ G.R. No. 203335, February 18, 2014 ]

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
AND ERNESTO SONIDO, JR., PETITIONERS, VS. THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE AND THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

[G.R. No. 203299]

LOUIS “BAROK” C. BIRAOGO, PETITIONER, VS. NATIONAL BUREAU OF INVESTIGATION

AND PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203306]ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN

MOVEMENT, INC., JERRY S. YAP, BERTENI “TOTO” CAUSING, HERNANI Q. CUARE,
PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN
CASTRO, ET AL., PETITIONERS, VS. OFFICE OF THE PRESIDENT, REPRESENTED BY
PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE PHILIPPINES, AND HOUSE
OF REPRESENTATIVES, RESPONDENTS.

[G.R. No. 203359]

SENATOR TEOFISTO DL GUINGONA III, PETITIONER, VS. EXECUTIVE SECRETARY, THE

SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND
 DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

[G.R. No. 203378]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H.

HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, PETITIONERS, VS.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE
NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, RESPONDENTS.

[G.R. No. 203391]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL.,
PETITIONERS, VS. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY
AND ALTER-EGO OF PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER
CAPACITY AS SECRETARY OF JUSTICE, RESPONDENTS.

[G.R. No. 203407]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

NATIONAL ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS
OF THE PHILIPPINES, ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO,
CRISTINA E. PALABAY, SECRETARY GENERAL OF KARAPATAN, FERDINAND R. GAITE,
CHAIRPERSON OF COURAGE, JOEL B. MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS
PARTY-LIST, LANA R. LINABAN, SECRETARY GENERAL GABRIELA WOMEN’S PARTY,
ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA MATIBAG, PETITIONERS, VS.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, SECRETARY OF THE DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE,
EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, NONNATUS CAESAR R. ROJAS, DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, D/GEN. NICANOR A. BARTOLOME, CHIEF OF THE PHILIPPINE
NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. No. 203440]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF
THE ATENEO HUMAN RIGHTS CENTER), PETITIONERS, VS. HONORABLE PAQUITO
OCHOA IN HIS CAPACITY AS EXECUTIVE SECRETARY, HONORABLE LEILA DE LIMA IN
HER CAPACITY AS SECRETARY OF JUSTICE, HONORABLE MANUEL ROXAS IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
 GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE DEPARTMENT OF
GOVERNMENT), RESPONDENTS.

[G.R. No. 203453]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-
TO-RA10175/, PETITIONERS, VS. THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND
ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING
UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO. 10175, RESPONDENTS.

[G.R. No. 203454]

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, PETITIONERS, VS. THE HON.
SECRETARY OF JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

[G.R. No. 203469]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; AND PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; PETITIONERS, VS. HIS
EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY HON. JUAN
PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES,
REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES; HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS
EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF
JUSTICE; HON. LOUIS NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS EXECUTIVE
DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; HON.
NONNATUS CAESAR R. ROJAS, IN HIS CAPACITY AS DIRECTOR, NATIONAL BUREAU OF
INVESTIGATION; AND P/DGEN. NICANOR A. BARTOLOME, IN HIS CAPACITY AS CHIEF,
PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203501]

PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. HIS EXCELLENCY BENIGNO S.

 AQUINO III, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; HON. PAQUITO N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE
SECRETARY; HON. LEILA M. DE LIMA, IN HER OFFICIAL CAPACITY AS SECRETARY OF
JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE
DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS
CAESAR R. ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL BUREAU
OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A. BARTOLOME, IN HIS
OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. No. 203509]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, PETITIONER, VS. THE

EXECUTIVE SECRETARY PAQUITO OCHOA, JR., RESPONDENT.

[G.R. No. 203515]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D.

ANTIPORDA IN HIS CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY,
PETITIONER, VS. OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT
OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES
WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, RESPONDENTS.

[G.R. No. 203518]

PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO
LAKAS NG MASA, REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO,
MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG,
ANA ALEXANDRA C. CASTRO, PETITIONERS, VS. THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, RESPONDENTS.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
 The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings
from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks,
stock exchanges, trade houses, credit card companies, public utilities, hospitals, and
schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous

and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to
the need of the current generation for greater information and facility of
communication. But all is not well with the system since it could not filter out a number
of persons of ill will who would want to use cyberspace technology for mischiefs and
crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him
that people can read.

And because linking with the internet opens up a user to communications from others,
the ill-motivated can use the cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or defrauding him through false
representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this
reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to
the computer systems and networks of indispensable or highly useful institutions as well
as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has
the duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5,
2013 the Court extended the original 120-day temporary restraining order (TRO) that it
earlier issued on October 9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime

law that regard certain acts as crimes and impose penalties for their commission as well
as provisions that would enable the government to track down and penalize violators.
These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

 t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and
362 of the RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without
right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and should
thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,[1]  useful  in  determining  the constitutionality of laws that tend to target a
class of things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect such
interest.[2] Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection.[3]

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable act – accessing the computer
system of another without right. It is a universally condemned conduct.[4]

Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate the
target system’s security and report back to the owners the vulnerabilities they found in
it and give instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to verify its
bookkeeping records.[5]

Besides, a client’s engagement of an ethical hacker requires an agreement between

them as to the extent of the search, the methods to be used, and the systems to be
tested. This is referred to as the “get out of jail free card.”[6] Since the ethical hacker
does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or

deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally

subject to state regulation, may not be achieved by means that unnecessarily sweep its
subject broadly, thereby invading the area of protected freedoms.[7] But Section 4(a)(3)
does not encroach on these freedoms at all. It simply punishes what essentially is a form
of vandalism,[8] the act of willfully destroying without right the things that belong to
others, in this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect [9] or the fear of possible prosecution that hangs on the heads of citizens
who are minded to step beyond the boundaries of what is proper. But to prevent the
State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.[10] Here, the
chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes
the evil that it seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving
that under no set of circumstances will Section 4(a)(3) be valid.[11] Petitioner has failed to
discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to
profit, mislead, destroy the reputation, and deprive others from registering the same, if
such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause[12] in that, not being narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named “Julio Gandolfo,” the law would punish for cyber-
squatting both the person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it happens to be his real
name. Petitioners claim that, considering the substantial distinction between the two,
the law should recognize the difference.

But there is no real difference whether he uses “Julio Gandolfo” which happens to be his
real name or use it as a pseudo-name for it is the evil purpose for which he uses the
name that the law condemns. The law is reasonable in penalizing him for acquiring the
domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge
to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
and to privacy and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures.[13] But the Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,[14] it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the “Zones of
Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon”[15] the relevance of these zones to the right
to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a “constitutional right” and “the right most valued
by civilized men,” but also from our adherence to the Universal Declaration of Human
Rights which mandates that, “no one shall be subjected to arbitrary interference with
his privacy” and “everyone has the right to the protection of the law against such
interference or attacks.”
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches[16] and seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and correspondence.[17]

In assessing the challenge that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.[18]

The usual identifying information regarding a person includes his name, his citizenship,
his residence address, his contact number, his place and date of birth, the name of his
spouse if any, his occupation, and similar data.[19] The law punishes those who acquire or
use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the right to due process of
law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not
hold water since the specific conducts proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a person
in the news to secure information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft
of identity information must be intended for an illegitimate purpose. Moreover,
acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through
the overt acts of the offender, and it may be presumed from the furtive taking of useful
property pertaining to another, unless special circumstances reveal a different intent on
the part of the perpetrator.[20] As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.[21] They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when done “for favor” in
cyberspace. In common usage, the term “favor” includes “gracious kindness,” “a special
privilege or right granted or conceded,” or “a token of love (as a ribbon) usually worn
conspicuously.”[22] This meaning given to the term “favor” embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These deliberations
show a lack of intent to penalize a “private showing x x x between and among two
private persons x x x although that may be a form of obscenity to some.”[23] The
understanding of those who drew up the cybercrime law is that the element of
“engaging in a business” is necessary to constitute the illegal cybersex.[24] The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor
and consideration. This includes interactive prostitution and pornography, i.e., by
webcam.[25]

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—

is not novel. Article 201 of the RPC punishes “obscene publications and exhibitions and
indecent shows.” The Anti-Trafficking in Persons Act of 2003 penalizes those who
“maintain or hire a person to engage in prostitution or pornography.”[26] The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.[27]

The case of Nogales v. People[28] shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography.[29] The Court weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating
the bounds of obscenity.[30] The Court will not declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as
Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the penalty to be imposed shall be (1)
one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of
2009[31] (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents
the government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition of child pornography
already embraces the use of “electronic, mechanical, digital, optical, magnetic or any
other means.” Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is rational basis for such higher penalty.
[32]
 The potential for uncontrolled proliferation of a particular piece of child pornography
when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to
“produce, direct, manufacture or create any form of child pornography”[33] clearly
relates to the prosecution of persons who aid and abet the core offenses that ACPA
seeks to punish.[34] Petitioners are wary that a person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is not criminally liable for producing child
pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality of
Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial

electronic communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa)   The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;

(bb)   The commercial electronic communication does not purposely disguise the source
of the electronic message; and

(cc)   The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial communications, also
known as “spam.” The term “spam” surfaced in early internet chat rooms and
interactive fantasy games. One who repeats the same sentence or comment was said to
be making a “spam.” The term referred to a Monty Python’s Flying Circus scene in which
actors would keep saying “Spam, Spam, Spam, and Spam” when reading options from a
menu.[35]
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and
network capacities of internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s privacy since the person sending out
spams enters the recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the “efficiency of computers.” Secondly, people, before the arrival of the age of
computers, have already been receiving such unsolicited ads by mail. These have never
been outlawed as nuisance since people might have interest in such ads. What matters
is that the recipient has the option of not opening or reading these mail ads. That is true
with spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.[36] The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as
well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be

malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of

writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished
by prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to
form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code[37] and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of “presumed malice”
even when the latest jurisprudence already replaces it with the higher standard of
“actual malice” as a basis for conviction.[38] Petitioners argue that inferring “presumed
malice” from the accused’s defamatory statement by virtue of Article 354 of the penal
code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken
down as unconstitutional for otherwise good jurisprudence requiring “actual malice”
could easily be overturned as the Court has done in Fermin v. People[39] even where the
offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed;
and (d) existence of malice.[40]

There is “actual malice” or malice in fact[41] when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it
was false or not.[42] The reckless disregard standard used here requires a high degree of
awareness of probable falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts as to the truth of the
statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.[43]

The prosecution bears the burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of absence of actual
malice, even when the statement turns out to be false, is available where the offended
party is a public official or a public figure, as in the cases of Vasquez (a barangay official)
and Borjal (the Executive Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of
“malice” to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full
discussion of public affairs.[44]

Parenthetically, the Court cannot accept the proposition that its ruling
in Fermin disregarded the higher standard of actual malice or malice in fact when it
found Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily, not
only was there malice in law, the article being malicious in itself, but there was also
malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities, when it
modified the penalty of imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove
the presence of malice. The law explicitly presumes its existence (malice in law) from
the defamatory character of the assailed statement.[45] For his defense, the accused
must show that he has a justifiable reason for the defamatory statement even if it was
in fact true.[46]

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act
violate the country’s obligations under the International Covenant of Civil and Political
Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,[47] the United
Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect
that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361 recognizes
truth as a defense but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is
true, and, moreover, that it was published with good motives and for justifiable ends,
the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall
not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression.[48] Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.[49]

The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes “similar means” for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel were enacted. The culture
associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.

[50]
 In a sense, they are a world apart in terms of quickness of the reader’s reaction to
defamatory statements posted in cyberspace, facilitated by one-click reply options
offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to
defamatory statement posted on the internet constitute aiding and abetting libel, acts
that Section 5 of the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of the
offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of
“netizens,” the multitude that avail themselves of the services of the internet. He points
out that existing laws and jurisprudence sufficiently delineate the meaning of “aiding or
abetting” a crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement agencies in
enforcing the law.[51] The legislature is not required to define every single word
contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws.
When a person aids or abets another in destroying a forest,[52] smuggling merchandise
into the country,[53] or interfering in the peaceful picketing of laborers,[54] his action is
essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and
human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight
is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users.[55] Based on a
recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social
networking.[56] Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.[57]

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch.[58] Users register at
this site, create a personal profile or an open book of who they are, add other users as
friends, and exchange messages, including automatic notifications when they update
their profile.[59] A user can post a statement, a photo, or a video on Facebook, which can
be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons of
preferences on the program’s screen such as “Like,” “Comment,” or “Share.” “Like”
signifies that the reader likes the posting while “Comment” enables him to post online
his feelings or views about the same, such as “This is great!” When a Facebook user
“Shares” a posting, the original “posting” will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service
that enables its users to send and read short text-based messages of up to 140
characters. These are known as “Tweets.” Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text, pictures, links, short
videos, or other media—on the internet. Instead of friends, a Twitter user has
“Followers,” those who subscribe to this particular user’s posts, enabling them to read
the same, and “Following,” those whom this particular user is subscribed to, enabling
him to read their posts. Like Facebook, a Twitter user can make his tweets available only
to his Followers, or to the general public. If a post is available to the public, any Twitter
user can “Retweet” a given posting. Retweeting is just reposting or republishing another
person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer
used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.[60] Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married
public official has an illicit affair with a movie star. Linda, one of Maria’s friends who
sees this post, comments online, “Yes, this is so true! They are so immoral.” Maria’s
original post is then multiplied by her friends and the latter’s friends, and down the line
to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and
Linda, comes across this blog, finds it interesting and so shares the link to this
apparently defamatory blog on her Twitter account. Nena’s “Followers” then “Retweet”
the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original
tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A lot of them even press the
Share button, resulting in the further spread of the original posting into tens, hundreds,
thousands, and greater postings.

The question is: are online postings such as “Liking” an openly defamatory statement,
“Commenting” on it, or “Sharing” it with others, to be regarded as “aiding or abetting?”
In libel in the physical world, if Nestor places on the office bulletin board a small poster
that says, “Armand is a thief!,” he could certainly be charged with libel. If Roger, seeing
the poster, writes on it, “I like this!,” that could not be libel since he did not author the
poster. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that
be libel? No, for he merely expresses agreement with the statement on the poster. He
still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the “Like,”
“Comment,” and “Share” reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding “Friends” or “Followers” in the criminal charge to be filed in
court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a
round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,[61] a case involving the constitutionality of the Communications Decency
Act of 1996. The law prohibited (1) the knowing transmission, by means of a
telecommunications device, of “obscene or indecent” communications to any recipient
under 18 years of age; and (2) the knowing use of an interactive computer service to
send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or
describe, in terms “patently offensive” as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed
and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a
matter of special concern for two reasons. First, the CDA is a content-based regulation
of speech. The vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than
those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great

threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA’s
burden on protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad news.
Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area of protected
freedoms.[62]

If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement.[63] The terms “aiding or abetting” constitute
broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.[64] Hence, Section 5 of the cybercrime
law that punishes “aiding or abetting” libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections,[65] “we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech.”

In an “as applied” challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground – absence of due process, lack of fair notice,
lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the statute based solely on the violation of
the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.[66]

But this rule admits of exceptions. A petitioner may for instance mount a “facial”
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The rationale for this exception is to counter
the “chilling effect” on protected speech that comes from statutes violating free speech.
A person who does not know whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.[67]

As already stated, the cyberspace is an incomparable, pervasive medium of

communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given “fair notice” or warning as to what is
criminal conduct and what is lawful conduct. When a case is filed, how will the court
ascertain whether or not one netizen’s comment aided and abetted a cybercrime while
another comment did not?

Of course, if the “Comment” does not merely react to the original posting but creates an
altogether new defamatory story against Armand like “He beats his wife and children,”
then that should be considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of defamatory publications.
Make no mistake, libel destroys reputations that society values. Allowed to cascade in
the internet, it will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.

In regard to the crime that targets child pornography, when “Google procures, stores,
and indexes child pornography and facilitates the completion of transactions involving
the dissemination of child pornography,” does this make Google and its users aiders and
abettors in the commission of child pornography crimes?[68] Byars highlights a feature in
the American law on child pornography that the Cybercrimes law lacks—the exemption
of a provider or notably a plain user of interactive computer service from civil liability
for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher
or speaker of any information provided by another information content provider and
cannot be held civilly liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.[69]
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing accomplice
to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In this
way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.[70] As the source
of this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises

apprehension on the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.[71] In the absence of
legislation tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason
not objectionable. A hacker may for instance have done all that is necessary to illegally
access another party’s computer system but the security employed by the system’s
lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor
is alerted.[72] If Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password could not file a
complaint against him for attempted hacking. But this is not right. The hacker should not
be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.[73] While this may be true with respect to cybercrimes that tend to sneak past
the area of free expression, any attempt to commit the other acts specified in Section
4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors
aiding and abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.
Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction
between crimes committed through the use of information and communications
technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims
or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine
that a single set of acts may be prosecuted and penalized simultaneously under two
laws, a special law and the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is
not an essential element of the other.[74] With the exception of the crimes of online libel
and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in fact one and the same offense. Indeed,
the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer
system as another means of publication.[75] Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.[76]

The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPA’s scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s definition of child pornography in fact already covers the
use of “electronic, mechanical, digital, optical, magnetic or any other means.” Thus,
charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in
Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a
maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished
with imprisonment of prision mayor or a fine of not more than Five hundred thousand
pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of
this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or
the “Anti-Child Pornography Act of 2009:” Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3)
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be
punished with imprisonment one (1) degree lower than that of the prescribed penalty
for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but
not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime.[77] Judges and
magistrates can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department. The courts should not
encroach on this prerogative of the lawmaking body.[78]

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due
cause, shall be authorized to collect or record by technical or electronic means traffic
data in real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide opportunities
for official abuse. They claim that data showing where digital messages come from,
what kind they are, and where they are destined need not be incriminating to their
senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the
messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since
a law may require the disclosure of matters normally considered private but then only
upon showing that such requirement has a rational relation to the purpose of the law,
[79]
 that there is a compelling State interest behind the law, and that the provision itself
is narrowly drawn.[80] In assessing regulations affecting privacy rights, courts should
balance the legitimate concerns of the State against constitutional guarantees.[81]

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public good.
[82]
 To do this, it is within the realm of reason that the government should be able to
monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a
part, aims to provide law enforcement authorities with the power they need for
spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting
is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention
on Cybercrimes requires signatory countries to adopt legislative measures to empower
state authorities to collect or record “traffic data, in real time, associated with specified
communications.”[83] And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,[84] transmitting viruses,[85] lasciviously
exhibiting sexual organs or sexual activity for favor or consideration;[86] and producing
child pornography[87] could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from unregistered mobile
internet connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those
who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued
search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do
not provide ample safeguards against crossing legal boundaries and invading the
people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in
Morfe v. Mutuc[88] that certain constitutional guarantees work together to create zones
of privacy wherein governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left alone has been
regarded as the beginning of all freedoms.[89]

But that right is not unqualified. In Whalen v. Roe,[90] the United States Supreme Court
classified privacy into two categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those
who oppose government collection or recording of traffic data in real-time seek to
protect.

Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.[91] In
determining whether or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where one claiming the right
must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.[92]

Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners’ challenge to Section 12 applies
to all information and communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices to communicate with
one another. Consequently, the expectation of privacy is to be measured from the
general public’s point of view. Without reasonable expectation of privacy, the right to it
would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication
through a service provider, must of necessity disclose to the latter, a third person, the
traffic data needed for connecting him to the recipient ICT user. For example, an ICT
user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a

way that may be likened to parcels of letters or things that are sent through the posts.
When data is sent from any one source, the content is broken up into packets and
around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is
in the packet (SMS, voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits together with other
packets.[93] The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The packets
travel from one computer system to another where their contents are pieced back
together. Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service
provider’s communication’s system will put his voice message into packets and send
them to the other person’s cellphone where they are refitted together and heard. The
latter’s spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when
he puts his call through. He also reveals the cellphone number to the person he calls.
The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,[94] cited by the Solicitor General, the United States Supreme Court
reasoned that telephone users in the ‘70s must realize that they necessarily convey
phone numbers to the telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials should remain private,
such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange
data with one another over cyberspace except through some service providers to whom
they must submit certain traffic data that are needed for a successful cyberspace
communication. The conveyance of this data takes them out of the private sphere,
making the expectation to privacy in regard to them an expectation that society is not
prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random
bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal
patterns of activities which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to determine a person’s
close associations, religious views, political affiliations, even sexual preferences. Such
information is likely beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the procedure that Section 12
of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, “with due cause,” to collect or

record by technical or electronic means traffic data in real-time. Petitioners point out
that the phrase “due cause” has no precedent in law or jurisprudence and that whether
there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every
word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction.
But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it
intends for the phrase “due cause.” The Solicitor General suggests that “due cause”
should mean “just reason or motive” and “adherence to a lawful procedure.” But the
Court cannot draw this meaning since Section 12 does not even bother to relate the
collection of data to the probable commission of a particular crime. It just says, “with
due cause,” thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used.
Will the law enforcement agencies use the traffic data to identify the perpetrator of a
cyber attack? Or will it be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection should not disclose identities or
content data, such restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from certain bad elements in
these agencies.

Section 12, of course, limits the collection of traffic data to those “associated with
specified communications.” But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities
to engage in “fishing expedition,” choosing whatever specified communication they
want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic
data “in real time” because it is not possible to get a court warrant that would authorize
the search of what is akin to a “moving vehicle.” But warrantless search is associated
with a police officer’s determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the
search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be
better served by providing for more robust safeguards. His bare assurance that law
enforcement authorities will not abuse the provisions of Section 12 is of course not
enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.
[95]

Petitioners also ask that the Court strike down Section 12 for being violative of the void-
for-vagueness doctrine and the overbreadth doctrine. These doctrines however, have
been consistently held by this Court to apply only to free speech cases. But Section 12
on its own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.

This Court is mindful that advances in technology allow the government and kindred
institutions to monitor individuals and place them under surveillance in ways that have
previously been impractical or even impossible. “All the forces of a technological age x x
x operate to narrow the area of privacy and facilitate intrusions 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.”[96] The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber
information relating to communication services provided by a service provider shall be
preserved for a minimum period of six (6) months from the date of the transaction.
Content data shall be similarly preserved for six (6) months from the date of receipt of
the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by a
service provider is used as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the
order and its compliance.
Petitioners in G.R. 203391[97] claim that Section 13 constitutes an undue deprivation of
the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to
their authors or recipients and are to be considered private communications. But it is
not clear that a service provider has an obligation to indefinitely keep a copy of the
same as they pass its system for the benefit of users. By virtue of Section 13, however,
the law now requires service providers to keep traffic data and subscriber information
relating to communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from receipt of the
order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if
he was so minded. The service provider has never assumed responsibility for their loss
or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers
preserve on orders of law enforcement authorities are not made inaccessible to users by
reason of the issuance of such orders. The process of preserving data will not unduly
hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a
court warrant, shall issue an order requiring any person or service provider to disclose
or submit subscriber’s information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners’ objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.[98]

Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to carry
out their executive functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise have
the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in
this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium;
and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to protect
and preserve the computer data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but in
no case for a period longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established
search and seizure procedures. On its face, however, Section 15 merely enumerates the
duties of law enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been seized by virtue of a
court warrant. The exercise of these duties do not pose any threat on the rights of the
person from whom they were taken. Section 15 does not appear to supersede existing
search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in
Sections 13 and 15, service providers and law enforcement authorities, as the case may
be, shall immediately and completely destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor
General justifies this as necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous

preservation or examination violates the user’s right against deprivation of property
without due process of law. But, as already stated, it is unclear that the user has a
demandable right to require the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted them preserved, he should have
saved them in his computer when he generated the data or received it. He could also
request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer

data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the
right against unreasonable searches and seizures. The Solicitor General concedes that
this provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.

Computer data[99] may refer to entire programs or lines of code, including malware, as

well as files that contain texts, images, audio, or video recordings. Without having to go
into a lengthy discussion of property rights in the digital space, it is indisputable that
computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures,
whether while stored in their personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s
papers and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable. Further, it states that no search warrant shall issue
except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot substitute for
judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within constitutional bounds, declare
certain kinds of expression as illegal. But for an executive officer to seize content alleged
to be unprotected without any judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.[100]

Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
Restraints on free speech are generally evaluated on one of or a combination of three
tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule.[101] Section 19, however, merely requires that the data to be
blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable searches
and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof
specifically the orders from law enforcement authorities shall be punished as a violation
of Presidential Decree No. 1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is
that the mere failure to comply constitutes a legislative finding of guilt, without regard
to situations where non-compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree

(P.D.) 1829,[102] Section 20 necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to constitute an offense in and
of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging
from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or
willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by committing any of the following acts:  
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done “knowingly
or willfully.” There must still be a judicial determination of guilt, during which, as the
Solicitor General assumes, defense and justifications for non-compliance may be raised.
Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created,
within thirty (30) days from the effectivity of this Act, an inter-agency body to be known
as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real
time commission of cybercrime offenses through a computer emergency response team
(CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a
national cybersecurity plan without any sufficient standards or parameters for it to
follow.

In order to determine whether there is undue delegation of legislative power, the Court
has adopted two tests: the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from
running riot.[103]

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. Also, contrary to the position of the
petitioners, the law gave sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches,

actions, training, best practices, assurance and technologies that can be used to protect
cyber environment and organization and user’s assets.[104] This definition serves as the
parameters within which CICC should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the
law to “prevent and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international cooperation.”[105] This policy is
clearly adopted in the interest of law and order, which has been considered as sufficient
standard.[106] Hence, Sections 24 and 26(a) are likewise valid.

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;
   
 b. Section 12 that authorizes the collection or recording of traffic data in real-time;
and
   
c. Section 19 of the same Act that authorizes the Department of Justice to restrict
or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers

to preserve traffic data and subscriber information as well as specified content
data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;
   
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
   
o. Section 26(a) that defines the CICC’s Powers and Functions; and
   
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect

to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to
others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of

cybercrimes as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal
Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2)
on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections
4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and
4(c)(4) on online Libel.

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of

Section 7 that authorizes prosecution of the offender under both the Revised Penal
Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic
Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the
proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription,

and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes, JJ.,
concur.
Sereno, C.J., Carpio, and Leonen, JJ., see concurring and dissenting opinion.
Velasco, J., no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., join Justice Brion in all his positions.
Perlas-Bernabe, J., no part.

[1]
 The US Supreme Court first suggested the standard by implication in footnote 4 of
United States v. Carolene Products (304 U.S. 144, 152 n.4 (1938). See Fatal in Theory
and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. Winkler,
A. UCLA School of Law, Public Law & Legal Theory Research Paper Series, Research
Paper No. 06-14, http://ssrn.com/abstract=897360 (last accessed April 10, 2013).

[2]
 Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA
254, 278.
[3]
 White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576
SCRA 416, 437.

[4]
 All 50 states of the United States have passed individual state laws criminalizing
hacking or unauthorized access, http://www.ncsl.org/issues-
research/telecom/computer-hacking-and-unauthorized-access-laws.aspx (last accessed
May 16, 2013). The United States Congress has also passed the Computer Fraud and
Abuse Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest
Convention on Cybercrime considers hacking as an offense against the confidentiality,
integrity and availability of computer data and systems and 29 countries have already
ratified or acceded, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?
NT=185&CM=&DF=&CL=ENG (last accessed May 16, 2013).

[5]
 Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10, 2013).

[6]
 Id. at 774.

[7]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos.
178552, 178554, 178581, 178890, 179157 & 179461, October 5, 2010, 632 SCRA 146,
185.

[8]
 The intentional destruction of property is popularly referred to as vandalism. It
includes behavior such as breaking windows, slashing tires, spray painting a wall with
graffiti, and destroying a computer system through the use of a computer virus,
http://legal-dictionary.thefreedictionary.com/Vandalism (last accessed August 12,
2013).

[9]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
7, at 186; Estrada v. Sandiganbayan, 421 Phil. 290, 354 (2001).

[10]
 Id.

[11]
 Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v. Sandiganbayan.

[12]
 1987 Constitution, Article III, Section 1.

[13]
 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA 189, 204-
205.

[14]
 130 Phil. 415 (1968)

[15]
 535 Phil. 687, 714-715 (2006).

[16]
 Supra note 12, Article II, Section 2.

[17]
 Supra note 12, Article III, Section 3.

[18]
 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon, supra note 15.

[19]
 Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines personal
information as “any information whether recorded in a material form or not, from which
the identity of an individual is apparent or can be reasonably and directly ascertained by
the entity holding the information, or when put together with other information would
directly and certainly identify an individual.”

[20]
 People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.

[21]
 Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).

[22]
 Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last
accessed May 30, 2013).

[23]
 Bicameral Conference Committee, pp. 5-6.

[24]
 Id.

[25]
 Office of the Solicitor General, COMMENT, p. 71.

[26]
 REPUBLIC ACT 9208, Section 4(e).

[27]
 Id., Section 3(c).

[28]
 G.R. No. 191080, November 21, 2011, 660 SCRA 475.

[29]
 REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential Decree 969.

[30]
 Pita v. Court of Appeals, 258-A Phil. 134 (1989).

[31]
 REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY,
PRESCRIBING PENALTIES THEREFOR AND FOR OTHER PURPOSES.

[32]
 Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA 245,
citing People v. Ventura, 114 Phil. 162, 167 (1962).

[33]
 Supra note 31, Section 4(b).

[34]
 G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp. 34-37.

[35]
 White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist. LEXIS 19152
(W.D. Tex. Mar. 22, 2004).

[36]
 Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health
Care Association of the Philippines v. Duque III, 561 Phil. 387, 449 (2007).

[37]
 Supra note 29, Article 362.
[38]
 Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals, 373 Phil.
238 (1999).

[39]
 573 Phil. 278 (2008).

[40]
 Vasquez v. Court of Appeals, supra note 38.

[41]
 L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed. 2007).

[42]
 Vasquez v. Court of Appeals, supra note 38, citing New York Times v. Sullivan, 376 U.S.
254, 11 L.Ed.2d 686 (1964).

[43]
 Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004).

[44]
 Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos, 37 Phil. 731
(1918).

[45]
 Supra note 41, at 403.

[46]
 Supra note 29, Article 354.

[47]
 Communication 1815/2008.

[48]
 General Comment 34, ICCPR, par. 47.

[49]
 ICCPR, Article 19(2) and (3).

[50]
 Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).

[51]
 Office of the Solicitor General, MEMORANDUM, pp. 69-70.

[52]
 REPUBLIC ACT 3701, Section 1.

[53]
 REPUBLIC ACT 4712, Section 5.

[54]
 LABOR CODE, Article 264.

[55]
 G.R. No. 203440 (Sta. Maria), PETITION, p. 2.

[56]
 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January
14, 2013).

[57]
 http://en.wikipedia.org/wiki/Social_networking_service (last accessed January 14,
2013).

[58]
 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January
14, 2013).

[59]
 http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).
[60]
 G.R. No. 203378 (Adonis) and G.R. No. 203391 (Palatino), CONSOLIDATED
MEMORANDUM, p. 34.

[61]
 521 U.S. 844 (1997).

[62]
 Griswold v. Connecticut, 381 U.S. 479 (1965).

[63]
 G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.

[64]
 Supra note 55, at 33.

[65]
 576 Phil. 357 (2008).

[66]
 Id.

[67]
 Id.

[68]
 A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement “Google,
Inc.: Procurer, Possessor, Distributor, Aider and Abettor in Child Pornography,” 
http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed May 25,
2013).

[69]
 Id., citing 47 U.S.C. 230.

[70]
 Bianca Bosker, Facebook To Share Users' Home Addresses, Phone Numbers With
External Sites, http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-
phone-numbers_n_829459.html (last accessed July 18, 2013).

[71]
 G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes, The Revised
Penal Code: Book 1, 118 (17th ed. 2008).

[72]
 Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking, Email Accounts,
http://columbia-sc.patch.com/groups/police-and-fire/p/man-pleaded-guilty-to-hacking-
usc-website-email-accounts (last accessed July 18, 2013); Peter Ryan, Hackers target
Bureau of Statistics data, http://www.abc.net.au/news/2013-04-26/abs-targeted-by-
hackers/4652758 (last accessed July 18, 2013).

[73]
 Supra note 34, at 32.

[74]
 Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).

[75]
 Office of the Solicitor General, MEMORANDUM, p. 49.

[76]
 Section 21, Article III, 1987 CONSTITUTION: “No person shall be twice put in jeopardy
of punishment for the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another prosecution for the
same act.”
[77]
 Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).

[78]
 People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476,
citing People v. Millora, 252 Phil. 105 (1989).

[79]
 Supra note 14, at 436-437.

[80]
 Ople v. Torres, 354 Phil. 948, 974-975 (1998).

[81]
 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505
Phil. 298, 322 (2005); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

[82]
 SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and
communications industries such as content production, telecommunications,
broadcasting electronic commerce, and data processing, in the nation’s overall social
and economic development. The State also recognizes the importance of providing an
environment conducive to the development, acceleration, and rational application and
exploitation of information and communications technology (ICT) to attain free, easy,
and intelligible access to exchange and/or delivery of information; and the need to
protect and safeguard the integrity of computer, computer and communications
systems, networks, and databases, and the confidentiality, integrity, and availability of
information and data stored therein, from all forms of misuse, abuse, and illegal access
by making punishable under the law such conduct or conducts. In this light, the State
shall adopt sufficient powers to effectively prevent and combat such offenses by
facilitating their detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable international
cooperation.

[83]
 Convention on Cybercrime, Art. 20, opened for signature November 23, 2001, ETS
185.

[84]
 Cybercrime Law, Section 4(a)(1),.

[85]
 Id., Section 4(a)(3)

[86]
 Id., Section 4(c)(1)

[87]
 Id., Section 4(c)(2)

[88]
 Supra note 14.

[89]
 Id. at 433-437.

[90]
 429 U.S. 589 (1977).

[91]
 Id. at 599.

[92]
 Supra note 13, at 206.
[93]
 Jonathan Strickland, How IP Convergence Works,
http://computer.howstuffworks.com/ip-convergence2.htm (last accessed May 10,
2013).

[94]
 442 U.S. 735 (1979).

[95]
 Supra note 80, at 983.

[96]
 Supra note 14, at 437, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich.
Law Rev. 219, 229 (1965).

[97]
 G.R. No. 203391 (Palatino v. Ochoa).

[98]
 Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036, December 7,
2010, 637 SCRA 78, 143; ADMINISTRATIVE CODE of 1987, Book I, Chapter 9, Section 37,
and Book VII, Chapter 1, Section 13.

[99]
 Computer data is defined by R.A. 10175 as follows:
“SEC. 3. Definition of Terms. x x x

xxxx

(e)  Computer data refers to any representation of facts, information, or concepts in a

form suitable for processing in a computer system including a program suitable to cause
a computer system to perform a function and includes electronic documents and/or
electronic data messages whether stored in local computer systems or online.”
[100]
 Pita v. Court of Appeals, supra note 30, at 151.

[101]
 Chavez v. Gonzales, 569 Phil. 155 (2008).

[102]
 Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF
CRIMINAL OFFENDERS.

[103]
 Gerochi v. Department of Energy, 554 Phil. 563 (2007).

[104]
 REPUBLIC ACT 10175, Section 3(k).

[105]
 Supra note 94.

[106]
 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v. Provincial
Board of Mindoro, 39 Phil. 660 (1919).

CONCURRING AND DISSENTING OPINION

SERENO, CJ:

  The true role of Constitutional Law is to effect

an equilibrium between authority and liberty
 so that rights are exercised within the
framework of the law and the laws are
enacted with due deference to rights.
   
  Justice Isagani A. Cruz[1]

When the two other branches of government transgress their inherent powers, often
out of a well-intentioned zeal that causes an imbalance between authority and liberty, it
is the Court’s solemn duty to restore the delicate balance that has been upset. This is
the difficult task before us now, involving as it does our power of judicial review over
acts of a coequal branch.

The task is complicated by the context in which this task is to be discharged: a rapidly
evolving information and communications technology, which has been an enormous
force for good as well as for evil. Moreover, the Court is forced to grapple with the
challenge of applying, to the illimitable cyberspace, legal doctrines that have heretofore
been applied only to finite physical space. Fortunately, we have the Constitution as our
North Star as we try to navigate carefully the uncharted terrain of cyberspace as the
arena of the conflict between fundamental rights and law enforcement.

I concur with the ponencia in finding unconstitutional Section 12 of Cybercrime

Prevention Act on the real-time collection of traffic data and Section 19 on the
restriction or blocking of access to computer data. I also adopt the ponencia’s
discussion of Sections 12 and 19. I write this Separate Opinion, however, to explain
further why real-time collection of traffic data may be indispensable in certain cases,
as well as to explain how the nature of traffic data per se undercuts any expectation of
privacy in them.

I also concur with the ponencia’s partial invalidation of Section 4(c)(4) on libel insofar
as it purports to create criminal liability on the part of persons who receive a libelous
post and merely react to it; and of Section 7, in so far as it applies to libel.

However, I dissent from the ponencia’s upholding of Section 6 as not unconstitutional

in all its applications. I find Section 6 to be unconstitutional insofar as it applies to
cyberlibel because of its “chilling effect.” Hence, I am writing this Separate Opinion also
to explain my dissent on this issue.

I find the rest of the constitutional challenges not proper for a pre-enforcement
judicial review and therefore dismissible.

I.

THIS COURT MAY EMPLOY A PRE-ENFORCEMENT

JUDICIAL REVIEW OF THE CYBERCRIME PREVENTION ACT.

As distinguished from the general notion of judicial power, the power of judicial review
especially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter’s
constitutional powers.[2] It includes the power to resolve cases in which the
constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.[3] This power, first verbalized in the seminal case Marbury v. Madison,[4] has
been exercised by the Philippine Supreme Court since 1902.[5] The 1936 case Angara v.
Electoral Commission exhaustively discussed the concept as follows:[6]

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact
that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x.

And the judiciary in turn, with the Supreme Court as the final arbiter, effectively
checks the other departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the Constitution.

x x x x As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject
to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed “judicial
supremacy” which properly is the power of judicial review under the
Constitution. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution,
extending its coverage to the determination of whether there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.[7] The expansion made the political question
doctrine “no longer the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review.”[8] Thus, aside from the test of constitutionality, this Court has been expressly
granted the power and the duty to examine whether the exercise of discretion in those
areas that are considered political questions was attended with grave abuse.[9]

This moderating power of the Court, however, must be exercised carefully, and only if it
cannot be feasibly avoided, as it involves the delicate exercise of pronouncing an act of
a branch or an instrumentality of government unconstitutional, at the risk of
supplanting the wisdom of the constitutionally appointed actor with that of the
judiciary.[10] It cannot be overemphasized that our Constitution was so incisively
designed that the different branches of government were made the respective experts
in their constitutionally assigned spheres.[11] Hence, even as the Court dutifully exercises
its power of judicial review to check – in this case, the legislature – it must abide by the
strict requirements of its exercise under the Constitution. Indeed, “[a] ruling of
unconstitutionality frustrates the intent of the elected representatives of the people.”[12]

Demetria v. Alba[13] and Francisco v. House of Representatives[14] cite the “seven pillars”

of the limitations of the power of judicial review, enunciated in the concurring opinion
of U.S. Supreme Court Justice Louis Brandeis in Ashwander v. Tennessee Valley
Authority[15] as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly,

non-adversary, proceeding, declining because to decide such questions
“is legitimate only in the last resort, and as a necessity in the determination of
real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the constitutionality of the legislative act.”
x x x.
2. The Court will not “anticipate a question of constitutional law in advance of the
necessity of deciding it.” x x x. “It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a decision of
the case.”
3. The Court will not “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.” x x x.
4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which
the case may be disposed of. This rule has found most varied application. Thus, if
a case can be decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general law, the Court
will decide only the latter. x x x.
5. The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. x x x. Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge by a
 public official interested only in the performance of his official duty will not be
entertained. x x x.
6. The Court will not pass upon the constitutionality of a statute at the instance of
one who has availed himself of its benefits. x x x.
7. “When the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible by
which the question may be avoided.” (Citations omitted, emphases supplied)

These are specific safeguards laid down by the Court when it exercises its power of
judicial review. Thus, as a threshold condition, the power of judicial review may be
invoked only when the following four stringent requirements are satisfied: (a) there
must be an actual case or controversy; (b) petitioners must possess  locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue
of constitutionality must be the lis mota of the case.[16]

Specifically focusing on the first requisite, it necessitates that there be an existing case
or controversy that is appropriate or ripe for determination as opposed to a case that is
merely conjectural or anticipatory.[17] The case must involve a definite and concrete
issue concerning real parties with conflicting legal rights and opposing legal claims,
admitting of a specific relief through a decree conclusive in nature.[18] The “ripeness” for
adjudication of the controversy is generally treated in terms of actual injury to the
plaintiff.[19] Hence, a question is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it. The case should not equate
with a mere request for an opinion or an advice on what the law would be upon an
abstract, hypothetical, or contingent state of facts.[20] As explained in Angara v. Electoral
Commission: [21]

[The] power of judicial review is limited to actual cases and controversies to be

exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More than that, courts
accord the presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and
legislative departments of the government. (Emphases supplied)

According to one of the most respected authorities in American constitutional law,

Professor Paul A. Freund, the actual case or controversy requirement is a crucial
restraint on the power of unelected judges to set aside the acts of the people’s
representative to Congress.[22] Furthermore, he explains:[23]

The rules of “case and controversy” can be seen as the necessary corollary of this vast
power – necessary for its wise exercise and its popular acceptance. By declining to give
advisory opinions, the Court refrains from intrusion into the lawmaking process. By
requiring a concrete case with litigants adversely affected, the Court helps itself to
avoid premature, abstract, ill-informed judgments. By placing a decision on a non-
constitutional ground whenever possible, the Court gives the legislature an opportunity
for sober second thought, an opportunity to amend the statue to obviate the
constitutional question, a chance to exercise that spirit of self-scrutiny and self-
correction which is the essence of a successful democratic system. (Emphases supplied)

While the actual controversy requirement has been largely interpreted in the light of
the implications of the assailed law vis-à-vis the legally demandable rights of real parties
and the direct injury caused by the assailed law, we have also exceptionally recognized
the possibility of lodging a constitutional challenge sans a pending case involving a
directly injured party. In Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council,[24] we conceded the possibility of a pre-enforcement judicial
review of a penal statute, so long as there is a real and credible threat of prosecution
involving the exercise of a constitutionally protected conduct or activity.[25] We noted
that the petitioners therein should not be required to expose themselves to criminal
prosecution before they could assail the constitutionality of a statute, especially in the
face of an imminent and credible threat of prosecution.[26]

On 5 February 2013, this Court extended indefinitely the temporary restraining order
enjoining the government from implementing and enforcing the  Cybercrime Prevention
Act of 2012. As the assailed law is yet to be enforced, I believe that in order to give due
course to the Petitions, we would have to test their qualification for pre-enforcement
judicial review of the assailed law and its provisions.

In discussing the requirements of a pre-enforcement judicial review, we refer to our

ruling in Southern Hemisphere. We declined to perform a pre-enforcement judicial
review of the assailed provisions of the Human Security Act of 2007, because petitioners
failed to show that the law forbade them from exercising or performing a
constitutionally protected conduct or activity that they sought to do. We also explained
that the obscure and speculative claims of the petitioners therein that they were being
subjected to sporadic “surveillance” and tagged as “communist fronts” were insufficient
to reach the level of a credible threat of prosecution that would satisfy the actual-
controversy requirement. Thus, from the facts they had shown, we ruled that the Court
was merely “being lured to render an advisory opinion, which [was] not its function.”[27]

We then drew a distinction between the facts in Southern Hemisphere and those

in Holder v. Humanitarian Law Project, a case decided by the United States Supreme
Court. We noted that in Holder, a pre-enforcement judicial review of the assailed
criminal statue was entertained because the plaintiffs therein had successfully
established that there was a genuine threat of imminent prosecution against them,
thereby satisfying the actual-controversy requirement. The case concerned a new law
prohibiting the grant of material support or resources to certain foreign organizations
engaged in terrorist activities. Plaintiffs showed that they had been providing material
support to those declared as foreign terrorist organizations; and that, should they
continue to provide support, there would be a credible threat of prosecution against
them pursuant to the new law. The plaintiffs therein insisted that they only sought to
facilitate the lawful, nonviolent purposes of those groups – such as the latter’s political
and humanitarian activities – and that the material-support law would prevent the
plaintiffs from carrying out their rights to free speech and to association. Based on the
foregoing considerations, the U.S. Supreme Court concluded that the claims of the
plaintiffs were suitable for judicial review, as there was a justiciable case or controversy.
We may thus cull from the foregoing cases that an anticipatory petition assailing the
constitutionality of a criminal statute that is yet to be enforced may be exceptionally
given due course by this Court when the following circumstances are shown: (a) the
challenged law or provision forbids a constitutionally protected conduct or activity that
a petitioner seeks to do; (b) a realistic, imminent, and credible threat or danger of
sustaining a direct injury or facing prosecution awaits the petitioner should the
prohibited conduct or activity be carried out; and (c) the factual
circumstances surrounding the prohibited conduct or activity sought to be carried out
are real, not hypothetical and speculative, and are sufficiently alleged and proven.[28] It
is only when these minimum conditions are satisfied can there be a finding of a
justiciable case or actual controversy worthy of this Court’s dutiful attention and
exercise of pre-enforcement judicial review. Furthermore, since the issue of the
propriety of resorting to a pre-enforcement judicial review is subsumed under the
threshold requirement of actual case or controversy, we need not go through the merits
at this stage. Instead, the determination of whether or not to exercise this power must
hinge solely on the allegations in the petition, regardless of the petitioner’s
entitlement to the claims asserted.

A review of the petitions before us shows that, save for the Disini Petition,[29] all
petitions herein have failed to establish that their claims call for this Court’s exercise of
its power of pre-enforcement judicial review.

Petitioners allege that they are users of various information and communications
technologies (ICT) as media practitioners, journalists, lawyers, businesspersons, writers,
students, Internet and social media users, and duly elected legislators. However, except
for the Petition of Disini, none of the other petitioners have been able to show that
they are facing an imminent and credible threat of prosecution or danger of sustaining
a direct injury. Neither have they established any real, factual circumstances in which
they are at risk of direct injury or prosecution, should those acts continue to be carried
out. They have simply posed hypothetical doomsday scenarios and speculative
situations, such as round-the-clock, Big-Brother-like surveillance; covert collection of
digital and personal information by the government; or a wanton taking down of
legitimate websites.[30] Others have made outright legal queries on how the law would
be implemented in various circumstances, such as when a person disseminates, shares,
affirms, “likes,” “retweets,” or comments on a potentially libelous article.[31] A
considerable number of them have merely raised legal conclusions on the implication of
the new law, positing that the law would per se prevent them from freely expressing
their views or comments on intense national issues involving public officials and their
official acts.[32] While these are legitimate concerns of the public, giving in to these
requests for advisory opinion would amount to an exercise of the very same function
withheld from this Court by the actual controversy requirement entrenched in Section
1, Article III of our Constitution.

The Petition of Disini is the only pleading before the Court that seems to come close to
the actual-controversy requirement under the Constitution. What sets the Petition apart
is that it does not merely allege that petitioners therein are ICT users who have posted
articles and blogs on the Internet. The Petition also cites particular blogs or online
articles of one of the petitioners who was critical of a particular legislator.
[33]
 Furthermore, it refers to a newspaper article that reported the legislator’s intent to
sue under the new law, once it takes effect. The pertinent portion of the Petition reads:
[34]

5. Petitioners are all users of the Internet and social media. Petitioner Ernesto
Sonido, Jr. (“Petitioner Sonido”), in particular, maintains the blog “Baratillo
Pamphlet” over the Internet.
6. On August 22, 2012 and September 7, 2012, Petitioner Sonido posted 2 blogs
entitled “Sotto Voce: Speaking with Emphasis” and “Sotto and Lessons on Social
Media” in which he expressed his opinions regarding Senator Vicente “Tito”
Sotto III’s (“Senator Sotto”) alleged plagiarism of online materials for use in his
speech against the Reproductive Health Bill.
7. On August 30, 2012, Senator Sotto disclosed that the Cybercrime Bill was
already approved by the Senate and the House of Representatives and was
merely awaiting the President’s signature. He then warned his critics that once
signed into law, the Cybercrime Bill will penalize defamatory statements made
online. To quote Senator Sotto:

“Walang ginawa yan [internet users] umaga, hapon, nakaharap

sa computer, target nuon anything about the [Reproductive Health] Bill. Ganun
ang strategy nun and unfortunately, di panapipirmahan ang  Cybercrime
bill. Pwede na sana sila tanungin sa pagmumura at pagsasabi ng di maganda.
Sa  Cybercrime  bill, magkakaroon ng accountability sa kanilang
pinagsasabi, penalties na haharapin, same penalties as legitimate journalists,
anything that involves the internet,” he said.

8. The threat of criminal prosecution that was issued by Senator Sotto affected not
only bloggers like Petitioner Sonido but all users of the Internet and social media
as the other Petitioners herein who utilize online resources to post comments
and express their opinions about social issues.
9. The President finally signed the Cybercrime Act into law on September 12, 2012.
10. With the passage of the Cybercrime Act, the threat that was issued by Senator
Sotto against his online critics has become real. (Emphases and italics supplied)

The Petition of Disini appears to allege sufficient facts to show a realistic, imminent, and
credible danger that at least one of its petitioners may sustain a direct injury should
respondents proceed to carry out the prohibited conduct or activity. First, there was a
citation not only of a particular blog, but also of two potentially libelous entries in the
blog. Second, the plausibly libelous nature of the articles was specifically described.
Third, the subject of the articles, Senator Vicente Sotto III, was alleged to have made
threats of using the assailed statute to sue those who had written unfavorably about
him; a verbatim quote of the legislator’s threat was reproduced in the Petition. Fourth,
the person potentially libeled is a nationally elected legislator.

This combination of factual allegations seems to successfully paint a realistic possibility

of criminal prosecution under Section 4(c)(4) of a specific person under the assailed law.
Consequently, there is now also a possibility of the writer being penalized under Section
6, which raises the penalty for crimes such as libel by one degree when committed
through ICT. The alleged facts would also open the possibility of his being charged twice
under Section 4(c)(4) and Article 353 of the Revised Penal Code by virtue of Section 7.
Furthermore, since he might become a suspect in the crime of libel, his online activities
might be in danger of being investigated online by virtue of Section 12 or his access to
computer data might be restricted under Section 19.

Therefore, it is submitted that the Court must limit its discussion of the substantive
merits of the cases to the Petition of Disini, at the most and only on the provisions
questioned therein.

II.

PARTICULAR PROVISIONS OF THE

CYBERCRIME PREVENTION ACT
MAY BE FACIALY INVALIDATED.

A facial challenge refers to the call for the scrutiny of an entire law or provision by
identifying its flaws or defects, not only on the basis of its actual operation on the
attendant facts raised by the parties, but also on the assumption or prediction that the
very existence of the law or provision is repugnant to the Constitution.[35] This kind of
challenge has the effect of totally annulling the assailed law or provision, which is
deemed to be unconstitutional per se. The challenge is resorted to by courts, especially
when there is no instance to which the law or provision can be validly applied.[36]

In a way, a facial challenge is a deviation from the general rule that Courts should only
decide the invalidity of a law “as applied” to the actual, attending circumstances before
it.[37] An as-applied challenge refers to the localized invalidation of a law or provision,
limited by the factual milieu established in a case involving real litigants who are actually
before the Court.[38] This kind of challenge is more in keeping with the established canon
of adjudication that “the court should not form a rule of constitutional law broader than
is required by the precise facts to which it is applied.”[39] Should the petition prosper, the
unconstitutional aspects of the law will be carved away by invalidating its improper
applications on a case-to-case basis.[40] For example, in Ebralinag v. Division of
Superintendent of Schools of Cebu,[41] the Court exempted petitioner-members of the
religious group Jehovah’s Witness from the application of the Compulsory Flag
Ceremony in Educational Institutions Act on account of their religious beliefs. The Court
ruled that the law requiring them to salute the flag, sing the national anthem, and recite
the patriotic pledge cannot be enforced against them at the risk of expulsion, because
the law violated their freedom of religious expression. In effect, the law was deemed
unconstitutional insofar as their religious beliefs were concerned.

Because of its effect as a total nullification, the facial invalidation of laws is deemed to
be a “manifestly strong medicine” that must be used sparingly and only as a last resort.
[42]
 The general disfavor towards it is primarily due to the “combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes.”[43] Claims of facial invalidity “raise the risk of ‘premature
interpretation of statutes on the basis of factually barebones records.’”[44]

A. Section 6 – Increase of Penalty by One Degree

Section 6 was worded to apply to all existing penal laws in this jurisdiction. Due to the
sheer extensiveness of the applicability of this provision, I believe it unwise to issue a
wholesale facial invalidation thereof, especially because of the insufficiency of the facts
that would allow the Court to make a conclusion that the provision has no valid
application.

Alternatively, the discussion can be limited to the allegations raised in the Petition
of Disini  concerning the right to free speech. The Petition asserts that Section 6 (on the
increase of penalty by one degree), in conjunction with the provision on cyberlibel, has
the combined chilling effect of curtailing the right to free speech. The Petition posits
that the law “imposes heavier penalties for online libel than paper-based libel” in that
the imposable penalty for online libel is now increased from prisión correccional in its
minimum and medium periods (6 months and 1 day to 4 years and 2 months) to  prisión
mayor in its minimum and medium periods (6 years and 1 day to 10 years).[45]

The ponencia correctly holds that libel is not a constitutionally protected conduct. It is

also correct in holding that, generally, penal statutes cannot be invalidated on the
ground that they produce a “chilling effect,” since by their very nature, they are
intended to have an  in terrorem effect (benign chilling effect)[46] to prevent a repetition
of the offense and to deter criminality.[47] The “chilling effect” is therefore equated with
and justified by the intended in terrorem effect of penal provisions.

This does not mean, however, that the Constitution gives Congress the carte blanche
power to indiscriminately impose and increase penalties. While the determination of
the severity of a penalty is a prerogative of the legislature, when laws and penalties
affect free speech, it is beyond question that the Court may exercise its power of judicial
review to determine whether there has been a grave abuse of discretion in imposing or
increasing the penalty. The Constitution’s command is clear: “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.”
Thus, when Congress enacts a penal law affecting free speech and accordingly imposes
a penalty that is so discouraging that it effectively creates an invidious chilling effect,
thus impeding the exercise of speech and expression altogether, then there is a
ground to invalidate the law. In this instance, it will be seen that the penalty provided
has gone beyond the  in terrorem effect needed to deter crimes and has thus reached
the point of encroachment upon a preferred constitutional right. I thus vote to facially
invalidate Section 6 insofar as it applies to the crime of libel.

As will be demonstrated below, the confluence of the effects of the increase in penalty
under this seemingly innocuous provision, insofar as it is applied to libel, will practically
result in chilling the right of the people to free speech and expression.

Section 6 creates an
additional in
terrorem effect on
top of that already
created by Article
355 of the Revised
Penal Code

The basic postulate of the classical penal system on which our  Revised Penal Code is
based is that humans are rational and calculating beings who guide their actions by the
principles of pleasure and pain.[48] They refrain from criminal acts if threatened with
punishment sufficient to cancel the hope of possible gain or advantage in committing
the crime.[49] This consequence is what is referred to as the in terrorem effect sought to
be created by the  Revised Penal Code in order to deter the commission of a crime.
[50]
 Hence, in the exercise of the people’s freedom of speech, they carefully decide
whether to risk publishing materials that are potentially libelous by weighing the
severity of the punishment - if and when the speech turns out to be libelous - against
the fulfillment and the benefits to be gained by them.

Our Revised Penal Code increases the imposable penalty when there are attending
circumstances showing a greater perversity or an unusual criminality in the commission
of a felony.[51] The intensified punishment for these so-called aggravating circumstances
is grounded on various reasons, which may be categorized into (1) the motivating power
itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or
(5) the personal circumstances of the offender or of the offended party.[52] Based on the
aforementioned basic postulate of the classical penal system, this is an additional in
terrorem  effect created by the Revised Penal Code, which targets the deterrence of a
resort to greater perversity  or to an unusual criminality in the commission of a felony.

Section 4(c)(4) of the Cybercrime Prevention Act expressly amended Article 355 of

the Revised Penal Code, thereby clarifying that the use of a “computer system or any
other similar means” is a way of committing libel. On the other hand, Section 6 of
the Cybercrime Prevention Act introduces a qualifying aggravating circumstance, which
reads: Sec.

6. All crimes defined and penalized by the Revised Penal Code, as amended, and special
laws, if committed by, through and with the use of information and communications
technologies shall be covered by the relevant provisions of this Act: Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be. (Emphases
supplied)

A perfunctory application of the aforementioned sections would thus suggest the

amendment of the provision on libel in the Revised Penal Code, which now appears to
contain a graduated scale of penalties as follows:

ARTICLE 355. Libel by Means Writings or Similar Means. — A libel committed by means

of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prisión correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

[Libel committed by, through and with the use of a computer system or any other
similar means which may be devised in the future shall be punished by[53] prisión
correccional  in its maximum period to prisión mayor in its minimum period].
(Emphases supplied)

Section 6 effectively creates an additional  in terrorem effect by introducing a

qualifying aggravating circumstance: the use of ICT. This additional burden is on top of
that already placed on the crimes themselves, since the in terrorem effect of the latter is
already achieved through the original penalties imposed by the Revised Penal Code.
Consequently, another consideration is added to the calculation of penalties by the
public. It will now have to weigh not only whether to exercise freedom of speech, but
also whether to exercise this freedom through ICT.

One begins to see at this point how the exercise of freedom of speech is clearly
burdened. The Court can take judicial notice of the fact that ICTs are fast becoming the
most widely used and accessible means of communication and of expression.
Educational institutions encourage the study of ICT and the acquisition of the
corresponding skills. Businesses, government institutions and civil society organizations
rely so heavily on ICT that it is no exaggeration to say that, without it, their operations
may grind to a halt. News organizations are increasingly shifting to online publications,
too. The introduction of social networking sites has increased public participation in
socially and politically relevant issues. In a way, the Internet has been transformed into
“freedom parks.” Because of the inextricability of ICT from modern life and the exercise
of free speech and expression, I am of the opinion that the increase in penalty per
se effectively chills a significant amount of the exercise of this preferred constitutional
right.

The chill does not stop there. As will be discussed below, this increase in penalty has a
domino effect on other provisions in the Revised Penal Code thereby further affecting
the public’s calculation of whether or not to exercise freedom of speech. It is certainly
disconcerting that these effects, in combination with the increase in penalty per se,
clearly operate to tilt the scale heavily against the exercise of freedom of speech.

The increase in
penalty also results
in the imposition of
harsher accessory
penalties.

Under the Revised Penal Code, there are accessory penalties that are inherent in certain
principal penalties. Article 42 thereof provides that the principal (afflictive) penalty
of prisión mayor carries with it the accessory penalty of temporary absolute
disqualification. According to Article 30, this accessory penalty shall produce the
following effects:

1. The deprivation of the public offices and employments which the offender may

have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office
or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of
any of the rights mentioned. In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all right to retirement pay or other pension for any office formerly
held. (Emphases supplied)
Furthermore, the accessory penalty of perpetual special disqualification from the right
of suffrage shall be meted out to the offender. Pursuant to Article 32, this penalty
means that the offender shall be perpetually deprived of the right (a) to vote in any
popular election for any public office; (b) to be elected to that office; and (c) to hold any
public office.[54] This perpetual special disqualification will only be wiped out if expressly
remitted in a pardon.

On the other hand, Article 43 provides that when the principal (correctional) penalty
of prisión correccional is meted out, the offender shall also suffer the accessory
penalty of suspension from public office and from the right to follow a profession or
calling during the term of the sentence. While the aforementioned principal penalty
may carry with it the accessory penalty of perpetual special disqualification from the
right of suffrage, it will only be imposed upon the offender if the duration of
imprisonment exceeds 18 months.

Before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355 of
the Revised Penal Code, even if committed by means of ICT, is prisión correccional in its
minimum and medium periods. Under Section 6 of the Cybercrime Prevention Act, the
imposable penalty for libel qualified by ICT is now increased to prisión correccional in its
maximum period to prisión mayor in its minimum period.[55] Consequently, it is now
possible for the above-enumerated harsher accessory penalties for  prisión mayor to
attach depending on the presence of mitigating circumstances.

Hence, the public will now have to factor this change into their calculations, which will
further burden the exercise of freedom of speech through ICT.

The increase in
penalty neutralizes
the full benefits of
the law on
probation,
effectively
threatening the
public with the
guaranteed
imposition of
imprisonment and
the accessory
penalties thereof.

Probation[56] is a special privilege granted by the State to penitent, qualified offenders

who immediately admit to their liability and thus renounce the right to appeal. In view
of their acceptance of their fate and willingness to be reformed, the State affords them
a chance to avoid the stigma of an incarceration record by making them undergo
rehabilitation outside prison.

Section 9 of Presidential Decree No. (P.D.) 968, as amended - otherwise known as

the Probation Law  - provides as follows:
Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to
those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of subversion or any crime against the national security or the public
order;
(c) who have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than
Two Hundred Pesos;
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof. (Emphasis supplied)

Pursuant to Article 355 of the Revised Penal Code, libel is punishable by prisión
correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and
medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. However,
in the light of the increase in penalty by one degree under the Cybercrime Prevention
Act, libel qualified by the use of ICT is now punishable by prisión correccional in its
maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its
minimum period (from 6 years and 1 day to 8 years).[57] This increased penalty means
that if libel is committed through the now commonly and widely used means of
communication, ICT, libel becomes a non-probationable offense.

One of the features of the  Probation Law is that it suspends the execution of the
sentence imposed on the offender.[58] In Moreno v. Commission on Elections,[59] we
reiterated our discussion in Baclayon v. Mutia[60] and explained the effect of the
suspension as follows:

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is
not a sentence but is rather, in effect, a suspension of the imposition of sentence. We
held that the grant of probation to petitioner suspended the imposition of the
principal penalty of imprisonment, as well as the accessory penalties of suspension
from public office and from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage. We thus deleted from the
order granting probation the paragraph which required that petitioner refrain from
continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from
public office, from the right to follow a profession or calling, and that of perpetual
special disqualification from the right of suffrage, attendant to the penalty of  arresto
mayor in its maximum period to  prisión correccional in its minimum period imposed
upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of
suspension from public office is put on hold for the duration of the probation.
(Emphases supplied)

It is not unthinkable that some people may risk a conviction for libel, considering that
they may avail themselves of the privilege of probation for the sake of exercising their
cherished freedom to speak and to express themselves. But when this seemingly
neutral technology is made a qualifying aggravating circumstance to a point that a
guaranteed imprisonment would ensue, it is clear that the in terrrorem effect of libel
is further magnified, reaching the level of an invidious chilling effect. The public may
be forced to forego their prized constitutional right to free speech and expression in the
face of as much as eight years of imprisonment, like the sword of Damocles hanging
over their heads.

Furthermore, it should be noted that one of the effects of probation is the suspension
not only of the penalty of imprisonment, but also of the accessory penalties attached
thereto. Hence, in addition to the  in terrorem effect supplied by the criminalization of a
socially intolerable conduct and the in terrorem effect of an increase in the duration of
imprisonment in case of the presence of an aggravating circumstance, the Revised Penal
Code threatens further[61] by attaching accessory penalties to the principal penalties.

Section 6 increases
the prescription
periods for the crime
of cyberlibel and its
penalty to 15 years.

Crimes and their penalties prescribe. The prescription of a crime refers to the loss or

waiver by the State of its right to  prosecute an act prohibited and punished by law.[62] It
commences from the day on which the crime is discovered by the offended party, the
authorities or their agents.[63] On the other hand, the prescription of the penalty is the
loss or waiver by the State of its right to  punish the convict.[64] It commences from the
date of evasion of service after final sentence. Hence, in the prescription of crimes, it is
the penalty prescribed by law that is considered; in the prescription of penalties, it is the
penalty imposed.[65]

By setting a prescription period for crimes, the State by an act of grace surrenders its
right to  prosecute and declares the offense as no longer subject to prosecution after a
certain period.[66] It is an amnesty that casts the offense into oblivion and declares that
the offenders are now at liberty to return home and freely resume their activities as
citizens.[67] They may now rest from having to preserve the proofs of their innocence,
because the proofs of their guilt have been blotted out.[68]

The Revised Penal Code sets prescription periods for crimes according to the following
classification of their penalties:

ARTICLE 90. Prescription of Crimes. — Crimes punishable by death, reclusión

perpetua or  reclusión temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.

When the penalty fixed by law is a compound one the highest penalty shall be made the
basis of the application of the rules contained in the first, second and third paragraphs
of this article. (Emphases supplied)

On the other hand, Article 92 on the prescription of penalties states:

ARTICLE 92. When and How Penalties Prescribe. — The penalties imposed by final
sentence prescribe as follows:

1. Death and  reclusión perpetua, in twenty years;

2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the penalty
of arresto mayor, which prescribes in five years;
4. Light penalties, in one year. (Emphases supplied)

As seen above, before the passage of the Cybercrime Prevention Act, the state
effectively waives its right to prosecute crimes involving libel. Notably, the prescription
period for libel used to be two years, but was reduced to one year through Republic Act
No. 4661 on 18 June 1966.[69] Although the law itself does not state the reason behind
the reduction, we can surmise that it was made in recognition of the harshness of the
previous period, another act of grace by the State.

With the increase of penalty by one degree pursuant to Section 6 of the Cybercrime

Prevention Act, however, the penalty for libel through ICT becomes afflictive under
Article 25 of the Revised Penal Code. Accordingly, under the above-quoted provision,
the crime of libel through ICT shall now possibly prescribe in 15 years - a 15-fold
increase in the prescription period.[70] In effect, the State’s grant of amnesty to the
offender will now be delayed by 14 years more. Until a definite ruling from this Court in
a proper case is made, there is uncertainty as to whether the one-year prescription
period for ordinary libel will also apply to libel through ICT.

Similarly, under Article 92, the prescription period for the penalty of libel through ICT is
also increased from 10 years - the prescription period for correctional penalties - to 15
years, the prescription for afflictive penalties other than reclusión perpetua. These twin
increases in both the prescription period for the crime of libel through ICT and in that
for its penalty are additional factors in the public’s rational calculation of whether or not
to exercise their freedom of speech and whether to exercise that freedom through ICT.
Obviously, the increased prescription periods - yet again - tilt the scales, heavily against
the exercise of this freedom.

Regrettably, the records of the Bicameral Conference Committee deliberation do not

show that the legislators took into careful consideration this domino effect that, when
taken as a whole, clearly discourages the exercise of free speech. This, despite the fact
that the records of the committee deliberations show that the legislators became aware
of the need to carefully craft the application of the one-degree increase in penalty and
“to review again the Revised Penal Code and see what ought to be punished, if
committed through the computer.” But against their better judgment, they proceeded
to make an all-encompassing application of the increased penalty sans any careful
study, as the proceedings show:

THE CHAIRMAN (REP. TINGA). With regard to some of these offenses, the reason why
they were not included in the House version initially is that, the assumption that the
acts committed that would make it illegal in the real world would also be illegal in the
cyberworld, ‘no.

For example, libel po. When we discussed this again with the Department of Justice, it
was their suggestion to include an all-encompassing paragraph...

THE CHAIRMAN (SEN. ANGARA). (Off-mike) A catch all–

THE CHAIRMAN (SEN. TINGA). ...a catch all, wherein all crimes defined and penalized by
the Revised Penal Code as amended and special criminal laws committed by, through,
and with the use of information and communications technology shall be covered by the
relevant provisions of this act. By so doing, Mr. Chairman, we are saying that if we
missed out on any of these crimes – we did not specify them, point by point – they
would still be covered by this act, ‘no.

So it would be up to you, Mr. Chairman...

THE CHAIRMAN (SEN. ANGARA). Yeah.

xxxx

THE CHAIRMAN (REP. TINGA). ...do we specify this and then or do we just use an all-
encompassing paragraph to cover them.

THE CHAIRMAN (SEN. ANGARA). Well, as you know, the Penal Code is really a very, very
old code. In fact, it dates back to the Spanish time and we amend it through several
Congresses. So like child pornography, this is a new crime, cybersex is a new crime. Libel
through the use of computer system is a novel way of slandering and maligning people.
So we thought that we must describe it with more details and specificity as required by
the rules of the Criminal Law. We’ve got to be specific and not general in indicting a
person so that he will know in advance what he is answering for. But we can still
include and let-anyway, we have a separability clause, a catch all provision that you
just suggested and make it number five. Any and all crimes punishable under the
Revised Penal Code not heretofore enumerated above but are committed through the
use of computer or computer system shall also be punishable but we should match it
with a penalty schedule as well.

So we’ve got to review. Mukhang mahirap gawin yun,  huh. We have to review again
the Revised Penal Code and see what ought to be punished, if committed through the
computer. Then we’ve got to review the penalty, huh.

THE CHAIRMAN (REP. TINGA). I agree, Mr. Chairman, that you are defining the newer
crimes. But I also agree as was suggested earlier that there should be an all-
encompassing phrase to cover these crimes in the Penal Code, ‘no. Can that not be
matched with a penalty clause that would cover it as well? Instead of us going line by
line through the–
THE CHAIRMAN (SEN. ANGARA). So you may just have to do that by a reference. The
same penalty imposed under the Revised Penal Code shall be imposed on these crimes
committed through computer or computer systems.

xxxx

THE CHAIRMAN (REP. TINGA). Okay.

And may we recommend, Mr. Chairman, that your definition of the penalty be added
as well where it will be one degree higher...

THE CHAIRMAN (SEN. ANGARA). Okay.

THE CHAIRMAN (REP. TINGA). ...than the relevant penalty as prescribed in the Revised
Penal Code.

So, we agree with your recommendation, Mr. Chairman.

xxxx

THE CHAIRMAN (SEN. ANGARA). Okay, provided that the penalty shall be one degree
higher than that imposed under the Revised Penal Code.

Okay, so–

xxxx

REP. C. SARMIENTO. Going by that ruling, if one commits libel by email, then the
penalty is going to be one degree higher...

THE CHAIRMAN (SEN. ANGARA). One degree higher.

REP. C. SARMIENTO . ...using email?

THE CHAIRMAN (SEN. ANGARA). Yes.

REP. C. SARMIENTO. As compared with libel through media or distributing letters or

faxes.

THE CHAIRMAN (SEN. ANGARA). I think so, under our formulation. Thank
you. (Emphases supplied)[71]

ICT as a qualifying
aggravating
circumstance cannot
be offset by any
mitigating
circumstance.

A qualifying aggravating circumstance has the effect not only of giving the crime its
proper and exclusive name, but also of placing the offender in such a situation as to
deserve no other penalty than that especially prescribed for the crime.[72] Hence, a
qualifying aggravating circumstance increases the penalty by degrees. For instance,
homicide would become murder if attended by the qualifying circumstance of
treachery, thereby increasing the penalty from reclusión temporal  to reclusión
perpetua.[73] It is unlike a generic aggravating circumstance, which increases the penalty
only to the maximum period of the penalty prescribed by law, and not to an entirely
higher degree.[74] For instance, if the generic aggravating circumstance of dwelling or
nighttime attends the killing of a person, the penalty will remain the same as that for
homicide (reclusión temporal), but applied to its maximum period. Also, a generic
aggravating circumstance may be offset by a generic mitigating circumstance, while a
qualifying aggravating circumstance cannot be.[75]

Hence, before the  Cybercrime Prevention Act, libel - even if committed through ICT -
was punishable only by prisión correccional from its minimum (6 months and 1 day to 2
years and 4 months) to its medium period (2 years, 4 months, and 1 day to 4 years and 2
months).

Under Section 6 however, the offender is now punished with a new range of penalty
- prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6
years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years). And
since the use of ICT as a qualifying aggravating circumstance cannot be offset by any
mitigating circumstance, such as voluntary surrender, the penalty will remain within the
new range of penalties.

As previously discussed, qualifying aggravating circumstances, by themselves, produce

an in terrorem effect. A twofold increase in the maximum penalty – from 4 years and 2
months to 8 years – for the use of an otherwise beneficial and commonly used means of
communication undeniably creates a heavier invidious chilling effect.

The Court has the

duty to restore the
balance and protect
the exercise of
freedom of speech.

Undeniably, there may be substantial distinctions between ICT and other means of
committing libel that make ICT a more efficient and accessible means of committing
libel. However, it is that same efficiency and accessibility that has made ICT an
inextricable part of people’s lives and an effective and widely used tool for the exercise
of freedom of speech, a freedom that the Constitution protects and that this Court has a
duty to uphold.

Facial challenges have been entertained when, in the judgment of the Court, the
possibility that the freedom of speech may be muted and perceived grievances left to
fester outweighs the harm to society that may be brought about by allowing some
unprotected speech or conduct to go unpunished.[76]

In the present case, it is not difficult to see how the increase of the penalty under
Section 6 mutes freedom of speech. It creates a domino effect that effectively
subjugates the exercise of the freedom – longer prison terms, harsher accessory
penalties, loss of benefits under the Probation Law, extended prescription periods, and
ineligibility of these penalties to be offset by mitigating circumstances. What this Court
said in People v. Godoy,[77] about “mankind’s age-old observation” on capital
punishment, is appropriate to the penalty in the present case: “If it is justified, it serves
as a deterrent; if injudiciously imposed, it generates resentment.”[78] Thus, I am of the
opinion that Section 6, as far as libel is concerned, is facially invalid.

B. Section 12 – Real-Time Collection of Traffic Data.

Real-time collection of traffic data may be indispensable to law enforcement in certain

instances. Also, traffic data per se may be examined by law enforcers, since there is no
privacy expectation in them. However, the authority given to law enforcers must be
circumscribed carefully so as to safeguard the privacy of users of electronic
communications. Hence, I support the ponencia in finding the first paragraph of
Section 12 unconstitutional because of its failure to provide for strong safeguards
against intrusive real-time collection of traffic data. I clarify, however, that this
declaration should not be interpreted to mean that Congress is now prevented from
going back to the drawing board in order to fix the first paragraph of Section 12. Real-
time collection of traffic data is not invalid per se. There may be instances in which a
warrantless real-time collection of traffic data may be allowed when robust
safeguards against possible threats to privacy are provided. Nevertheless, I am of the
opinion that there is a need to explain why real-time collection of traffic data may be
vital at times, as well as to explain the nature of traffic data.

Indispensability of Real-time Collection of Traffic Data

In order to gain a contextual understanding of the provision under the Cybercrime

Prevention Act on the real-time collection of traffic data, it is necessary to refer to
the Budapest Convention on Cybercrime, which the Philippine Government
requested[79] to be invited to accede to in 2007. The Cybercrime Prevention Act was
patterned after this convention.[80]

The Budapest Convention on Cybercrime is an important treaty, because it is the first

and only multinational agreement on cybercrime.[81] It came into force on 1 July
2004[82] and, to date, has been signed by 45 member states of the Council of Europe
(COE), 36 of which have ratified the agreement.[83] Significantly, the COE is the leading
human rights organization of Europe.[84] Moreover, two important non-member states
or “partner countries”[85] have likewise ratified it - the United States on 29 September
2006 and Japan on 3 July 2012. Australia and the Dominican Republic have also joined
by accession.[86]

The Convention “represents a comprehensive international response to the problems of

cybercrime”[87] and is the product of a long process of careful expert studies and
international consensus. From 1985 to 1989, the COE’s Select Committee of Experts on
Computer-Related Crime debated issues before drafting Recommendation 89(9). This
Recommendation stressed the need for a quick and adequate response to the
cybercrime problems emerging then and noted the need for an international consensus
on criminalizing specific computer-related offenses.[88] In 1995, the COE adopted
Recommendation No. R (95)13, which detailed principles addressing search and seizure,
technical surveillance, obligations to cooperate with the investigating authorities,
electronic evidence, and international cooperation.[89] In 1997, the new Committee of
Experts on Crime in Cyberspace was created to examine, “in light of Recommendations
No R (89)9 and No R (95)13,” the problems of “cyberspace offenses and other
substantive criminal law issues where a common approach may be necessary for
international cooperation.” It was also tasked with the drafting of “a binding legal
instrument” to deal with these issues. The preparation leading up to the Convention
entailed 27 drafts over four years.[90]

As mentioned earlier, the Philippines was one of the countries that requested to be
invited to accede to this very important treaty in 2007, and the Cybercrime Prevention
Act was patterned after the convention.[91]

Article 1 of the Budapest Convention on Cybercrime defines “traffic data” as follows:

d. “traffic data” means any computer data relating to a communication by means of a

computer system, generated by a computer system that formed a part in the chain of
communication, indicating the communication’s origin, destination, route, time, date,
size, duration, or type of underlying service.

Section 3 of the Cybercrime Prevention Act  has a starkly similar definition of “traffic

data”:

(p)  Traffic data or non-content data refers to any computer data other than the

content of the communication including, but not limited to, the communication’s origin,
destination, route, time, date, size, duration, or type of underlying service.

However, the definition in the Cybercrime Prevention Act improves on that of the

Convention by clearly restricting traffic data to those that are non-content in nature. On
top of that, Section 12 further restricts traffic data to exclude those that refer to
the identity of persons. The provision states:

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities. (Emphasis
supplied)

Undoubtedly, these restrictions were made because Congress wanted to ensure the
protection of the privacy of users of electronic communication. Congress must have also
had in mind the 1965 Anti-Wiretapping Act, as well as the Data Privacy Act which was
passed only a month before the Cybercrime Prevention Act. However, as will be shown
later, the restrictive definition is not coupled with an equally restrictive procedural
safeguard. This deficiency is the Achilles’ heel of the provision.

One of the obligations under the Budapest Convention on Cybercrime is for state parties
to enact laws and adopt measures concerning the real-time collection of traffic data, viz:

Article 20 – Real-time collection of traffic data

1. Each Party shall adopt such legislative and other measures as may be
necessary to empower its competent authorities to:
 a. collect or record through the application of technical means on the
territory of that Party, and
b. compel a service provider, within its existing technical capability:
i. to collect or record through the application of technical
means on the territory of that Party; or
ii. to co-operate and assist the competent authorities in the
collection or recording of, traffic data, in real-
time, associated with specified communications in its
territory transmitted by means of a computer system.

2. Where a Party, due to the established principles of its domestic legal

system, cannot adopt the measures referred to in paragraph 1.a, it may
instead adopt legislative and other measures as may be necessary to
ensure the real-time collection or recording of traffic data associated
with specified communications transmitted in its territory, through the
application of technical means on that territory.
3. Each Party shall adopt such legislative and other measures as may be
necessary to oblige a service provider to keep confidential the fact of the
execution of any power provided for in this article and any information
relating to it.
4. The powers and procedures referred to in this article shall be subject to
Articles 14 and 15. (Emphases supplied)

The Explanatory Report on the Budapest Convention on Cybercrime explains the

ephemeral and volatile nature of traffic data, which is the reason why it has to be
collected in real-time if it is to be useful in providing a crucial lead to investigations of
criminality online as follows:[92]

29. In case of an investigation of a criminal offence committed in relation to a computer

system, traffic data is needed to trace the source of a communication as a starting
point for collecting further evidence or as part of the evidence of the offence. Traffic
data might last only ephemerally, which makes it necessary to order its expeditious
preservation. Consequently, its rapid disclosure may be necessary to discern the
communication’s route in order to collect further evidence before it is deleted or to
identify a suspect. The ordinary procedure for the collection and disclosure of
computer data might therefore be insufficient. Moreover, the collection of this data is
regarded in principle to be less intrusive since as such it doesn’t reveal the content of
the communication which is regarded to be more sensitive.

xxxx

133. One of the major challenges in combating crime in the networked environment is
the difficulty in identifying the perpetrator and assessing the extent and impact of the
criminal act. A further problem is caused by the volatility of electronic data, which may
be altered, moved or deleted in seconds. For example, a user who is in control of the
data may use the computer system to erase the data that is the subject of a criminal
investigation, thereby destroying the evidence. Speed and, sometimes, secrecy are
often vital for the success of an investigation.
134. The Convention adapts traditional procedural measures, such as search and
seizure, to the new technological environment. Additionally, new measures have been
created, such as expedited preservation of data, in order to ensure that traditional
measures of collection, such as search and seizure, remain effective in the volatile
technological environment. As data in the new technological environment is not
always static, but may be flowing in the process of communication, other traditional
collection procedures relevant to telecommunications, such as real-time collection of
traffic data and interception of content data, have also been adapted in order to
permit the collection of electronic data that is in the process of communication. Some
of these measures are set out in Council of Europe Recommendation No. R (95) 13 on
problems of criminal procedural law connected with information technology.

xxxx

214. For some States, the offences established in the Convention would normally not be
considered serious enough to permit interception of content data or, in some cases,
even the collection of traffic data. Nevertheless, such techniques are often crucial for
the investigation of some of the offences established in the Convention, such as those
involving illegal access to computer systems, and distribution of viruses and child
pornography. The source of the intrusion or distribution, for example, cannot be
determined in some cases without real-time collection of traffic data. In some cases,
the nature of the communication cannot be discovered without real-time interception
of content data. These offences, by their nature or the means of transmission, involve
the use of computer technologies. The use of technological means should, therefore,
be permitted to investigate these offences. xxx.

xxxx

216. Often, historical traffic data may no longer be available or it may not be relevant
as the intruder has changed the route of communication. Therefore, the real-time
collection of traffic data is an important investigative measure. Article 20 addresses
the subject of real-time collection and recording of traffic data for the purpose of
specific criminal investigations or proceedings.

xxxx

218. xxx. When an illegal distribution of child pornography, illegal access to a

computer system or interference with the proper functioning of the computer system
or the integrity of data, is committed, particularly from a distance such as through the
Internet, it is necessary and crucial to trace the route of the communications back
from the victim to the perpetrator. Therefore, the ability to collect traffic data in
respect of computer communications is just as, if not more, important as it is in
respect of purely traditional telecommunications. This investigative technique can
correlate the time, date and source and destination of the suspect’s communications
with the time of the intrusions into the systems of victims, identify other victims or
show links with associates.

219. Under this article, the traffic data concerned must be associated with specified
communications in the territory of the Party. The specified ‘communications’ are in the
plural, as traffic data in respect of several communications may need to be collected in
order to determine the human source or destination (for example, in a household where
several different persons have the use of the same telecommunications facilities, it may
be necessary to correlate several communications with the individuals’ opportunity to
use the computer system). The communications in respect of which the traffic data may
be collected or recorded, however, must be specified. Thus, the Convention does not
require or authorise the general or indiscriminate surveillance and collection of large
amounts of traffic data. It does not authorise the situation of ‘fishing expeditions’
where criminal activities are hopefully sought to be discovered, as opposed to specific
instances of criminality being investigated. The judicial or other order authorising the
collection must specify the communications to which the collection of traffic data
relates.

xxxx

225. Like real-time interception of content data, real-time collection of traffic data is

only effective if undertaken without the knowledge of the persons being investigated.
Interception is surreptitious and must be carried out in such a manner that the
communicating parties will not perceive the operation. Service providers and their
employees knowing about the interception must, therefore, be under an obligation of
secrecy in order for the procedure to be undertaken effectively. (Emphases supplied)

We can gather from the Explanatory Note that there are two seemingly conflicting ideas
before us that require careful balancing – the fundamental rights of individuals, on the
one hand, and the interests of justice (which may also involve the fundamental rights of
another person) on the other. There is no doubt that privacy is vital to the existence of a
democratic society and government such as ours. It is also critical to the operation of
our economy. Citizens, governments, and businesses should be able to deliberate and
make decisions in private, away from the inhibiting spotlight.[93] Certainly, this privacy
should be maintained in the electronic context as social, governmental and economic
transactions are made in this setting.[94] At the same time however, law enforcers must
be equipped with up-to-date tools necessary to protect society and the economy from
criminals who have also taken advantage of electronic technology. These enforcers must
be supplied with investigative instruments to solve crimes and punish the criminals.[95]

What is beyond debate, however, is that real-time collection of traffic data may be
absolutely necessary in criminal investigations such that, without it, authorities may
not be able to probe certain crimes at all. In fact, it has been found that crucial
electronic evidence may never be stored at all, as it may exist only in transient
communications.[96] The UN Office on Drugs and Crime requires real-time collection of
data because of the urgency, sensitivity, or complexity of a law enforcement
investigation.[97]

Hence, it is imprudent to precipitately make (1) an absolute declaration that all kinds

of traffic data from all types of sources are protected by the constitutional right to
privacy; and (2) a blanket pronouncement that the real-time collection thereof
may only be conducted upon a prior lawful order of the court to constitute a valid
search and seizure. Rather, the Court should impose a strict interpretation of Section
12 in the light of existing constitutional, jurisprudential and statutory guarantees and
safeguards.
The Constitutional
guarantee against
unreasonable search
and seizure is
inviolable.

The inviolable right against unreasonable search and seizure is enshrined in Article III of
the Constitution, which states:

Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

It is clear from the above that the constitutional guarantee does not prohibit all
searches and seizures, but only unreasonable ones.[98] As a general rule, a search and
seizure is reasonable when probable cause has been established. Probable cause is the
most restrictive of all thresholds. It has been broadly defined as those facts and
circumstances that would lead a reasonably discreet and prudent man to believe that an
offense has been committed, and that the objects sought in connection with the offense
are in the place sought to be searched.[99] It has been characterized as referring to
“factual  and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.”[100] Furthermore, probable cause is to be determined by
a judge prior to allowing a search and seizure. The judge’s determination shall be
contained in a warrant, which shall particularly describe the place to be searched and
the things to be seized. Thus, when no warrant is issued, it is assumed that there is no
probable cause to conduct the search, making that act unreasonable.

For the constitutional guarantee to apply, however, there must first be a search in the
constitutional sense.[101] It is only when there is a search that a determination of
probable cause is required. In Valmonte v. De Villa, the Court said that the constitutional
rule cannot be applied when mere routine checks consisting of “a brief question or two”
are involved.[102] The Court said that if neither the vehicle nor its occupants are
subjected to a search - the inspection of the vehicle being limited to a visual search -
there is no violation of an individual’s right against unreasonable searches and seizures.
Hence, for as long as there is no  physical intrusion upon a constitutionally protected
area, there is no search.[103]

In recent years, the Court has had occasion to rule[104] that a search occurs when the
government violates a person’s “reasonable expectation of privacy,” a doctrine first
enunciated in Katz v. United States.[105] Katz  signalled a paradigm shift, as the inquiry
into the application of the constitutional guarantee was now expanded beyond “the
presence or absence of a physical intrusion into any given enclosure” and deemed to
“[protect] people, not places.”[106] Under this expanded paradigm, the “reasonable
expectation of privacy” can be established if the person claiming it can show that (1) by
his conduct, he exhibited an expectation of privacy and (2) his expectation is one that
society recognizes as reasonable. In People v. Johnson,[107] which cited Katz, the seizure
and admissibility of the dangerous drugs found during a routine airport inspection were
upheld by the Court, which explained that “[p]ersons may lose the protection of the
search and seizure clause by exposure of their persons or property to the public in a
manner reflecting a lack of subjective expectation of privacy, which expectation society
is prepared to recognize as reasonable.”[108]

Traffic data per
se do not enjoy
privacy protection;
hence, no
determination of
probable cause is
needed for the real-
time collection
thereof.

The very public structure of the Internet and the nature of traffic data per se undermine
any reasonable expectation of privacy in the latter. The Internet is custom-designed to
frustrate claims of reasonable expectation of privacy in traffic data per se, since the
latter are necessarily disclosed to the public in the process of communication.

Individuals have no legitimate expectation of privacy in the data they disclose to the
public and should take the risks for that disclosure. This is the holding of the U.S.
Supreme Court in Smith v. Maryland.[109] The 1979 case, which has stood the test of time
and has been consistently applied by American courts in various communications cases -
including recent ones in the electronic setting - arose from a police investigation of
robbery. The woman who was robbed gave the police a description of the robber and of
a car she had observed near the scene of the crime. After the robbery, she began
receiving threatening phone calls from a man identifying himself as the robber. The car
was later found to be registered in the name of the petitioner, Smith. The next day, the
telephone company, upon police request, installed a pen register at its central offices to
record the numbers dialled from the telephone at the home of Smith. The register
showed that he had indeed been calling the victim’s house. However, since the
installation of the pen register was done without a warrant, he moved to suppress the
evidence culled from the device. In affirming the warrantless collection and recording
of phone numbers dialled by Smith, the U.S. Supreme Court said:

This claim must be rejected. First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All telephone users realize that they
must “convey” phone numbers to the telephone company, since it is through
telephone company switching equipment that their calls are completed. All
subscribers realize, moreover, that the phone company has facilities for making
permanent records of the numbers they dial, for they see a list of their long-distance
(toll) calls on their monthly bills. x x x.

xxxx

Second, even if petitioner did harbor some subjective expectation that the phone
numbers he dialed would remain private, this expectation is not “one that society is
prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U. S., at 361. This
Court consistently has held that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties. E.g., United States v. Miller, 425
U. S., at 442-444; x x x.[110] (Emphases supplied)

I am of the opinion that this Court may find the ruling in United States v. Forrester,
[111]
 persuasive. In that case, the U.S. 9th Circuit Court of Appeals applied the doctrine
in Smith to electronic communications, and ruled that Internet users have no
expectation of privacy in the to/from addresses of their messages or in the IP addresses
of the websites they visit. According to the decision, users should know that these bits
of information are provided to and used by Internet service providers for the specific
purpose of directing the routing of information. It then emphasized that this
examination of traffic data is “conceptually indistinguishable from government
surveillance of physical mail,” and that the warrantless search of envelope or routing
information has been deemed valid as early as the 19th century. The court therein
held:

We conclude that the [electronic] surveillance techniques the government employed

here are constitutionally indistinguishable from the use of a pen register that the
Court approved in Smith. First, e-mail and Internet users, like the telephone users
in  Smith, rely on third-party equipment in order to engage in
communication. Smith based its holding that telephone users have no expectation of
privacy in the numbers they dial on the users’ imputed knowledge that their calls are
completed through telephone company switching equipment. x x x. Analogously, e-mail
and Internet users have no expectation of privacy in the to/from addresses of their
messages or the IP addresses of the websites they visit because they should know that
this information is provided to and used by Internet service providers for the specific
purpose of directing the routing of information. Like telephone numbers, which
provide instructions to the “switching equipment that processed those numbers,” e-
mail to/from addresses and IP addresses are not merely passively conveyed through
third party equipment, but rather are voluntarily turned over in order to direct the
third party’s servers. x x x.

Second, e-mail to/from addresses and IP addresses constitute addressing information

and do not necessarily reveal any more about the underlying contents of
communication than do phone numbers. When the government obtains the to/from
addresses of a person’s e-mails or the IP addresses of websites visited, it does not find
out the contents of the messages or know the particular pages on the websites the
person viewed. At best, the government may make educated guesses about what was
said in the messages or viewed on the websites based on its knowledge of the e-mail
to/from addresses and IP addresses — but this is no different from speculation about
the contents of a phone conversation on the basis of the identity of the person or entity
that was dialed. x x x. Nonetheless, the Court in Smith and Katz drew a clear line
between unprotected addressing information and protected content information that
the government did not cross here.

The government’s surveillance of e-mail addresses also may be technologically

sophisticated, but it is conceptually indistinguishable from government surveillance of
physical mail. In a line of cases dating back to the nineteenth century, the Supreme
Court has held that the government cannot engage in a warrantless search of the
contents of sealed mail, but can observe whatever information people put on the
outside of mail, because that information is voluntarily transmitted to third parties. x x
x. E-mail, like physical mail, has an outside address “visible” to the third-party carriers
that transmit it to its intended location, and also a package of content that the sender
presumes will be read only by the intended recipient. The privacy interests in these two
forms of communication are identical. The contents may deserve Fourth Amendment
protection, but the address and size of the package do not.[112] (Emphases and
underscoring supplied)

Based on the cogent logic explained above, I share the view that Internet users have no
reasonable expectation of privacy in traffic data per se or in those pieces of information
that users necessarily provide to the ISP, a third party, in order for their communication
to be transmitted. This position is further bolstered by the fact that such communication
passes through as many ISPs as needed in order to reach its intended destination. Thus,
the collection and recording of these data do not constitute a search in the
constitutional sense. As such, the collection thereof may be done without the necessity
of a warrant.

Indeed, Professor Orin Kerr,[113] a prominent authority on electronic privacy, observes

that in the U.S., statutory rather than constitutional protections provide the essential
rules governing Internet surveillance law. He explains that the very nature of the
Internet requires the disclosure of non-content information, not only to the ISP
contracted by the user, but also to other computers in order for the communication to
reach the intended recipient. Professor Kerr explains thus:

Recall that the Fourth Amendment effectively carves out private spaces where law
enforcement can’t ordinarily go without a warrant and separates them from public
spaces where it can. One important corollary of this structure is that when a person
sends out property or information from her private space into a public space, the
exposure to the public space generally eliminates the Fourth Amendment
protection. If you put your trash bags out on the public street, or leave your private
documents in a public park, the police can inspect them without any Fourth
Amendment restrictions.

The Supreme Court’s cases interpreting this so-called “disclosure principle” have

indicated that the principle is surprisingly broad. For example, the exposure need not
be to the public. Merely sharing the information or property with another person
allows the government to go to that person to obtain it without Fourth Amendment
protection. x x x.

Why does this matter to Internet surveillance? It matters because the basic design of
the Internet harnesses the disclosure, sharing, and exposure of information to many
machines connected to the network. The Internet seems almost custom-designed to
frustrate claims of broad Fourth Amendment protection: the Fourth Amendment does
not protect information that has been disclosed to third-parties, and the Internet
works by disclosing information to third-parties. Consider what happens when an
Internet user sends an e-mail. By pressing “send” on the user’s e-mail program, the user
sends the message to her ISP, disclosing it to the ISP, with instructions to deliver it to the
destination. The ISP computer looks at the e-mail, copies it, and then sends a copy
across the Internet where it is seen by many other computers before it reaches the
recipient’s ISP. The copy sits on the ISP’s server until the recipient requests the e-mail;
at that point, the ISP runs off a copy and sends it to the recipient. While the e-mail may
seem like a postal mail, it is sent more like a post card, exposed during the course of
delivery.[114] (Emphases and underscoring supplied.)

Clearly, considering that the Internet highway is so public, and that non-content traffic
data, unlike content data, are necessarily exposed as they pass through the Internet
before reaching the recipient, there cannot be any reasonable expectation of privacy in
non-content traffic data per se.

Traffic data to be
collected are
explicitly limited to
non-content and
non-identifying
public information
which, unlike
content data, are
not constitutionally
protected.

The U.S. Supreme Court and Court of Appeals in the above cases emphasized the
distinction between content and non-content data, with only content data enjoying
privacy protection. In Smith the Court approved of the use of pen registers, pointing out
that “a pen register differs significantly from [a] listening device … for pen registers do
not acquire the contents of communications.”[115] Hence, the information derived from
the pen register, being non-content, is not covered by the constitutional protection.
In  Forrester, it was held that while the content of both e-mail and traditional mail are
constitutionally protected, the non-content or envelope information is not. On the
other hand, in the 2007 case Warshak v. United States,[116] the Sixth Circuit Court of
Appeals held that the contents of emails are protected. It employed the content/non-
content distinction in saying that the “combined precedents of Katz and Smith” required
a “heightened protection for the content of the communications.”[117] Consequently, it
found a strong “content-based privacy interest” in e-mails.[118]

Traffic data are of course explicitly restricted to non-content and non-identifying data
as defined in Section 12 of the Cybercrime Prevention Act itself. As such, it is plain that
traffic data per se are not constitutionally protected.

The distinction between content and non-content data, such as traffic data, is
important because it keeps the balance between protecting privacy and maintaining
public order through effective law enforcement. That is why our Congress made sure to
specify that the traffic data to be collected are limited to non-content data. For good
measure, it additionally mandated that traffic data be non-identifying.

Kerr explains how the distinction between content and non-content information in

electronic communication mirrors perfectly and logically the
established inside and outside distinction in physical space, as far as delineating the
investigative limitations of law enforcers is concerned. Inside space is constitutionally
protected, and intrusion upon it requires a court warrant; in contrast, surveillance
of outside space does not require a warrant because it is not a constitutionally
cognizable search. He explains thus:
Whereas the inside/outside distinction is basic to physical world investigations, the
content/non-content distinction is basic to investigations occurring over
communications networks. Communications networks are tools that allow their users
to send and receive communications from other users and services that are also
connected to the network. This role requires a distinction between addressing
information and contents. The addressing (or “envelope”) information is the data that
the network uses to deliver the communications to or from the user; the content
information is the payload that the user sends or receives.

xxxx

We can see the same distinctions at work with the telephone network. The telephone
network permits users to send and receive live phone calls. The addressing information
is the number dialed (“to”), the originating number (“from”), the time of the call, and its
duration. Unlike the case of letters, this calling information is not visible in the same way
that the envelope of a letter is. At the same time, it is similar to the information derived
from the envelope of a letter. In contrast, the contents are the call itself, the sound sent
from the caller’s microphone to the receiver’s speaker and from the receiver’s
microphone back to the caller’s speaker.

Drawing the content/non-content distinction is somewhat more complicated because

the Internet is multifunctional. x x x. Still, the content/non-content distinction holds in
the Internet context as well. The easiest cases are human-to-human communications
like e-mail and instant messages. The addressing information is the “to” and “from” e-
mail address, the instant message to and from account names, and the other
administrative information the computers generate in the course of delivery. As in the
case of letters and phone calls, the addressing information is the information that the
network uses to deliver the message. In contrast, the actual message itself is the
content of the communication. x x x x

The content/non-content distinction provides a natural replacement for the

inside/outside distinction. To apply the Fourth Amendment to the Internet in a
technologically neutral way, access to the contents of communications should be
treated like access to evidence located inside. Accessing the contents of
communications should ordinarily be a search. In contrast, access to non-content
information should be treated like access to evidence found outside. Collection of this
information should presumptively not be a search.

This translation is accurate because the distinction between content and non-content
information serves the same function online that the inside/outside distinction serves
in the physical world. Non-content information is analogous to outside information; it
concerns where a person is and where a person is going. Consider what the police can
learn by watching a suspect in public. Investigating officers can watch the suspect leave
home and go to different places. They can watch him go to lunch, go to work, and go to
the park; they can watch him drive home; and they can watch him park the car and go
inside. In effect, this is to/from information about the person’s own whereabouts.

On the other hand, content information is analogous to inside information. The

contents of communications reveal the substance of our thinking when we assume no
one else is around. It is the space for reflection and self-expression when we take
steps to limit the audience to a specific person or even just to ourselves. The contents
of Internet communications are designed to be hidden from those other than the
recipients, much like property stored inside a home is hidden from those who do not
live with us. x x x.

The connection between content/non-content on the Internet and inside/outside in

the physical world is not a coincidence. Addressing information is itself a network
substitute for outside information, and contents are a network substitute for inside
information. Recall the basic function of communications networks: they are systems
that send and receive communications remotely so that its users do not have to
deliver or pick up the communications themselves. The non-content information is the
information the network uses to deliver communications, consisting of where the
communication originated, where it must be delivered, and in some cases the path of
delivery. This information is generated in lieu of what would occur in public; it is
information about the path and timing of delivery. In contrast, the contents are the
private communications themselves that would have been inside in a physical
network.

xxxx

In light of this, a technologically neutral way to translate the Fourth Amendment from
the physical world to the Internet would be to treat government collection of the
contents of communications as analogous to the government collection of information
inside and the collection of non-content information as analogous to the collection of
information outside. x x x.

This approach would mirror the line that the Fourth Amendment imposes in the
physical world. In the physical world, the inside/outside distinction strikes a sensible
balance. It generally lets the government observe where people go, when they go, and
to whom they are communicating while protecting the actual substance of their
speech from government observation without a warrant unless the speech is made in
a setting open to the public. The content/non-content distinction preserves that
function. It generally lets the government observe where people go in a virtual sense,
and to observe when and with whom communications occur. The essentially
transactional information that would occur in public in a physical world has been
replaced by non-content information in a network environment, and the content/non-
content line preserves that treatment. At the same time, the distinction permits
individuals to communicate with others in ways that keep the government at bay. The
Fourth Amendment ends up respecting private areas where people can share their most
private thoughts without government interference both in physical space and
cyberspace alike.[119] (Emphases supplied.)

Indeed, there is a clear distinction between content and non-content data. The
distinction presents a reasonable conciliation between privacy guarantees and law
enforcement needs, since the distinction proceeds from logical differences between the
two in their nature and privacy expectations. According to a comprehensive UN study
on six international or regional cybercrime instruments,[120] which include provisions on
real-time collection of computer data, these instruments “make a distinction between
real-time collection of traffic data and of content data” to account for the “differences in
the level of intrusiveness into the private life of persons subject to each of the
measures.”[121]

From the above jurisprudence and scholarly analysis, there is enough basis to conclude
that, given the very public nature of the Internet and the nature of traffic data as non-
content and non-identifying information, individuals cannot have legitimate
expectations of privacy in traffic data per se.

Section 12, however,

suffers from lack of
procedural
safeguards to ensure
that the traffic data
to be obtained are
limited to non-
content and non-
identifying data, and
that they are
obtained only for the
limited purpose of
investigating specific
instances of
criminality.

Thus far, it has been shown that real-time collection of traffic data may be indispensable
in providing a crucial first lead in the investigation of criminality. Also, it has been
explained that there is clearly no legitimate expectation of privacy in traffic data per
se because of the nature of the Internet - it requires disclosure of traffic data which,
unlike content data, will then travel exposed as it passes through a very public
communications highway. It has also been shown that the definition of traffic data
under the law is sufficiently circumscribed to cover only non-content and non-
identifying data and to explicitly exclude content data. This distinction is important in
protecting privacy guarantees while supporting law enforcement needs.

However, Section 12 suffers from a serious deficiency. The narrow definition of traffic
data per se as non-content and non-identifying data is not supported by equally narrow
procedural criteria for the exercise of the authority to obtain them. The government
asserts that Section 12 provides for some protection against abuse. While this may be
true, the safeguards provided are not sufficient to protect constitutional guarantees.

Firstly, the provision does not indicate what the purpose of the collection would be,
since it only provides for “due cause” as a trigger for undertaking the activity. While the
government has explained the limited purpose of the collection of traffic data, which
purportedly can only go as far as providing an initial lead to an ongoing criminal
investigation primarily in the form of an IP address, this limited purpose is not explicit in
the assailed provision. Moreover, there is no assurance that the collected traffic data
would not be used for preventive purposes as well. Notably, the Solicitor-General
defines “due cause” as “good faith law enforcement reason”[122] or “when there’s a
complaint from a citizen that cybercrime has been committed.” According to the
Solicitor General this situation is “enough to trigger” a collection of traffic data.
[123]
 However, during the oral arguments, the Solicitor General prevaricated on whether
Section 12 could also be used for preventive monitoring. He said that there might be
that possibility, although the purpose would “largely” be for the investigation of an
existing criminal act.[124] This vagueness is disconcerting, since a preventive monitoring
would necessarily entail casting a wider net than an investigation of a specific instance
of criminality would. Preventive monitoring would correspondingly need more
restrictive procedural safeguards. This failure to provide an unequivocally specified
purpose is fatal because it would give the government the roving authority to obtain
traffic data for any purpose.[125]

Secondly, Section 12 does not indicate who will determine “due cause.” This failure to
assign the determination of due cause to a specific and independent entity opens the
floodgates to possible abuse of the authority to collect traffic data in real-time, since the
measure will be undertaken virtually unchecked. Also, while Section 12 contemplates
the collection only of data “associated with specified communications,” it does not
indicate who will make the specification and how specific it will be.

Finally, the collection of traffic data under Section 12 is not time-bound. This lack of
limitation on the period of collection undoubtedly raises concerns about the possibility
of unlimited collection of traffic data in bulk for purposes beyond the simple
investigation of specific instances of criminality.

Existing approaches
in other jurisdictions
for collection of
traffic data

To foreclose an Orwellian collection of traffic data in bulk that may lead to the invasion
of privacy, the relevant law must be canalized to accommodate only an acceptable
degree of discretion to law enforcers. It must provide for clear parameters and robust
safeguards for the exercise of the authority. Notably, the Solicitor General himself has
observed that stronger safeguards against abuse by law enforcers may have to be put in
place.[126] There are also indications that the legislature is willing to modify the law to
provide for stronger safeguards, as shown in the bills filed in both chambers of
Congress.[127]

In fashioning procedural safeguards against invasion of privacy, the rule of thumb

should be: the more intrusive the activity, the stricter the procedural safeguards. Other
countries have put in place some restrictions on the real-time collection of traffic data in
their jurisdictions. In the United States, the following are the requirements for the
exercise of this authority:

(1) relevance of the collected information to an ongoing criminal investigation;

(2) court order issued by a judicial officer based upon the certification of a government
attorney; and
(3) limitation of the period of collection to sixty days (with the possibility of extension).

In the United Kingdom, the following requirements must be complied with:

(1) necessity of the information to be collected for the investigation of crime, protection
of public safety, or a similar goal;
(2) approval of a high-level government official;
(3) proportionality of the collection to what is sought to be achieved; and
(4) limitation of the period of collection to thirty days.[128]

The above requirements laid down by two different jurisdictions offer different but
similar formulations. As to what the triggering threshold or purpose would be, it could
be the necessity threshold (for the investigation of crime, protection of public safety, or
a similar goal) used in the United Kingdom or the relevance threshold (to an ongoing
criminal investigation) in the United States. Note that these thresholds do not amount
to probable cause.

As to who determines compliance with the legal threshold that triggers the exercise of
the authority to collect traffic data in real time, the laws of the United States suggest
that special judicial intervention is required. This intervention would be a very strong
measure against the violation of privacy even if the judicial order does not require
determination of probable cause. At the same time, however, the general concern of
Justice Brion that “time is of the utmost essence in cyber crime law enforcement” needs
to be considered. Hence, procedural rules of court will have to be adjusted so as not to
unduly slow down law enforcement response to criminality considering how ephemeral
some information could be. We must ensure that these rules are not out of step with
the needs of law enforcement, given current technology. It may be noted that Justice
Carpio has broached the idea of creating 24-hour courts to address the need for speedy
law enforcement response.[129]

In the United Kingdom, the mechanism suggests that the authorizing entity need not be
a judge, as it could be a high-ranking government official. Perhaps this non-judicial
authorization proceeds from the consideration that since the triggering threshold is not
probable cause, but only necessity to an ongoing criminal investigation, there is no need
for a judicial determination of compliance with the aforesaid threshold.

The above requirements also provide limits on the period of collection of traffic data. In
the United States, the limit is 60 days with a possibility of extension. This period and the
possibility of extension are similar to those provided under our Anti-Wiretapping Law.
Note, however, that the Anti-Wiretapping Law concerns the content of communications
whereas the traffic data to be collected under Section 12 of the Cybercrime Prevention
Act is limited to non-content and non-identifying data. Hence, the restriction on the
period of collection could perhaps be eased by extending it to a longer period in the
case of the latter type of data. In the United Kingdom, the limit is 30 days.

From the above observation of the deficiencies of Section 12, as well as the samples
from other jurisdictions, the following general guidelines could be considered to
strengthen the safeguards against possible abuse.

First, the relevance or necessity of the collection of traffic data to an ongoing criminal
investigation must be established. This requirement to specify the purpose of the
collection (to aid ongoing criminal investigation) will have the effect of limiting the usage
of the collected traffic data to exclude dossier building, profiling and other purposes not
explicitly sanctioned by the law. It will clarify that the intention for the collection of
traffic data is not to create a historical data base for a comprehensive analysis of the
personal life of an individual whose traffic data is collected, but only for investigation of
specific instances of criminality. More important, it is not enough that there be an
ongoing criminal investigation; the real-time collection must be shown to be necessary
or at least relevant to the investigation. Finally, it should be explicitly stated that the
examination of traffic data will not be for the purpose of preventive monitoring which,
as observed earlier, would necessarily entail a greater scope than that involved in a
targeted collection of traffic data for the investigation of a specific criminal act.

Second, there must be an independent authority - judicial or otherwise - who shall

review compliance with the relevance and necessity threshold. The designation of this
authority will provide additional assurance that the activity will be employed only in
specific instances of criminal investigation and will be necessary or relevant. The
designation of an authorizing entity will also inhibit the unjustified use of real-time
collection of traffic data. The position of this person should be sufficiently high to ensure
greater accountability. For instance, it was suggested during the oral arguments that the
authorizing person be a lawyer of the national government in order to additionally
strengthen that person’s accountability, proceeding as it would from his being an officer
of the court.[130]

Third, there must be a limitation on the period of collection. The restriction on the

time period will further prevent the indiscriminate and bulk collection of traffic data
beyond what is necessary for a regular criminal investigation.

As to the type of technology to be used for collection, it seems that this cannot be
specified beforehand. Certainly, only a general restriction can be made – that the
technology should be capable of collecting only non-content and non-identifying traffic
data. It should not be able to directly point to the location of the users of the Internet,
the websites visited, the search words used, or any other data that reveal the thoughts
of the user.

In the end, whatever mechanism is to be set in place must satisfy the Constitution’s
requirements for the safeguard of the people’s right to privacy and against undue
incursions on their liberties.

Final Words

Laws and jurisprudence should be able to keep current with the exponential growth in
information technology.[131] The challenge is acute, because the rapid progress of
technology has opened up new avenues of criminality. Understandably, governments
try to keep pace and pursue criminal elements that use new technological avenues. It is
precisely during these times of zeal that the Court must be ever ready to perform its
duty to uphold fundamental rights when a proper case is brought before it.

The Court has carefully trod through the issues that have been heard in these Petitions,
especially since they involve the exercise of our power of judicial review over acts of the
legislature. I believe that we have tried to exercise utmost judicial restraint and
approached the case as narrowly as we could so as to avoid setting sweeping and
overreaching precedents.[132] We have thus prudently resolved the present Petitions
with the view in mind that a future re-examination of the law is still possible,
[133]
 especially when the constitutional challenges set forth become truly ripe for
adjudication. This is also so that we do not unduly tie the hands of the government
when it regulates socially harmful conduct in the light of sudden changes in technology,
especially since the regulation is meant to protect the very same fundamental rights
that petitioners are asking this Court to uphold.

However, we have also not hesitated to strike down as unconstitutional those

regulatory provisions that clearly transgress the Constitution and upset the balance
between the State’s inherent police power and the citizen’s fundamental rights. After
all, the lofty purpose of police power is to be at the loyal service of personal freedom.

WHEREFORE, I join the ponencia in resolving to leave the determination of the correct

application of Section 7 to actual cases, except as it is applied to libel. Charging an
offender both under Section 4(c)(4) of the Cybercrime Prevention Act and under Article
353 of the Revised Penal Code violates the guarantee against double jeopardy and
is VOID and UNCONSTITUTIONAL for that reason.

Moreover, I join in declaring the following as UNCONSTITUTIONAL:

1. Section 4(c)(4), insofar as it creates criminal liability on the part of persons who
receive a libelous post and merely react to it ;
2. Section 12, insofar as it fails to provide proper safeguards for the exercise of the
authority to collect traffic data in real time;
3. Section 19, also insofar as it fails to provide proper standards for the exercise of
the authority to restrict or block access to computer data.

However, I vote to declare Section 6 UNCONSTITUTIONAL, insofar as it applies to

Section 4(c)(4), for unduly curtailing freedom of speech.

As regards the remaining assailed provisions, I vote to DISMISS the Petitions for failure
to establish that a pre-enforcement judicial review is warranted at this time.

[1]
 Isagani A. Cruz, Constitutional Law, 1 (2000).
[2]
 See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA
579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, 19 March
2013; Gutierrez v. House of Representatives Committee on Justice, G.R. No. 193459, 15
February 2011, 643 SCRA 198; Francisco v. House of Representatives, 460 Phil. 830
(2003); Demetria v. Alba, 232 Phil. 222 (1987).
[3]
 Constitution, Art. VIII, Sec. 2(a).
[4]
 5 U.S. 137 (1803).
[5]
 Francisco v. House of Representatives, supra note 2 (citing U.S. v. Ang Tang Ho, 43 Phil
1 [1922]; McDaniel v. Apacible, 42 Phil 749 [1922] Concepcion v. Paredes, 42 Phil 599
[1921];  In re Prautch, 1 Phil. 132 [1902]; and Casanovas v. Hord, 8 Phil 125 [1907]).
[6]
 Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).
[7]
 Francisco v. House of Representatives, supra note 2; Gutierrez v. House of
Representatives Committee on Justice, supra note 2; Constitution, Art. VIII, Sec. 1.
[8]
 Oposa v. Factoran, G.R. No. 101083, 30 July 1993, 224 SCRA 792, 809.
[9]
 Francisco v. House of Representatives, supra note 2; Tañada v. Angara, 338 Phil. 546
(1997); Oposa v. Factoran, supra (citing Llamas v. Orbos, 279 Phil. 920 [1991]; Bengzon
v. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]); Gonzales v. Macaraig, 191
SCRA 452 [1990]; Coseteng v. Mitra, 187 SCRA 377 [1990]; Daza v. Singson, 259 Phil. 980
[1989]; and I Record, Constitutional Commission 434-436 [1986]).
[10]
 See: Francisco v. House of Representatives, supra note 2; United States v. Raines, 362
U.S. 17 (1960); and Angara v. Electoral Commission, supra note 6.
[11]
  Morfe v. Mutuc, 130 Phil. 415 (1968);  Angara v. Electoral Commission, supra.
[12]
 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450
(2008) (citing Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329
[2006]; and Regan v. Time, Inc., 468 U. S. 641, 652 [1984].
[13]
 Supra note 2.
[14]
 Supra note 2, at 922-923.
[15]
  Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
[16]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, 5 October 2010, 632 SCRA 146; David v. Macapagal-Arroyo, 522 Phil. 705, 753
(2006); Francisco v. House of Representatives, supra note 2, at 923-924; Angara v.
Electoral Commission, supra note 6.
[17]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra.
[18]
 Information Technology Foundation of the Philippines v. Commission on Elections, 499
Phil. 281 (2005) (citing Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227
[1937]); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra;  David v. Macapagal-Arroyo, supra note 16; Francisco v. House of
Representatives, supra note 2; Angara v. Electoral Commission, supra note 6.
[19]
  Lozano v. Nograles, G.R. Nos. 187883 & 187910, 16 June 2009, 589 SCRA 356.
[20]
 Information Technology Foundation of the Philippines v. Commission on Elections,
supra note 18; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra; Lozano v. Nograles, supra.
[21]
 Angara v. Electoral Commission, supra note 6, at 158-159.
[22]
 Vicente V. Mendoza, Judicial Review of Constitutional Questions: Cases and Materials
91 (2nd Ed. 2013) (Mendoza) (citing Paul A. Freund, “The Supreme Court,” in Talks on
American Law 81 [H. J. Berman Rev. Ed. 1972]).
[23]
 Paul A. Freund, “The Supreme Court,” in Talks on American Law 81 (H. J. Berman Rev.
Ed. 1972) (quoted in Mendoza, supra)
[24]
 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16.
[25]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16.
[26]
 Nevertheless, we ultimately found that the petitioners therein failed to show their
entitlement to a pre-enforcement judicial review of the Human Security Act of
2007. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16 (quoting Holder v. Humanitarian Law Project, 561 U.S. [unpaginated]
[2010]); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); See also: Babbitt v.
United Farm Workers National Union, 442 U.S. 289 (1979); Doe v. Bolton, 410 U.S. 179,
188-189 (1973) (citing Epperson v. Arkansas, 393 U.S. 97 [1968]);
[27]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16.
[28]
 See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16; De Castro v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012, 676 SCRA
579 (citing Buckley v. Valeo, 424 U.S. 1, 113-118 [1976]; Regional Rail Reorganization
Act Cases, 419 U.S. 102, 138-148 [1974]); Holder v. Humanitarian Law Project, 561 U.S.
1 (2010); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); Babbitt v. United
Farm Workers National Union, 442 U.S. 289 (1979) (citing Regional Rail Reorganization
Act Cases, 419 U.S. 102 [1974]; Steffel v. Thompson, 415 U.S. 452 [1974]; O’Shea v.
Littleton, 414 U.S. 488 [1974]; Doe v. Bolton, 410 U.S. 179 [1973]; Younger v. Harris, 401
U.S. 37 [1971]; Golden v. Zwickler, 394 U.S. 103 [1969]; Epperson v. Arkansas, 393 U.S.
97 [1968]; Evers v. Dwyer, 358 U.S. 202 [1958]; Pierce v. Society of Sisters, 268 U.S. 510
[1925]; Pennsylvania v. West Virginia, 262 U.S. 553 [1923]).
[29]
 G.R. No. 203325, Jose Jesus M. Disini, Jr. v. The Secretary of Justice.
[30]
 See Petition of Disini (G.R. No. 203335), pp. 22-23, 26-27; Petition of Reyes (G.R. No.
203407), p. 25; Petition of Castillo, (G.R. No. 203454), pp. 10-11; Petition of Cruz (G.R.
No. 203469), pp. 39-40; Petition of Philippine Internet Freedom Alliance (G.R. No.
203518), p. 9.
[31]
 See Petition of Adonis (G.R. No. 203378), p. 29; Petition of Sta. Maria (G.R. No.
203440), p. 22; Petition of Cruz (G.R. No. 203469), pp. 60-61; Petition of Philippine Bar
Association (GRN 203501), p. 19; Petition of Colmenares (G.R. No. 203509), p. 15;
Petition of National Press Club of the Philippines (G.R. No. 203515), pp. 16-17.
[32]
 See Petition of Adonis (G.R. No. 203378), p. 33; Petition of National Union of
Journalists of the Philippines (G.R. No. 203453), p. 11; Petition of National Press Club of
the Philippines (G.R. No. 203515), p. 9; Petition of Philippine Internet Freedom Alliance
(G.R. No. 203518), pp. 47-48; Petition of Philippine Bar Association (GRN 203501), p. 19.
[33]
 See Petition of Disini (G.R. No. 203335), pp. 10-12.
[34]
 Petition of Disini (G.R. No. 203335), pp. 10-12.
[35]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16 (citing David v. Macapagal-Arroyo, supra note 16; Romualdez v. Commission on
Elections, 576 Phil. 357 (2008).
[36]
  Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, supra note 16.
[37]
 Id.
[38]
  See: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R.
No. 178552, supra note 16.
[39]
 Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto, [Sep.
Op. of J. Mendoza], 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2; Ashwander v.
Tennessee Valley Authority, 297 U.S. 288 [1936]).
[40]
  Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra
note 16;  David v. Macapagal-Arroyo, supra note 16.
[41]
 G.R. No. 95770, 1 March 1993, 219 SCRA 256.
[42]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16; David v. Macapagal-Arroyo, supra note 16; Estrada v. Sandiganbayan, 421 Phil. 290
(2001).
[43]
 Id.
[44]
 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008) (citing Sabri v. United States, 541 U. S. 600, 609 [2004]).
[45]
 Petition of Disini, pp. 9-10. The computation of the imposable penalty in the Petition
seems to be erroneous. Insofar as the crime of libel is concerned, I have discussed below
that the imposable penalty in libel qualified by the use of ICT should be prisión
correccional in its maximum period to prisión mayor in its minimum period.
[46]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note
16.
[47]
 The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).
[48]
 Ramon C. Aquino, The Revised Penal Code – Vol. 1, 3 (1961) (Aquino).
[49]
 Id.
[50]
  See Aquino, at 8-11.
[51]
 Id. at 277; Luis B. Reyes, The Revised Penal Code – Criminal Law, Book One, 328
(2008) (Reyes).
[52]
  People v. Lab-eo, 424 Phil. 482 (2002); Reyes, supra.
[53]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra, at
705-706 (2008);  Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA
245.
[54]
 See: Jalosjos v. Commission on Elections, G.R. Nos. 193237 and 193536, 9 October
2012, 683 SCRA 1 (citing Lacuna v. Abes, 133 Phil. 770, 773-774 [1968]); Aratea v.
Commission on Elections, G.R. No. 195229, 9 October 2012, 683 SCRA 105.
[55]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note
51, at 705-706; cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
[56]
 Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v.
Mutia, 241 Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).
[57]
 See Revised Penal Code, Art. 61 (on rules for graduating penalties); Reyes, supra note
51, at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975, 62 SCRA 245.
[58]
 Probation Law, Sec. 4.
[59]
 Moreno v. Commission on Elections, G.R. No. 168550, 10 August 2006, 498 SCRA 547.
[60]
 Baclayon v. Mutia, 241 Phil. 126 (1984).
[61]
 See generally: Monsanto v. Factoran, G.R. No. 78239, 9 February 1989, 170 SCRA.
[62]
 Aquino, supra note 48, at 695-696 (citing People v. Montenegro, 68 Phil 659
[1939]; People v. Moran, 44 Phil. 387, 433 [1923]; Santos v. Superintendent, 55 Phil. 345
[1930]).
[63]
 Id.
[64]
 Id.
[65]
 Id.
[66]
 Id.
[67]
 Id.
[68]
 Id.
[69]
 Reyes, supra note 51, at 845.
[70]
  See also  TSN dated 15 January 2013, pp. 80-81.
[71]
 Senate Transcript of the Bicameral Conference Committee on the Disagreeing
Provisions of SBN 2796 and HBN 5808 (Cybercrime Prevention Act of 2012) (31 May
2012) 15th Congress, 2nd Regular Sess. at 43-47, 52-56 [hereinafter Bicameral
Conference Committee Transcript].
[72]
 Aquino, supra note 48, at 277 (citing People v. Bayot, 64 Phil. 269 [1937]).  See
also Vicente J. Francisco, The Revised Penal Code: Annotated and Commented, Book I,
414 (2nd Ed. 1954).
[73]
 Leonor D. Boado, Notes And Cases On The Revised Penal Code, 147 (2008)
[74]
 Id. at 146.
[75]
 Aquino, supra note 48, at 277.
[76]
 Quinto v. COMELEC, G.R. No. 189698, 22 February 2010 (citing Broadrick v.
Oklahoma 413 U.S. 601, 93 S.Ct. 2908 [1973]).
[77]
 321 Phil. 279 (1995).
[78]
 Id., at 346.
[79]
 Undersecretary of the Department of Justice Ernesto L. Pineda sent a letter to the
Secretary General of the Council of Europe dated 31 August 2007, expressing the wish of
the Philippine government to be invited to accede to the Convention on Cybercrime.
The Council of Europe granted the request in 2008. See Decision of the Council of
Europe on the Request by the Philippines to be invited to accede to the Convention on
Cybercrime, 1021st Meeting of the Ministers’ Deputies, dated 12 March 2008. Available
at , accessed on 12 September 2013.
[80]
 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281;
Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
[81]
 Jonathan Clough, Principles of Cybercrime, 22 (2010);
[82]
 Id.
[83]
 , accessed on 20 October 2013.
[84]
 Twenty-eight of COE’s members also belong to the European Union (EU). All its
member states have signed up to the European Convention on Human Rights, a treaty
designed to protect human rights, democracy and the rule of law. accessed on 20
October 2013.
[85]
 Canada, Japan, South Africa, and the United States.
[86]
 accessed on 20 October 2013.
[87]
 Supra note 28.
[88]
 Sumit ghosh et al., Editors, Cybercrimes: A Multidisciplinary Analysis, 330 (2010).
[89]
 Id. at 330-331.
[90]
 Id. at 331.
[91]
 Committee Report No. 30 on Senate Bill No. 2796 (12 September 2011), pp. 280-281;
Committee Report No. 30 on Senate Bill No. 2796 (13 December 2011), p. 804.
[92]
 Explanatory Report to the Convention on Cybercrime, [2001] COETSER 8 (23
November 2001), available at , accessed on 12 September 2013.
[93]
 Richard W. Downing. Columbia Journal of Transnational Law, Vol. 43, p. 743 (2005).
[94]
 Id.
[95]
 Id.
[96]
 United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime
(Draft), 130 (2013).
[97]
 Id.
[98]
 Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, 162 (2003).
[99]
 Tan v. Sy Tiong Gue, G.R. No. 174570, 17 February 2010, 613 SCRA 98, 106;
[100]
 Supra note 1 at 163, citing Brinegar v. United States, 338 U.S. 160, 175 (1949)
[101]
 Supra note 44.
[102]
 Id.
[103]
 See: United States v. Jones 132 S. Ct. 945, 950 n.3 (2012).
[104]
 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189; People
v. Johnson, 401 Phil 734 (2000).
[105]
 389 U.S. 347 (1967).
[106]
 Id.
[107]
 Supra note 104.
[108]
 Id.
[109]
 442 U.S. 735 (1979).
[110]
 Supra note 55.
[111]
 512 F.3d 500 (2007).
[112]
 512 F.3d 500 (2007).
[113]
 Fred C. Stevenson Research Professor, George Washington University Law School.
[114]
 Orin S. Kerr, Enforcing Privacy Rights: Communications Privacy: Lifting the “Fog” of
Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law,
54 Hastings L.J. 805 (2003).
[115]
 442 U.S. 735 (1979).
[116]
 490 F.3d 455, 470-71 (6th Cir. 2007).
[117]
 Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. &
Mary L. Rev. 2105, 2115 (2009).
[118]
 Id. The Sixth Circuit later granted a petition for rehearing en banc and skirted the
constitutional issue. It vacated the Decision upon a finding that the case was unripe.
[119]
 Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach,
62 Stan. L. Rev. 1005 (2010).
[120]
 These are: 1.) COMESA Draft Model Bill, Art. 38; 2.) Commonwealth Model Law, Art.
19; 3.) Council of Europe Cybercrime Convention, Art. 20; 4.) ITU/CARICOM/CTU Model
Legislative Texts, Art. 25; 5.) League of Arab States Convention, Art. 28 and 6.) Draft
African Union Convention, Art. 3-55.
[121]
 United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime
(Draft), 130 (2013).
[122]
 TSN dated 29 January 2013, p. 49.
[123]
 Id at 86.
[124]
 Id at 95-96.
[125]
 Ople v. Torres, 354 Phil. 948 (1998).
[126]
 TSN dated 29 January 2013, p. 48.
[127]
  See Senate Bill (SB) No. 126, “An Act Repealing Section 4(c) (4), Chapter II of
Republic Act No. 10175”; SB No. 11, “An Act Amending Section 6 of Republic Act 10175
Otherwise Known as an Act Defining Cybercrime, Providing For the Prevention,
Investigation and Imposition of Penalties Therefor and For Other Purposes”; SB No. 154,
“An Act Amending Republic Act No. 10175, Otherwise Known as the Cybercrime
Prevention Act of 2012”; SB No. 249, “An Act Repealing Sections 4 (c) (4), 5, 6, and 7 of
RA 10175, Otherwise Known as the Cybercrime Prevention Act of 2012”; SB Nos 53 and
1091 and House Bill (HB) No. 1086 or the Magna Carta for Philippine Internet Freedom;
HB No. 1132, “An Act Repealing Republic Act No. 10175 or the Cybercrime Prevention
Act of 2012.”
[128]
 Richard W. Downing, Shoring up the Weakest Link: What Lawmakers around the
World Need to Consider in Developing Comprehensive Laws to Combat Cybercrime, 43
Colum. J. Transnat’l L. 705 (2005).
[129]
 TSN dated 29 January 2013, p. 50.
[130]
 TSN dated 29 January 2013, p. 92.
[131]
 Ray Kurzweil, The Age of Spiritual Machines: When Computers Exceed Human
Intelligence, 13 (1999); Ray Kurzweil, The Law of Accelerating Returns, 7 March 2001,
available at , accessed on 29 September 2013.
[132]
  See: Francisco v. House of Representatives, supra note 2 (citing Estrada v. Desierto,
[Sep. Op. of J. Mendoza] 406 Phil. 1 [2001]; Demetria v. Alba, supra note 2;
and Ashwander v. Tennessee Valley Authority, 297 U.S. 288 [1936]).
[133]
  See: Republic v. Roque, G.R. No. 204603, 24 September 2013.

CONCURRING AND DISSENTING OPINION

[C]orporations of all shapes and sizes track what you buy, store and analyze our data,
and use it for commercial purposes; that’s how those targeted ads pop up on your
computer or smartphone. But all of us understand that the standards for government
surveillance must be higher. Given the unique power of the state, it is not enough for
leaders to say: trust us, we won’t abuse the data we collect. For history has too many
examples when that trust has been breached. Our system of government is built on the
premise that our liberty cannot depend on the good intentions of those in power; it
depends upon the law to constrain those in power. [1]

 President Barack Obama

17 January 2014, on National
Security Agency Reforms

CARPIO, J.:

I concur in striking down as unconstitutional Section 4(c)(3), Section 7, Section 12, and
Section 19 of Republic Act No. 10175 (RA 10175) (1) penalizing unsolicited commercial
speech; (2) allowing multiple prosecutions post-conviction under RA 10175; (3)
authorizing the warrantless collection in bulk of traffic data; and (4) authorizing the
extrajudicial restriction or blocking of access to computer data, respectively, for being
violative of the Free Speech, Search and Seizure, Privacy of Communication, and Double
Jeopardy Clauses.

I dissent, however, from the conclusion that (1) Article 354 of the Revised Penal Code
(Code) creating the presumption of malice in defamatory imputations, and (2) Section
4(c)(1) of RA 10175 penalizing “cybersex,” are not equally violative of the constitutional
guarantees of freedom of speech and expression. I therefore vote to declare Article 354
of the Code, as far as it applies to public officers and public figures, and Section 4(c)(1)
of RA 10175, unconstitutional for violating Section 4, Article III of the Constitution.

Article 354 of the Code Repugnant to the Free Speech Clause

Article 354’s Presumption of Malice

Irreconcilable with Free Speech Jurisprudence
On Libel of Public Officers and Public
Figures

Article 4(c)(4) of RA 10175 impliedly re-adopts Article 354 of the Code without any
qualification. Article 354 took effect three years[2] before the ratification of the 1935
Constitution that embodied the Free Speech Clause.[3] Unlike most of the provisions of
the Code which are derived from the Spanish Penal Code of 1870, Article 354 is based
on legislation[4] passed by the Philippine Commission during the American occupation.
Nevertheless, Article 354 is inconsistent with norms on free speech and free expression
now prevailing in both American and Philippine constitutional jurisprudence.

Article 354 provides as follows:

Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown,
except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions. (Italicization supplied)
While the text of Article 354 has remained intact since the Code’s enactment in 1930,
constitutional rights have rapidly expanded since the latter half of the last century,
owing to expansive judicial interpretations of broadly worded constitutional guarantees
such as the Free Speech Clause. Inevitably, judicial doctrines crafted by the U.S.
Supreme Court protective of the rights to free speech, free expression and free press
found their way into local jurisprudence, adopted by this Court as authoritative
interpretation of the Free Speech Clause in the Philippine Bill of Rights. One such
doctrine is the New York Times actual malice rule, named after the 1964 case in which it
was crafted, New York Times v. Sullivan.[5]

New York Times broadened the mantle of protection accorded to communicative

freedoms by holding that the “central meaning” of the Free Speech Clause is the
protection of citizens who criticize official conduct even if such criticism is defamatory
and false. True, the defamed public official may still recover damages for libel. However,
as precondition for such recovery, New York Times laid down a formidable evidentiary
burden[6] – the public official must prove that the false 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.”[7]

The broad protection New York Times extended to communicative rights of citizens and

the press vis-à-vis the conduct of public officials was grounded on the theory that
“unfettered interchange of ideas for the bringing about of political and social changes
desired by the people”[8] is indispensable in perfecting the experiment of self-
governance. As for erroneous statements, the ruling considered them “inevitable in free
debate, and that [they] must be protected if the freedoms of expression are to have the
‘breathing space’ that they need x x x to survive.”[9] The actual malice doctrine was later
made applicable to public figures.[10]

Six years after New York Times became U.S. federal law in 1964, this Court took note of
the actual malice doctrine as part of a trend of local and foreign jurisprudence enlarging
the protection of the press under the Free Speech Clause.[11] Since then, the Court has
issued a steady stream of decisions applying New York Times as controlling doctrine to
dismiss civil[12] and criminal[13] libel complaints filed by public officers or public figures. As
Justice Teehankee aptly noted:
The Court has long adopted the criterion set forth in the U.S. benchmark case of New
York Times Co. vs. Sullivan that “libel can claim no talismanic immunity from
constitutional limitations” that protect the preferred freedoms of speech and
press. Sullivan laid down the test of actual malice, viz. “(T)he constitutional guaranty of
freedom of speech and press prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice’ that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.” x x x.[14]
Indeed, just as the actual malice doctrine is enshrined in the U.S. First Amendment
jurisprudence, it too has become interwoven into our own understanding of the Free
Speech Clause of the Philippine Bill of Rights of the 1973 and 1987 Constitutions.[15]

The actual malice rule enunciates three principles, namely:

1) Malice is not presumed even in factually false and defamatory statements against
public officers and public figures; it must be proven as a fact for civil and criminal
liability to lie;
2) Report on official proceedings or conduct of an officer may contain fair comment,
including factually erroneous and libelous criticism; and
3) Truth or lack of reckless disregard for the truth or falsity of a defamatory
statement is an absolute defense against public officers and public figures.
In contrast, Article 354, in relation to Article 361 and Article 362 of the Code, operates
on the following principles:
1) Malice is presumed in every defamatory imputation, even if true (unless good
intention and justifiable motives are shown);
2) Report on official proceedings or conduct of an officer must be made without
comment or remarks, or, alternatively, must be made without malice;[16] and
3) In defamatory allegations made against a public official, truth is a defense only if the
imputed act or omission constitutes a crime or if the imputed act or omission relates
to official duties.[17]
The actual malice rule and Article 354 of the Code impose contradictory rules on (1) the
necessity of proof of malice in defamatory imputations involving public proceedings or
conduct of a public officer or public figure; and (2) the availability of truth as a defense
in defamatory imputations against public officials or public figures. The former requires
proof of malice and allows truth as a defense unqualifiedly, while the latter presumes
malice and allows truth as a defense selectively. The repugnancy between the actual
malice rule and Article 354 is clear, direct and absolute.

Nonetheless, the Office of the Solicitor General (OSG) argues for the retention of Article
354 in the Code, suggesting that the Court can employ a “limiting construction” of the
provision to reconcile it with the actual malice rule.[18] The ponencia appears to agree,
holding that the actual malice rule “impl[ies] a stricter standard of ‘malice’ x x x where
the offended party is a [public officer or] public figure,” the “penal code and, implicitly,
the cybercrime law mainly target libel against private persons.”[19]

Allowing a criminal statutory provision clearly repugnant to the Constitution, and

directly attacked for such repugnancy, to nevertheless remain in the statute books is a
gross constitutional anomaly which, if tolerated, weakens the foundation of
constitutionalism in this country. “The Constitution is either a superior, paramount law,
x x x or it is on a level with ordinary legislative acts,”[20] and if it is superior, as we have
professed ever since the Philippines operated under a Constitution, then “a law
repugnant to the Constitution is void.”[21]

Neither does the ponencia’s claim that Article 354 (and the other provisions in the Code
penalizing libel) “mainly target libel against private persons” furnish justification to let
Article 354 stand. First, it is grossly incorrect to say that Article 354 “mainly target[s]
libel against private persons.” Article 354 expressly makes reference to news reports of
“any judicial, legislative or other official proceedings” which necessarily involve public
officers as principal targets of libel. Second, the proposition that this Court ought to
refrain from exercising its power of judicial review because a law is constitutional when
applied to one class of persons but unconstitutional when applied to another class is
fraught with mischief. It stops this Court from performing its duty,[22] as the highest
court of the land, to “say what the law is” whenever a law is attacked as repugnant to
the Constitution. Indeed, it is not only the power but also the duty of the Court to
declare such law unconstitutional as to one class, and constitutional as to another, if
valid and substantial class distinctions are present.

Undoubtedly, there is a direct and absolute repugnancy between Article 354, on one
hand, and the actual malice rule under the Free Speech Clause, on the other hand.
Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification, giving
rise to a clear and direct conflict between the re-adopted Article 354 and the Free
Speech Clause based on prevailing jurisprudence. It now becomes imperative for this
Court to strike down Article 354, insofar as it applies to public officers and public figures.

The ramifications of thus striking down Article 354 are: (1) for cases filed by public
officers or public figures, civil or criminal liability will lie only if the complainants prove,
through the relevant quantum of proof, that the respondent made the false defamatory
imputation with actual malice, that is, with knowledge that it was false or with reckless
disregard of whether it was false or not; and (2) for cases filed by private individuals, the
respondent cannot raise truth as a defense to avoid liability if there is no good intention
and justifiable motive.

Section 4(c)(1) Fails Strict Scrutiny

Section 4(c)(1) which provides:

Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.
is attacked by petitioners as unconstitutionally overbroad. Petitioners in G.R. No.
203378 contend that Section 4(c)(1) sweeps in protected online speech such as “works
of art that depict sexual activities” which museums make accessible to the public for a
fee.[23] Similarly, the petitioner in G.R. No. 203359, joining causes with the petitioner in
G.R. No. 203518, adopts the latter’s argument that the crime penalized by Section 4(c)
(1) “encompasses even commercially available cinematic films which feature adult
subject matter and artistic, literary or scientific material and instructional material for
married couples.”[24]

The OSG counters that Section 4(c)(1) does not run afoul with the Free Speech Clause
because it merely “seeks to punish online exhibition of sexual organs and activities or
cyber prostitution and white slave trade for favor or consideration.”[25] It adds that
“publication of pornographic materials in the internet [is] punishable under Article 201
of the Revised Penal Code x x x which has not yet been declared
unconstitutional.”[26] The ponencia agrees, noting that the “subject” of Section 4(c)(1) is
“not novel” as it is allegedly covered by two other penal laws, Article 201 of the Code
and Republic Act No. 9208 (The Anti-Trafficking in Persons Act of 2003 [RA 9208]).
The ponencia rejects the argument that Section 4(c)(1) is overbroad because “it stands a
construction that makes it apply only to persons engaged in the business of maintaining,
controlling, or operating x x x the lascivious exhibition of sexual organs or sexual activity,
with the aid of a computer system.”[27]

The government and the ponencia’s position cannot withstand analysis.

As Section 4(c) of RA 10175 itself states, the crimes defined under that part of RA 10175,
including Section 4(c)(1), are “Content-related Offenses,” penalizing the content of
categories of online speech or expression. As a content-based regulation, Section 4(c)(1)
triggers the most stringent standard of review for speech restrictive laws – strict
scrutiny – to test its validity.[28] Under this heightened scrutiny, a regulation will pass
muster only if the government shows (1) a compelling state interest justifying the
suppression of speech; and (2) that the law is narrowly-tailored to further such state
interest. On both counts, the government in this case failed to discharge its burden.

The state interests the OSG appears to advance as bases for Section 4(c)(1) are: (1) the
protection of children “as cybersex operations x x x are most often committed against
children,” and (2) the cleansing of cyber traffic by penalizing the online publication of
pornographic images.[29] Although legitimate or even substantial, these interests fail to
rise to the level of compelling interests because Section 4(c)(1) is both
(1) overinclusive in its reach of the persons exploited to commit the offense of cybersex,
and (2) underinclusive in its mode of commission. These defects expose a legislative
failure to narrowly tailor Section 4(c)(1) to tightly fit its purposes.

As worded, Section 4(c)(1) penalizes the “willful engagement, maintenance, control, or

operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.” On the first
interest identified by the government, the overinclusivity of this provision rests on the
lack of a narrowing clause limiting its application to minors. As a result, Section 4(c)(1)
penalizes the “lascivious exhibition of sexual organs of, or sexual activity”
involving minors and adults, betraying a loose fit between the state interest and the
means to achieve it.

Indeed, the proffered state interest of protecting minors is narrowly advanced not by
Section 4(c)(1) but by the provision immediately following it, Section 4(c)(2), which
penalizes online child pornography. Section 4(c)(2) provides:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a
computer system x x x.
Republic Act No. 9775 defines “Child pornography” as referring to –
any representation, whether visual, audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other means, of child engaged or involved
in real or simulated explicit sexual activities.[30] (Emphasis supplied)
Under Section 3 of that law, the term “explicit sexual activities” is defined as follows:
Section 3. Definition of terms. –

xxxx

(c) “Explicit Sexual Activity” includes actual or simulated –

    (1) As to form:

(i) sexual intercourse or lascivious act including, but not limited to, contact involving
genital to genital, oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;

xxxx

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus[.]
(Emphasis supplied)
Clearly then, it is Section 4(c)(2), not Section 4(c)(1), that narrowly furthers the state
interest of protecting minors by punishing the “representation x x x by electronic
means” of sexually explicit conduct including the exhibition of sexual organs of, or
sexual acts, involving minors. Section 4(c)(1) does not advance such state interest
narrowly because it is broadly drawn to cover both minors and adults. Section 4(c)(2) is
constitutional because it narrowly prohibits cybersex acts involving minors only, while
Section 4(c)(1) is unconstitutional because it expands the prohibition to cybersex acts
involving both minors and adults when the justification for the prohibition is to protect
minors only.

The overinclusivity of Section 4(c)(1) vis-a-vis the second state interest the government

invokes results from the broad language Congress employed to define “cybersex.” As
the petitioners in G.R. No. 203378, G.R. No. 203359 and G.R. No. 203518 correctly point
out, the crime of “lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration” embraces within its ambit “works of art
that depict sexual activities” made accessible to the public for a fee or “commercially
available cinematic films which feature adult subject matter and artistic, literary or
scientific material and instructional material for married couples.”[31] Congress could
have narrowly tailored Section 4(c)(1) to cover only online pornography by hewing
closely to the Miller test – the prevailing standard for such category of unprotected
speech, namely, “an average person, applying contemporary standards would find [that]
the work, taken as a whole, appeals to the prurient interest by depict[ing] or
describ[ing] in a patently offensive way, sexual conduct specifically defined by the
applicable x x x law and x x x, taken as a whole, lacks serious literary, artistic, political, or
scientific value.”[32]

Moreover, Section 4(c)(1) penalizes “any lascivious exhibition of sexual organs or sexual

activity, with the aid of a computer system, for favor or consideration.” There are many
fee-based online medical publications that illustrate sexual organs and even sexual acts.
Section 4(c)(1) will now outlaw all these online medical publications which are needed
by doctors in practicing their profession. This again shows the overinclusiveness of
Section 4(c)(1) in violation of the Free Speech Clause.

The loose fit between the government interests of cleansing the Internet channels of
immoral content and of protecting minors, on the one hand, and the means employed
to further such interests, on the other hand, is highlighted by the underincluvisity of
Section 4(c)(1) insofar as the manner by which it regulates content of online speech.
Section 4(c)(1) limits the ambit of its prohibition to fee-based websites exhibiting sexual
organs or sexual activity. In doing so, it leaves outside its scope and unpunished under
Section 4(c)(1) non-fee based porn websites, such as those generating income through
display advertisements. The absence of regulation under Section 4(c)(1) of undeniably
unprotected online speech in free and open porn websites defeats the advancement of
the state interests behind the enactment of Section 4(c)(1) because unlike fee-based
online porn websites where the pool of viewers is narrowed down to credit card-owning
subscribers who affirm they are adults, free and open porn websites are accessible to
all, minors and adults alike. Instead of purging the Internet of pornographic content,
Section 4(c)(1) will trigger the proliferation of free and open porn websites which, unlike
their fee-based counterparts, are not subject to criminal regulation under Section 4(c)
(1). What Section 4(c)(1) should have prohibited and penalized are free and open porn
websites which are accessible by minors, and not fee-based porn websites which are
accessible only by credit card-owning adults, unless such fee-based websites cater to
child pornography, in which case they should also be prohibited and penalized.

It is doubtful whether Congress, in failing to tailor Section 4(c)(1) to narrowly advance

state interests, foresaw this worrisome and absurd effect. It is, unfortunately, an
altogether common by-product of loosely crafted legislations.

Contrary to the ponencia’s conclusion, Section 4(c)(1) does not cover “the same subject”
as Article 201 of the Code and RA 9208. Article 201 penalizes “Immoral
doctrines, obscene publications and exhibitions and indecent shows” as understood
under the Miller test.[33] On the other hand, RA 9208 penalizes trafficking in persons (or
its promotion) for illicit purposes (Section 4[a]). The fact that these statutory provisions
remain valid in the statute books has no bearing on the question whether a statutory
provision penalizing the “lascivious exhibition of sexual organs or sexual activity, with
the aid of a computer system, for favor or consideration” offends the Free Speech
Clause.
The majority’s decision to uphold the validity of Section 4(c)(1) reverses, without
explanation, the well-entrenched jurisprudence in this jurisdiction applying the
obscenity test of Miller. Just five years ago in 2009, this Court unanimously
applied Miller in Soriano v. Laguardia[34] to test whether the statements aired on late
night TV qualified for protection under the Free Speech Clause. Much earlier in 2006,
the Court also applied Miller to review a conviction for violation of Article 201 of the
Code on obscene publications in Fernando v. Court of Appeals.[35] It was in Pita v. Court
of Appeals,[36] however, decided in 1989 over a decade after Miller, where the Court had
first occasion to describe Miller as “the latest word” in the evolution of the obscenity
test in the U.S. jurisdiction. Indeed, as I noted in my separate opinion
in Soriano, Miller is an “expansion” of previous tests on pornography developed in the
U.S. and English jurisdictions, liberalizing the elements of previous tests
(Hicklin and Roth):
The leading test for determining what material could be considered obscene was the
famous Regina v. Hicklin case wherein Lord Cockburn enunciated thus:
I think the test of obscenity is this, whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall.
Judge Learned Hand, in United States v. Kennerly, opposed the strictness of the Hicklin
test even as he was obliged to follow the rule. He wrote:
I hope it is not improper for me to say that the rule as laid down, however consonant it
may be with mid-Victorian morals, does not seem to me to answer to the understanding
and morality of the present time.
Roth v. United States laid down the more reasonable and thus, more acceptable test for
obscenity: "whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to prurient
interest." Such material is defined as that which has "a tendency to excite lustful
thoughts," and "prurient interest" as "a shameful or morbid interest in nudity, sex, or
excretion."

Miller v. California merely expanded the Roth test to include two additional criteria: "the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and the work, taken as whole, lacks serious literary,
artistic, political, or scientific value." The basic test, as applied in our jurisprudence,
extracts the essence of both Roth and Miller – that is, whether the material appeals to
prurient interest.[37] (Italicization supplied; internal citations omitted)
Miller is the modern obscenity test most protective of speech uniformly followed in this
jurisdiction for over two decades. The majority, in upholding Section 4(c)(1) and
rejecting Miller, regresses to less protective frameworks of speech analysis. Because
neither the ponencia nor the concurring opinions devote discussion on this doctrinal
shift, one is left guessing whether the Philippine jurisdiction’s test on pornography has
reverted only up to Roth or reaches as far back as the discredited Hicklin test. Either
way, the lowered protection afforded to works claimed as obscene turns back the clock
of free expression protection to the late 1960s and beyond when prevailing mores of
morality are incongruous to 21st century realities.

Section 4(c)(3) Repugnant to the Free Speech Clause

Section 4(c)(3) of RA 10175 makes criminal the transmission through a computer system
of “electronic communication x x x which seek to advertise, sell, or offer for sale
products and services” unless they fall under three categories of exceptions. These
categories are: (1) the recipient of the commercial message “gave prior affirmative
consent” to do so; (2) the

“primary intent” of the commercial message “is for service and/or administrative
announcements from the sender” to its “users, subscribers or customers”; and (3) the
commercial message (a) has an “opt-out” feature; (b) has a source which is “not
purposely disguise[d]”; and (c) “does not purposely include misleading information x x x
to induce the recipient to read the message.” According to the OSG, Congress enacted
Section 4(c)(3) to improve the “efficiency of commerce and technology” and prevent
interference with “the owner’s peaceful enjoyment of his property [computer
device].”[38]

Section 4(c)(3) fails scrutiny. Section 4(c)(3) impermissibly restricts the flow of truthful
and non-misleading commercial speech in cyberspace that does not fall under any of the
exceptions in Section 4(c)(3), lowering the protection it enjoys under the Free Speech
Clause.[39] Section 4(c)(3) would be constitutional if it allowed the free transmission of
truthful and non-misleading commercial speech, even though not falling under any of
the exceptions in Section 4(c)(3). There is no legitimate government interest in
criminalizing per se the transmission in cyberspace of truthful and non-misleading
commercial speech.

Under the exception clauses of Section 4(c)(3), commercial speech may be transmitted
online only when (1) the recipient has subscribed to receive it (“opted-in”); or (2) the
commercial speech, directed to its “users, subscribers or customers,” contains
announcements; or (3) the undisguised, non-misleading commercial speech has an “opt-
out” feature. The combination of these exceptions results in penalizing the transmission
online (1) of commercial speech with no “opt-out” feature to non-subscribers, even if
truthful and non-misleading; and (2) of commercial speech which does not relay
“announcements” to subscribers, even if truthful and non-misleading. Penalizing the
transmission of these protected categories of commercial speech is devoid of any
legitimate government interest and thus violates the Free Speech Clause.

Indeed, the free flow of truthful and non-misleading commercial speech online should
remain unhampered to assure freedom of expression of protected speech. In
cyberspace, the free flow of truthful and non-misleading commercial speech does not
obstruct the public view or degrade the aesthetics of public space in the way that
billboards and poster advertisements mar the streets, highways, parks and other public
places. True, commercial speech does not enjoy the same protection as political speech
in the hierarchy of our constitutional values. However, any regulation of truthful and
non-misleading commercial speech must still have a legitimate government purpose.
Regulating truthful and non-misleading commercial speech does not result in “efficiency
of commerce and technology” in cyberspace.

In fact, the free flow of truthful and non-misleading commercial speech should be
encouraged in cyberspace for the enlightenment of the consuming public, considering
that it is cost-free to the public and almost cost-free to merchants. Instead of using
paper to print and mail truthful and non-misleading commercial speech, online
transmission of the same commercial message will save the earth's dwindling forests
and be more economical, reducing marketing costs and bringing down consumer prices.
If any regulation of truthful and non-misleading commercial speech is to take place, its
terms are best fixed through the interplay of market forces in cyberspace. This is
evident, in fact, in the menu of options currently offered by email service providers to
deal with unwanted or spam email, allowing their account holders to customize
preferences in receiving and rejecting them. Unwanted or spam emails automatically go
to a separate spam folder where all the contents can be deleted by simply checking the
“delete all” box and clicking the delete icon. Here, the account holders are given
the freedom to read, ignore or delete the unwanted or spam email with hardly any
interference to the account holders' peaceful enjoyment of their computer device.
Unless the commercial speech transmitted online is misleading or untruthful, as
determined by courts, government should step aside and let this efficient self-regulatory
market system run its course.

Section 7 of RA 10175 Repugnant to the Double Jeopardy and Free Speech Clauses

The petitioners in G.R. No. 203335 and G.R. No. 203378 attack the constitutionality of
Section 7, which makes conviction under RA 10175 non-prejudicial to “any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws,” for
being repugnant to the Double Jeopardy Clause. The OSG sees no merit in the claim,
citing the rule that “a single set of acts may be prosecuted and penalized under two
laws.”[40]

The OSG misapprehends the import of Section 7. Although RA 10175 defines and
punishes a number of offenses to which Section 7 applies, its application to the offense
of online libel under Section 4(c)(4) of RA 10175, in relation to the offense of libel under
Article 353 of the Code, suffices to illustrate its unconstitutionality for trenching the
Double Jeopardy and Free Speech Clauses.

RA 10175 does not define libel. Its definition is found in the Code (Article 353) which
provides:
Definition of libel - A libel is a public and malicious imputation of a crime or of a vice or
defect, real or imaginary, or any act, omission, condition, status or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.
As defined, the medium through which libel is committed is not an element of such
offense. What is required of the prosecution are proof of the (1) statement of a
discreditable act or condition of another person; (2) publication of the charge; (3)
identity of the person defamed; and (4) existence of malice.[41] The irrelevance of the
medium of libel in the definition of the crime is evident in Article 355 of the Code which
punishes libel with a uniform penalty[42] whether it is committed “by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.”

RA 10175 adopts the Code's definition of libel by describing online libel under Section
4(c)(4) as “[t]he unlawful or prohibited acts as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means
which may be devised in the future.” By adopting the Code's definition of libel, Section
4(c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article
355 of the Code. Section 4(c)(4) merely adds the media of “computer system or any
other similar means which may be devised in the future” to the list of media
enumerated in Article 355. This is understandable because at the time the Code was
enacted in 1930, the Internet was non-existent. In the words of the OSG itself (in
contradiction to its position on the constitutionality of Section 7), Congress enacted
Section 4(c)(4) not to create a new crime, but merely to “ma[ke] express an
avenue already covered by the term 'similar means' under Article 355, to keep up with
the times”:
Online libel is not a new crime. Online libel is a crime punishable under x x x Article 353,
in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an
avenue already covered by the term “similar means” under Article 355, to keep up with
the times.[43] (Emphasis supplied)
For purposes of double jeopardy analysis, therefore, Section 4(c)(4) of RA 10175 and
Article 353 in relation to Article 355 of the Code define and penalize the same
offense of libel. Under the Double Jeopardy

Clause, conviction or acquittal under either Section 4(c)(4) or Article 353 in relation to
Article 355 constitutes a bar to another prosecution for the same offense of libel.

The case of petitioners Ellen Tordesillas, Harry Roque and Romel Bagares in G.R. No.
203378 provides a perfect example for applying the rules on print and online libel in
relation to the Double Jeopardy Clause. These petitioners write columns which are
published online and in print by national and local papers.[44] They allege, and
respondents do not disprove, that “their columns see publication in both print and
online versions of the papers they write for.”[45] Should these petitioners write columns
for which they are prosecuted and found liable under Section 4(c)(4) of RA 10175 for
online libel the Double Jeopardy Clause bars their second prosecution for print libel for
the same columns upon which their first conviction rested, under Article 353 in relation
to Article 355 of the Code. Such constitutional guarantee shields them from being twice
put in jeopardy of punishment for the same offense of libel.

The foregoing analysis applies to all other offenses defined and penalized under the
Code or special laws which (1) are penalized as the same offense under RA 10175
committed through the use of a computer system; or (2) are considered aggravated
offenses under RA 10175. Conviction or acquittal under the Code or such special laws
constitutes a bar to the prosecution for the commission of any of the offenses defined
under RA 10175. Thus, for instance, conviction or acquittal under Section 4(a) of RA
9775 (use of a child to create child pornography[46]) constitutes a bar to the prosecution
for violation of Section 4(c)(2) of RA 19175 (online child pornography) and vice versa.
This is because the offense of child pornography under RA 9775 is the same offense of
child pornography under RA 10175 committed through the use of a computer system.

Section 7 of RA 10175 also offends the Free Speech Clause by assuring multiple
prosecutions of those who fall under the ambit of Section 4(c)(4). The specter of
multiple trials and sentencing, even after conviction under RA 10175, creates a
significant and not merely incidental chill on online speech. Section 7 stifles speech in
much the same way that excessive prison terms for libel, subpoenas to identify
anonymous online users or high costs of libel litigation do. It has the effect of making
Internet users “steer far wide of the unlawful zone”[47] by practicing self-censorship,
putting to naught the democratic and inclusive culture of the Internet where anyone can
be a publisher and everyone can weigh policies and events from anywhere in the world
in real time. Although Section 7, as applied to Section 4(c)(4), purports to strengthen the
protection to private reputation that libel affords, its sweeping ambit deters not only
the online publication of defamatory speech against private individuals but also the
online dissemination of scathing, false, and defamatory statements against public
officials and public figures which, under the actual malice rule, are conditionally
protected. This chilling effect on online communication stifles robust and uninhibited
debate on public issues, the constitutional value lying at the core of the guarantees of
free speech, free expression and free press.

Section 12 of RA 10175 Violative of the Search and Seizure and Privacy of

Communication Clauses

Section 12 of RA 10175 grants authority to the government to record in bulk and in real
time electronic data transmitted by means of a computer system,[48] such as through
mobile phones and Internet-linked devices. The extent of the power granted depends
on the type of electronic data sought to be recorded, that is, whether traffic data or
non-traffic data (“all other data”). For traffic data, which RA 10175 defines as “the
communication’s origin, destination, route, time, date, size, duration, or type of
underlying service,” the government, for “due cause” can record them on its own or
with the aid of service providers, without need of a court order. For non-traffic data
collection, a “court warrant” is required based on reasonable grounds that the data to
be collected is “essential” for the prosecution or prevention of violation of any of the
crimes defined under RA 10175. The full text of Section 12 provides:
Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause,
shall be authorized to collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed: (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
Section 12 of RA 10175 is the statutory basis for intelligence agencies of the government
to undertake warrantless electronic data surveillance and collection in bulk to
investigate and prosecute violations of RA 10175.

Section 12 fails constitutional scrutiny. Collection in bulk of private and personal

electronic data transmitted through telephone and the Internet allows the government
to create profiles of the surveilled individuals’ close social associations, personal
activities and habits, political and religious interests, and lifestyle choices expressed
through these media. The intrusion into their private lives is as extensive and thorough
as if their houses, papers and effects are physically searched. As such, collection in bulk
of such electronic data rises to the level of a search and seizure within the meaning of
the Search and Seizure Clause, triggering the requirement for a judicial warrant
grounded on probable cause. By vesting the government with authority to undertake
such highly intrusive search and collection in bulk of personal digital data without
benefit of a judicial warrant, Section 12 is unquestionably repugnant to the guarantee
under the Search and Seizure Clause against warrantless searches and seizures.

Further, Section 12 allows the use of advanced technology to impermissibly narrow the
right to privacy of communication guaranteed under the Privacy of Communications
Clause. Although such clause exempts from its coverage searches undertaken “when
public safety or order requires otherwise, as prescribed by law,” Section 12 is not a
“law” within the contemplation of such exception because it does not advance the
interest of “public safety or order.” Nor does it comply with the warrant requirement
which applies to all searches of communication and correspondence not falling under
recognized exceptions to the Search and Seizure Clause, such as the search of non-legal
communication sent and received by detainees[49] search of electronic data stored in
government issued computers,[50] or security searches at airports.[51]

Scope of Information Subject of Real-Time Extrajudicial Collection and Analysis by

Government

Section 12’s definition of traffic data – the communication’s origin, destination, route,
time, date, size, duration, or type of underlying service – encompasses the following
information for mobile phone, Internet and email communications:
Mobile phone:

telephone number of the caller

telephone number of the person called
location of the caller
location of the person called
the time, date, and duration of the call
(For messages sent via the Short Messaging System, the same information are available
save for the duration of the communication.)

Email:

date
time
source
destination and size
attachment/s
country of sender and recipient
city of sender and recipient
Internet:

search keywords
public IP (Internet Protocol) of user
geolocation of user
client’s name (for smartphone, PC or desktop)
browser
OS (Operating System)
URL (Universal Source Locator)
date and time of use
Unlike personal information which form part of the public domain (hence, readily
accessible) because their owners have either disclosed them to the government as a
result of employment in that sector or are part of transactions made with regulatory
agencies (such as the land transportation, passport and taxing agencies), the
information indicated above are personal and private. They reveal data on the social
associations, personal activities and habits, political and religious interests, and lifestyle
choices of individuals that are not freely accessible to the public. Because Section 12
contains no limitation on the quantity of traffic data the government can collect, state
intelligence agencies are free to accumulate and analyze as much data as they want,
anytime they want them.

Randomly considered, traffic data do not reveal much about a person’s relationships,
habits, interests or lifestyle expressed online or through phone. After all, they are mere
bits of electronic footprint tracking a person’s electronic communicative or expressive
activities. When compiled in massive amounts, however, traffic data, analyzed over
time, allows the state to create a virtual profile of the surveilled individuals, revealing
their close relationships, mental habits, political and religious interests, as well as
lifestyle choices – as detailed as if the government had access to the content of their
letters or conversations. Or put differently –
When [traffic] information x x x is combined, it can identify all of our surreptitious
connections with the world, providing powerful evidence of our activities and beliefs.
[L]aw enforcement can construct a “complete mosaic of a person's characteristics”
through this type of x x x surveillance. Under these circumstances, the information the
government accumulates  is more akin to content than mere cataloguing.[52] (Emphasis
supplied)
The profiling of individuals is not hampered merely because the bulk data relate to
telephone communication. As pointed out in a Report, dated 12 December 2013, by a
government panel of experts[53] which reviewed the U.S. government’s electronic
surveillance policy (Panel’s Report) –
[t]he record of every telephone call an individual makes or receives over the course of
several years can reveal an enormous amount about that individual’s private life. x x x.
[T]elephone calling data can reveal x x x an individual’s “familial, political, professional,
religious, and sexual associations.” It can reveal calls “to the psychiatrist, the plastic
surgeon, x x x the AIDS treatment center, the strip club, the criminal defense attorney,
the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay
bar, and on and on.”[54]
This virtual profiling is possible not only because of software[55] which sifts through
telephone and Internet data to locate common patterns but also because, for Internet
“Universal Resource Locators x x x, they are [both] addresses (e.g.,
www.amazon.com/kidneydisease) and [links] x x x allowing access to the website and
thus permit government to ascertain what the user has viewed.”[56] The identities of
users of mobile phone numbers can easily be found through Internet search or in public
and private mobile phone directories, calling cards, letterheads and similar documents.

Bulk Data Surveillance Rises to the

Level of a “Search and Seizure” Within
the Meaning of the Search and Seizure
Clause

There is no quarrel that not all state access to personal information amount to a
“search” within the contemplation of the Search and Seizure Clause. Government
collection of data readily available (or exposed) to the public, even when obtained using
devices facilitating access to the information, does not implicate constitutional concerns
of privacy infringement.[57] It is when government, to obtain private information,
intrudes into domains over which an individual holds legitimate privacy expectation that
a “search” takes place within the meaning of the Search and Seizure Clause.[58] To
determine whether the collection of bulk traffic data of telephone and online
communication amounts to a constitutional search, the relevant inquiry, therefore, is
whether individuals using such media hold legitimate expectation that the traffic data
they generate will remain private.

Unlike this Court, the U.S. Supreme Court had weighed such question and answered in
the negative. In Smith  v. Maryland,[59] promulgated in 1979,

that court was confronted with the issue whether the warrantless monitoring of
telephone numbers dialed from a private home and stored by the telephone company,
amounted to a search within the meaning of the Fourth Amendment. The U.S. High
Court’s analysis centered on the reasoning that a caller has no legitimate privacy
expectation over telephone numbers stored with telephone companies because he
“assumed the risk that the company would reveal to police the numbers he dialed.”[60]

Several reasons undercut not only the persuasive worth of Smith in this jurisdiction but
also the cogency of its holding. First, all three modern Philippine Constitutions, unlike
the U.S. Constitution, explicitly guarantee “privacy of communications and
correspondence.”[61] This is a constitutional recognition, no less, of the legitimacy of the
expectation of surveilled individuals that their communication and correspondence will
remain private and can be searched by the government only upon compliance with the
warrant requirement under the Search and Seizure Clause. Although such guarantee
readily protects the content of private communication and correspondence, the
guarantee also protects traffic data collected in bulk which enables the government to
construct profiles of individuals’ close social associations, personal activities and habits,
political and religious interests, and lifestyle choices, enabling intrusion into their lives
as extensively as if the government was physically searching their “houses, papers and
effects.”[62]

Second, at the time the U.S. Supreme Court decided Smith in 1979, there were no
cellular phones, no Internet and no emails as we know and use them today. Over the
last 30 years, technological innovations in mass media and electronic surveillance have
radically transformed the way people communicate with each other and government
surveils individuals. These radical changes undergirded the refusal of the District Court
of Columbia to follow Smith in its ruling promulgated last 16 December 2013, striking
down portions of the spying program of the U.S. National Security Agency (NSA).[63] The
District Court observed:
[T]he relationship between the police and the phone company in Smith is nothing
compared to the relationship that has apparently evolved over the last seven years
between the Government and telecom companies. x x x x In Smith, the Court considered
a one-time, targeted request for data regarding an individual suspect in a criminal
investigation, x x x which in no way resembles the daily, all-encompassing,
indiscriminate dump of phone metadata that the (NSA) now receives as part of its
Bulk Telephony Metadata Program. It's one thing to say that people expect phone
companies to occasionally provide information to law enforcement; it is quite another
to suggest that our citizens expect all phone companies to operate what is effectively
a joint intelligence-gathering operation with the Government. x x x.[64] (Emphasis
supplied)
Third, individuals using the telephone and Internet do not freely disclose private
information to the service providers and the latter do not store such information in trust
for the government. Telephone and Internet users divulge private information to service
providers as a matter of necessity to access the telephone and Internet services, and the
service providers store such information (within certain periods) also as a matter of
necessity to enable them to operate their businesses. In what can only be described as
an outright rejection of Smith’s analysis, the Panel’s Report, in arriving at a similar
conclusion, states:[65]
In modern society, individuals, for practical reasons, have to use banks, credit cards, e-
mail, telephones, the Internet, medical services, and the like. Their decision to reveal
otherwise private information to such third parties does not reflect a lack of concern for
the privacy of the information,  but a necessary accommodation to the realities of
modern life. What they want — and reasonably expect —  is both the ability to use such
services and the right to maintain their privacy when they do so.[66] (Emphasis supplied)
Clearly then, bulk data surveillance and collection is a “search and seizure” within the
meaning of the Search and Seizure Clause not only because it enables maximum
intrusion into the private lives of the surveilled individuals but also because such
individuals do not forfeit their privacy expectations over the traffic data they generate
by transacting with service providers. Bulk data and content-based surveillance and
collection are functionally identical in their access to personal and private information. It
follows that the distinction Section 12 of RA 10175 draws between content-based and
bulk traffic data surveillance and collection, requiring judicial warrant for the former and
a mere administrative “due cause” for the latter, is unconstitutional. As “searches and
seizures” within the contemplation of Search and Seizure Clause, bulk data and content-
based surveillance and collection are uniformly subject to the constitutional
requirement of a judicial warrant grounded on probable cause.

Section 12 of RA 10175
Impermissibly Narrows the
Right to Privacy of Communication
and Correspondence

The grant under Section 12 of authority to the government to undertake bulk data
surveillance and collection without benefit of a judicial warrant enables the government
to access private and personal details on the surveilled individuals’ close social
associations, personal activities and habits, political and religious interests, and lifestyle
choices. This impermissibly narrows the sphere of privacy afforded by the Privacy of
Communication Clause. It opens a backdoor for government to pry into their private
lives as if it obtained access to their phones, computers, letters, books, and other papers
and effects. Since Section 12 does not require a court warrant for government to
undertake such surveillance and data collection, law enforcement agents can access
these information anytime they want to, for whatever purpose they may deem as
amounting to “due cause.”

The erosion of the right to privacy of communication that Section 12 sanctions is

pernicious because the telephone and Internet are indispensable tools for
communication and research in this millennium. People use the telephone and go online
to perform tasks, run businesses, close transactions, read the news, search for
information, communicate with friends, relatives and business contacts, and in general
go about their daily lives in the most efficient and convenient manner. Section 12 forces
individuals to make the difficult choice of preserving their communicative privacy but
reverting to non-electronic media, on the one hand, or availing of electronic media
while surrendering their privacy, on the other hand. These choices are inconsistent with
the Constitution’s guarantee to privacy of communication.

Section 12 of RA 10175 not a “law”

Within the Contemplation of the
Exception Clause in Section 3(1),
Article III of the 1987 Constitution

Undoubtedly, the protection afforded by the Constitution under the Privacy of

Communication Clause is not absolute. It exempts from the guarantee intrusions “upon
lawful order of the court, or when public safety or order requires otherwise, as
prescribed by  law.” Does Section 12 of RA 10175 constitute a “law” within the
contemplation of the Privacy of Communication Clause?

When the members of the 1971 Constitutional Convention deliberated on Article III,
Section 4(1) of the 1973 Constitution, the counterpart provision of Article III, Section
3(1) of the 1987 Constitution, the phrase “public safety or order” was understood by the
convention members to encompass “the security of human lives, liberty and
property against the activities of invaders, insurrectionists and rebels.”[67] This narrow
understanding of the public safety exception to the guarantee of communicative privacy
is consistent with Congress’ own interpretation of the same exception as provided in
Article III, Section 1(5) of the 1935 Constitution. Thus, when Congress passed the Anti-
Wiretapping Act[68] (enacted in 1965), it exempted from the ban on wiretapping “cases
involving the crimes of treason, espionage, provoking war and disloyalty in case of war,
piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against national security” (Section 3).
In these specific and limited cases where wiretapping has been allowed, a court warrant
is required before the government can record the conversations of individuals.
Under RA 10175, the categories of crimes defined and penalized relate to (1) offenses
against the confidentiality, integrity and availability of computer data and systems
(Section 4[a]); (2) computer-related offenses (Section 4[b]); (3) content-related offenses
(Section 4[c]); and (4) other offenses (Section 5). None of these categories of crimes are
limited to public safety or public order interests (akin to the crimes exempted from the
coverage of the Anti-Wiretapping Law). They relate to crimes committed in the
cyberspace which have no stated public safety or even national security dimensions.
Such fact takes Section 12 outside of the ambit of the Privacy of Communication Clause.

In any event, even assuming that Section 12 of RA 10175 is such a “law,” such “law” can
never negate the constitutional requirement under the Search and Seizure Clause that
when the intrusion into the privacy of communication and correspondence rises to the
level of a search and seizure of personal effects, then a warrant issued by a judge
becomes mandatory for such search and seizure. Fully cognizant of this fact, Congress,
in enacting exceptions to the ban on wiretapping under the Anti-Wiretapping Act, made
sure that law enforcement authorities obtain a warrant from a court based on probable
cause to undertake wiretapping. Section 3 of the Anti-Wiretapping Act provides:
Nothing contained in this Act, however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the Court, to execute any of the
acts declared to be unlawful in the two preceding Sections in cases involving the crimes
of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by
the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing
espionage and other offenses against national security: Provided, That such written
order shall only be issued or granted upon written application and the examination
under oath or affirmation of the applicant and the witnesses he may produce and a
showing: (1) that there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being committed or is about to be
committed: Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, and inciting to sedition, such authority shall be granted only upon
prior proof that a rebellion or acts of sedition, as the case may be, have actually been or
are being committed; (2) that there are reasonable grounds to believe  that evidence
will be obtained essential to the conviction of any person for, or to the solution of, or to
the prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence. (Emphasis supplied)
Section 12 of RA 10175 More
Expansive than U.S. Federal Electronic
Surveillance Laws

Under U.S. federal law, authorities are required to obtain a court order to install “a pen
register or trap and trace device” to record in real time or decode electronic
communications.[69] Although initially referring to technology to record telephone
numbers only, the term “pen register or trap and trace device” was enlarged by the
Patriot Act to cover devices which record “dialing, routing, addressing, and signaling
information utilized in the processing and transmitting of wire or electronic
communications,” including Internet traffic data.[70] The court of competent jurisdiction
may issue ex parte the order for the installation of the device “if [it] finds that the State
law enforcement or investigative officer has certified to the court that the information
likely to be obtained by such installation and use is relevant to an ongoing criminal
investigation.”[71]

For electronic surveillance relating to foreign intelligence, U.S. federal law requires the
government to obtain ex parte orders from the Foreign Intelligence Surveillance Court
(FISC)[72] upon showing that “the target of surveillance was a foreign power or an agent
of a foreign power.”[73] Under an amendment introduced by the Patriot Act, the
government was further authorized to obtain an ex parte order from the FISC for the
release by third parties of “tangible things” such as books, papers, records, documents
and other items “upon showing that the tangible things sought are relevant to an
authorized investigation x x x to obtain foreign intelligence information not concerning a
United States person or to protect against international terrorism or clandestine
intelligence activities.”[74] The investigation is further subjected to administrative
oversight by the Attorney General whose prior authorization to undertake such
investigation is required.[75]

In contrast, Section 12 of RA 10175 authorizes law enforcement officials “to collect or

record by technical or electronic means traffic data in real-time” if, in their judgment,
such is for “due cause.”[76] Unlike in the Patriot Act, there is no need for a court order to
collect traffic data. RA 10175 does not provide a definition of “due cause” although the
OSG suggests that it is synonymous with “just reason or motive” or “adherence to a
lawful procedure.”[77] The presence of “due cause” is to be determined solely by law
enforcers.

In comparing the U.S. and Philippine law, what is immediately apparent is that the U.S.
federal law requires judicial oversight for bulk electronic data collection and analysis
while Philippine law leaves such process to the exclusive discretion of law enforcement
officials. The absence of judicial participation under Philippine law precludes
independent neutral

assessment by a court on the necessity of the surveillance and collection of data.

[78]
 Because the executive’s assessment of such necessity is unilateral, Philippine
intelligence officials can give the standard of “due cause” in Section 12 of RA 10175 as
broad or as narrow an interpretation as they want.

The world by now is aware of the fallout from the spying scandal in the United States
arising from the disclosure by one of its intelligence computer specialists that the U.S.
government embarked on bulk data mining, in real time or otherwise, of Internet and
telephone communication not only of its citizens but also of foreigners, including heads
of governments of 35 countries.[79] The District Court’s observation in Klayman on the
bulk data collection and mining undertaken by the NSA of telephone traffic data is
instructive:
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic
and high-tech collection and retention of personal data on virtually every single citizen
for purposes of querying and analyzing it without prior judicial approval. Surely, such a
program infringes on “that degree of privacy” that the Founders enshrined in the Fourth
Amendment. Indeed, I have little doubt that the author of our Constitution, James
Madison, who cautioned us to beware “the abridgment of freedom of the people by
gradual and silent encroachments by those in power,” would be aghast.[80]
Equally important was that court’s finding on the efficacy of the bulk surveillance
program of the U.S. government: “the Government does not cite a single instance in
which analysis of the NSA's bulk metadata collection actually stopped an imminent
attack, or otherwise aided the Government in achieving any objective that was time-
sensitive in nature.”[81]

To stem the ensuing backlash, legislative and executive leaders of the U.S. government
committed to re-writing current legislation to curb the power of its surveillance
agencies.[82] The pressure for reforms increased with the recent release of an
unprecedented statement by the eight largest Internet service providers in America
calling on the U.S. government to “limit surveillance to specific, known users for lawful
purposes, and x x x not undertake bulk data collection of Internet
communications.”[83] Along the same lines, the Panel’s Report recommended, among
others that, “the government should not be permitted to collect and store all mass,
undigested, non-public personal information about individuals to enable future queries
and data-mining for foreign intelligence purposes” [84] as such poses a threat to privacy
rights, individual liberty and public trust. The Panel’s Report elaborated:
Because international terrorists inevitably leave footprints when they recruit, train,
finance, and plan their operations, government acquisition and analysis of such personal
information might provide useful clues about their transactions, movements, behavior,
identities and plans. It might, in other words, help the government find the proverbial
needles in the haystack. But because such information overwhelmingly concerns the
behavior of ordinary, law-abiding individuals, there is a substantial risk of serious
invasions of privacy.

As a report of the National Academy of Sciences (NAS) has observed, the mass collection
of such personal information by the government would raise serious “concerns about
the misuse and abuse of data, about the accuracy of the data and the manner in which
the data are aggregated, and about the possibility that the government could, through
its collection and analysis of data, inappropriately influence individuals’ conduct.”

According to the NAS report, “data and communication streams” are ubiquitous:
[They] concern financial transactions, medical records, travel, communications, legal
proceedings, consumer preferences, Web searches, and, increasingly, behavior and
biological information. This is the essence of the information age — x x x everyone
leaves personal digital tracks in these systems whenever he or she makes a purchase,
takes a trip, uses a bank account, makes a phone call, walks past a security camera,
obtains a prescription, sends or receives a package, files income tax forms, applies for a
loan, e-mails a friend, sends a fax, rents a video, or engages in just about any other
activity x x x x Gathering and analyzing [such data] can play major roles in the
prevention, detection, and mitigation of terrorist attacks x x x x [But even] under the
pressures of threats as serious as terrorism, the privacy rights and civil liberties that are
cherished core values of our nation must not be destroyed x x x x One x x x concern is
that law-abiding citizens who come to believe that their behavior is watched too closely
by government agencies x x x may be unduly inhibited from participating in the
democratic process, may be inhibited from contributing fully to the social and cultural
life of their communities, and may even alter their purely private and perfectly legal
behavior for fear that discovery of intimate details of their lives will be revealed and
used against them in some manner.[85] (Emphasis supplied)
In lieu of data collection in bulk and data mining, the Panel’s Report recommended that
such data be held by “private providers or by a private third party,”[86] accessible by
American intelligence officials only by order of the FISC, upon showing that the
requested information is “relevant to an authorized investigation intended to protect
‘against international terrorism or clandestine intelligence activities,’”[87] a more
stringent standard than what is required under current federal law.

Finding merit in the core of the Panel’s Report’s proposal, President Obama ordered a
two-step “transition away from the existing program” of telephone data collection in
bulk and analysis, first, by increasing the threshold for querying the data and requiring
judicial oversight to do so (save in emergency cases), and second, by relinquishing
government’s possession of the bulk data:
[I]’ve ordered that the transition away from the existing program will proceed in two
steps.

Effective immediately, we will only pursue phone calls that are two steps removed from
a number associated with a terrorist organization, instead of the current three, and I
have directed the attorney general to work with the Foreign Intelligence Surveillance
Court so that during this transition period, the database can be queried only after a
judicial finding or in the case of a true emergency.

Next, step two: I have instructed the intelligence community and the attorney general to
use this transition period to develop options for a new approach that can match the
capabilities and fill the gaps that the Section 215 program was designed to
address, without the government holding this metadata itself. x x x.[88] (Emphasis
supplied)
The U.S. spying fiasco offers a cautionary tale on the real danger to privacy of
communication caused by the grant of broad powers to the state to place anyone under
electronic surveillance without or with minimal judicial oversight. If judicial intervention
under U.S. law for real time surveillance of electronic communication did not rein in U.S.
spies, the total absence of such intervention under Section 12 of RA 10175 is a blanket
legislative authorization for data surveillance and collection in bulk to take place in this
country.

Section 12 Tilts the Balance in Favor

of Broad State Surveillance Over
Privacy of Communications Data

As large parts of the world become increasingly connected, with communications

carried on wired or wirelessly and stored electronically, the need to balance the state’s
national security and public safety interest, on the one hand, with the protection of the
privacy of communication, on the other hand, has never been more acute. Allowing the
state to undertake extrajudicial, unilateral surveillance and collection of electronic data
in bulk which, in the aggregate, is just as revealing of a person’s mind as the content of
his communication, impermissibly tilts the balance in favor of state surveillance at the
expense of communicative and expressive privacy. More than an imbalance in the
treatment of equally important societal values, however, such government policy gives
rise to fundamental questions on the place of human dignity in civilized society. This
concern was succinctly articulated by writers from all over the world protesting the
policy of mass surveillance and collection of data in bulk:
With a few clicks of the mouse, the state can access your mobile device, your email,
your social networking and Internet searches. It can follow your political leanings and
activities and, in partnership with Internet corporations, it collects and stores your data.

The basic pillar of democracy is the inviolable integrity of the individual. x x x [A]ll
humans have a right to remain unobserved and unmolested. x x x.

A person under surveillance is no longer free; a society under surveillance is no longer a

democracy. [O]ur democratic rights must apply in virtual as in real space.[89]
The Government must maintain fidelity to the 1987 Constitution’s guarantee against
warrantless searches and seizures, as well as the guarantee of privacy of communication
and correspondence. Thus, the Government, consistent with its national security needs,
may enact legislation allowing surveillance and data collection in bulk only if based on
individualized suspicion and subject to meaningful judicial oversight.

Section 19 of RA 10175 Violative of the

Free Speech, Free Press, Privacy of Communication
and Search and Seizure Clauses

The OSG concedes the unconstitutionality of Section 19 which authorizes the

Department of Justice (DOJ) to “issue an order to restrict or block access” to computer
data, that is, “any representation of facts, information, or concepts in a form suitable for
processing in a computer system,”[90] whenever the DOJ finds such data prima
facie violative of RA 10175. The OSG's stance on this “take down” clause is unavoidable.
Section 19 allows the government to search without warrant the content of private
electronic data and administratively censor all categories of speech. Although
censorship or prior restraint is permitted on speech which is pornographic, commercially
misleading or dangerous to national security,[91] only pornographic speech is covered by
RA 10175 (under Section 4(c)(2) on online child pornography). Moreover, a court order
is required to censor or effect prior restraint on protected speech.[92] By allowing the
government to electronically search without warrant and administratively censor all
categories of speech, specifically speech which is non-pornographic, not commercially
misleading and not a danger to national security, which cannot be subjected to
censorship or prior restraint, Section 19 is unquestionably repugnant to the guarantees
of free speech, free expression and free press and the rights to privacy of
communication and against unreasonable searches and seizures. Indeed, as a system
of prior restraint on all categories of speech, Section 19 is glaringly unconstitutional.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL Article 354 of the Revised Penal

Code, insofar as it applies to public officers and public figures, and the following
provisions of Republic Act No. 10175, namely: Section 4(c)(1), Section 4(c)(3), Section 7,
Section 12, and Section 19, for being violative of Section 2, Section 3(1) Section 4, and
Section 21, Article III of the Constitution.

[1]
 Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, THE WASHINGTON
POST, 17 January 2014, http://www.washingtonpost.com/politics/full-text-of-president-
obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-
4a4bf7bcbd84_story.html.

[2]
 On 1 January 1932.

[3]
 Article III, Section 1(8) (“No law shall be passed abridging the freedom of speech, or of
the press, or of the right of the people peaceably to assemble and petition the
Government for redress of grievances.”). This is substantially reiterated in Article III,
Section 9 of the 1973 Constitution and Article III, Section 4 of the 1987 Constitution.

[4]
 Act No. 277.

[5]
 376 U.S. 254 (1964) (involving a libel complaint for damages filed by the Montgomery,
Alabama police commissioner against the New York Times Company and other
individuals for a paid political advertisement published in the New York Times, criticizing
police conduct during a series of protests staged by civil rights activists at the height of
the campaign for racial equality in the American South in the 1960s).

[6]
 Also described as “an escalati[on] of the plaintiff’s burden of proof to an almost
impossible level.” Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985)
(White, J., concurring).

[7]
 Supra note 5 at 279-280.

[8]
 Supra note 5 at 269 quoting Roth v. United States, 354 U.S. 476, 484 (1957).

[9]
 Supra note 5 at 271-272 citing N. A. A. C. P. v. Button, 371 U.S. 415, 433 (1963).

[10]
 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

[11]
 Lopez v. Court of Appeals, 145 Phil. 219 (1970).

[12]
 Borjal v. CA, 361 Phil. 1 (1999); Baguio Midland Courier v. CA, 486 Phil. 223
(2004); Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, 15 May 2009, 588
SCRA 1.

[13]
 Flor v. People, 494 Phil. 439 (2005); Guingguing v. CA, 508 Phil. 193 (2005); Vasquez
v. CA, 373 Phil. 238 (1999).

[14]
 Babst v. National Intelligence Board, 217 Phil. 302, 331-332 (1984) (internal citations
omitted).

[15]
 Justice Enrique Fernando consistently espoused the theory that U.S. v. Bustos, 37
Phil. 731 (1918), preceded New York Times by over three decades (Mercado v. CFI of
Rizal, 201 Phil. 565 [1982]; Philippine Commercial and Industrial Bank v. Philnabank
Employees Association, 192 Phil. 581 [1981]). The OSG does one better than Justice
Fernando by claiming that a much earlier case, U.S. v. Sedano, 14 Phil. 338 (1909),
presaged New York Times (OSG Memorandum, pp. 62-63).
[16]
 Art. 362. Libelous remarks. — Libelous remarks or comments connected with the
matter privileged under the provisions of Article 354, if made with malice, shall not
exempt the author thereof nor the editor or managing editor of a newspaper from
criminal liability. (Emphasis supplied)

[17]
 Art. 361. Proof of the truth. — x x x x

Proof of the truth of an imputation of an act or omission not constituting a crime shall
not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall
be acquitted. (Emphasis supplied)

[18]
 OSG Memorandum, pp. 56-66, citing Snyder v. Ware, 397 U.S. 589 (1970).

[19]
 Decision, p. 15.

[20]
 Marbury v. Madison, 5 U.S. 137, 180 (1803).

[21]
 Id. at 177.

[22]
 The obligatory nature of judicial power is textualized under the 1987 Constitution.
Section 1, Article VIII provides: “Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.” (Emphasis supplied)

[23]
 Memorandum (G.R. No. 203378), p. 19.

[24]
 Memorandum (G.R. No. 203359), p. 58.

[25]
 OSG Memorandum, p. 43.

[26]
 Id. at 44-45.

[27]
 Decision, p. 11.

[28]
 Osmeña v. COMELEC, 351 Phil. 692 (1998).

[29]
 Id. at 44.

[30]
 Section 3(c).

[31]
 For the same reason, Section 4(c)(1) is unconstitutionally overbroad, sweeping in
“too much speech” including the protected indecent but non-obscene type. G.
GUNTHER AND K. SULLIVAN, CONSTITUTIONAL LAW 1287 (14th ed.).
[32]
 Miller v. California, 413 U.S. 15 (1973), cited with approval in Soriano v. Laguardia,
G.R. No. 164785, 15 March 2010, 615 SCRA 254, (Carpio, J., dissenting); Fernando v.
Court of Appeals, 539 Phil. 407 (2006).

[33]
 Fernando v. Court of Appeals, supra note 32.

[34]
 G.R. No. 164785, 29 April 2009, 587 SCRA 79.

[35]
 539 Phil. 407 (2006).

[36]
 258-A Phil. 134 (1989).

[37]
 G.R. No. 164785, 15 March 2010, 615 SCRA 254, 270-271 (Resolution).

[38]
 Decision, p. 13.

[39]
 The protected nature of truthful and non-misleading commercial speech was
adverted to in Philippine jurisprudence in Pharmaceutical and Health Care Association
of the Philippines v. Secretary of Health Duque III, 562 Phil. 386, 448-451 (Puno, C.J.,
concurring).

[40]
 OSG Consolidated Comment, pp. 109-110, citing People v. Sandoval, G.R. Nos. 95353-
54, 7 March 1996, 254 SCRA 436.

[41]
 Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

[42]
 Prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

[43]
 OSG Consolidated Comment, p. 77.

[44]
 Malaya (http://www.malaya.com.ph/)
and Abante (http://www.abante.com.ph); Manila Standard
Today (manilastandardtoday.com); and The News Today (www.thenewstoday.info),
respectively.

[45]
 Petition (G.R. No. 203378), p. 37.

[46]
 “Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person: (a) To
hire, employ, use, persuade, induce or coerce a child to perform in the creation or
production of any form of child pornography[.]”

[47]
 Speiser v. Randall, 357 U.S. 513, 526 (1958).

[48]
 Defined in the law (Section 3[g]) as “refer[ing] to any device or group of
interconnected or related devices, one or more of which, pursuant to a program,
performs automated processing of data. It covers any type of device with data
processing capabilities including, but not limited to, computers and mobile phones. The
device consisting of hardware and software may include input, output and storage
components which may stand alone or be connected in a network or other similar
devices. It also includes computer data storage devices or media.”

[49]
 Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA 189.

[50]
 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505
Phil. 298 (2005).

[51]
 People v. Canton, 442 Phil. 743 (2002); People v. Johnson, 401 Phil. 734 (2000). See
also United States v. Arnold, 523 F.3d 941 (9th Cir. Cal., 2008), certiorari denied by the
U.S. Supreme Court in Arnold v. United States, 129 S. Ct. 1312 (2009) (involving a
warrantless search of a laptop of a passenger who had arrived from overseas travel).

[52]
 Christopher Slobogin, The Search and Seizure of Computers and Electronic Evidence:
Transaction Surveillance by the Government, 75 Miss. L.J. 139, 178. (Hereinafter
Slobogin, Transaction Surveillance).

[53]
 Composed of Richard A. Clarke, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein,
and Peter Swire.

[54]
 Report and Recommendations of The President’s Review Group on Intelligence and
Communications Technologies, 12 December 2013, pp. 116-117 (internal citations
omitted), http://www.whitehouse.gov/sites/default/files/docs/2013-12-
12_rg_final_report.pdf (last visited on 29 December 2013).

[55]
 Commercially available programs are collectively referred to as “snoopware” which
“allows its buyer to track the target well beyond a single website; it accumulates the
addresses of all the Internet locations the target visits, as well as the recipient of the
target’s emails.” Slobogin, Transaction Surveillance at 146. The government surveillance
agencies tend to develop their own version of such programs.

[56]
 Id. at 153.

[57]
 See, e.g., Florida v. Riley, 488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207
(1986) (uniformly holding that aerial surveillance of private homes and surrounding
areas is not a “search” under the Fourth Amendment).

[58]
 This standard, crafted by Mr. Justice Harlan in his separate opinion in Katz v. US, 389
U.S. 347 (1967), has been adopted by this Court to settle claims of unreasonable search
(see, e.g., Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011, 659 SCRA
189; People v. Johnson, supra note 51).

[59]
 442 U.S. 735 (1979). The earlier ruling in United States v. Miller, 425 U.S. 435 (1976),
found no legitimate privacy expectation over the contents of checks and bank deposit
slips. Unlike in the United States, however, Philippine law treats bank deposits “as of an
absolutely confidential nature” (For deposits in local currency, see Section 2 of Republic
Act No. 1405, as amended. For deposits in foreign currency, see Section 8 of Republic
Act No. 6426, as amended).
[60]
 Id. at 744.

[61]
 Constitution (1935), Article III, Section 1(5) (“The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court or when public
safety and order require otherwise.”); Constitution (1973), Article III, Section 4(1) (“The
privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety and order require otherwise.”); Constitution
(1987), Article III, Section 3(1) (“The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law.”). The inclusion of the phrase “as prescribed
by law” in the 1987 Constitution indicates heightened protection to the right, removing
the executive exemption to the guarantee (on the ground of public safety or order).

[62]
 The protection afforded by Section 3(1), Article III of the Constitution to the privacy of
communication and correspondence is supplemented by the Rule of the Writ of Habeas
Data, effective 2 February 2008, giving judicial relief to “any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the x x x
correspondence of the aggrieved party” (Section 1). If the writ lies, the court hearing the
application for the writ “shall enjoin the act complained of, or order the deletion,
destruction, or rectification of the erroneous data or information x x x.” (Section 16).

[63]
 Klayman v. Obama, 2013 U.S. Dist. LEXIS 176928.

[64]
 Id. at 84-85 (internal citations omitted).

[65]
 Panel’s Report at 744.

[66]
 Id. at 111-112.

[67]
 I J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 135, citing 1971 Constitutional Convention, Session of 25 November
1972.

[68]
 Republic Act No. 4200.

[69]
 Under the Electronic Communications Privacy Act, codified in 18 USC § 3121(a) which
provides: “In General.— Except as provided in this section, no person may install or use
a pen register or a trap and trace device without first obtaining a court order under
section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).” (Emphasis supplied)

[70]
 18 USC § 3121 (c) which provides: “Limitation.— A government agency authorized to
install and use a pen register or trap and trace device under this chapter or under State
law shall use technology reasonably available to it that restricts the recording or
decoding of electronic or other impulses to the dialing, routing, addressing, and
signaling information utilized in the processing and transmitting of wire or electronic
communications so as not to include the contents of any wire or electronic
communications.” (Emphasis supplied)

[71]
 18 USC § 3123(a) (2) which provides: “State investigative or law enforcement officer.
— Upon an application made under section 3122 (a)(2), the court shall enter an ex
parte order authorizing the installation and use of a pen register or trap and trace
device within the jurisdiction of the court, if the court finds that the State law
enforcement or investigative officer has certified to the court that the information likely
to be obtained by such installation and use is relevant to an ongoing criminal
investigation.” (Emphasis supplied)

[72]
 Composed of eleven district court judges appointed by the Chief Justice of the U.S.
Supreme Court.

[73]
 Foreign Intelligence Surveillance Act, codified at 50 USC § 1804(a)(3), 1805(a)(2).

[74]
 50 USC § 1861(b)(2)(A).

[75]
 50 USC § 1861(a)(2)(A).

[76]
 Under the first paragraph of Section 12 which provides: “Law enforcement
authorities, with due cause, shall be authorized to collect or record by technical or
electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.” (Emphasis supplied)

[77]
 Decision, p. 33.

[78]
 While the U.S. law has been criticized as turning courts into “rubber stamps” which
are obliged to issue the order for the installation of recording devices once the applicant
law enforcement officer certifies that the information to be recorded is relevant to an
ongoing criminal investigation (see Slobogin, Transaction Investigation at 154-155), the
objection relates to the degree of judicial participation, not to the law’s structure.

[79]
 Costas Pitas, Report: US Monitored the Phone Calls of 35 World Leaders, REUTERS
http://worldnews.nbcnews.com/_news/2013/10/24/21124561-report-us-monitored-
the-phone-calls-of-35-world-leaders (last visited on 16 December 2013).

[80]
 Supra note 63 at 114-115 (internal citations omitted).

[81]
 Supra note 63 at 109 (emphasis supplied).

[82]
 Dan Roberts, Patriot Act Author Prepares Bill to Put NSA Bulk Collection ‘Out of
Business,’ THE GUARDIAN, 10 October 2013
http://www.theguardian.com/world/2013/oct/10/nsa-surveillance-patriot-act-author-
bill; Andrew Raferty, Obama: NSA Reforms Will Give Americans 'More Confidence' in
Surveillance Programs, NBC NEWS,
http://nbcpolitics.nbcnews.com/_news/2013/12/05/21776882-obama-nsa-reforms-will-
give-americans-more-confidence-in-surveillance-programs (last visited on 16 December
2013).
[83]
 “Global Government Surveillance Reform,”
http://reformgovernmentsurveillance.com/ (last visited on 16 December 2013).

[84]
 Panel’s Report at 27.

[85]
 Id. at 109-111 (internal citations omitted).

[86]
 Id. at 25.

[87]
 Id. at 26.

[88]
 Supra note 1.

[89]
 World Writers Demand UN Charter to Curb State Surveillance, AGENCE FRANCE-
PRESSE, 10 December 2013,
http://www.globalpost.com/dispatch/news/afp/131210/world-writers-demand-un-
charter-curb-state-surveillance.

[90]
 Section 3(e), RA 10175.

[91]
 Chavez v. Gonzales, 569 Phil. 155, 237 (2008), Carpio, J, concurring.

[92]
 Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, 26 July 1996, 259 SCRA 529,
575-578 (1996) (Mendoza, J., Separate Opinion)

SEPARATE CONCURRING OPINION

BRION, J.:

A. Concurrences & Dissents

Technology and its continued rapid development in the 21st century have been pushing
outward the boundaries of the law, compelling new responses and the redefinition of
fundamental rights from their original formulation; enlarging the need for, and the
means of, governmental regulation; and more importantly, sharpening the collision
between the individual’s exercise of fundamental rights and governmental need for
intervention.

In this kind of collision, the Court – as constitutionally designed – finds itself in the
middle, balancing its duty to protect individuals’ exercise of fundamental rights, with
the State’s intervention (through regulation and implementation) in the performance of
its duty to protect society. It is from this vantage point that the Court, through
the ponencia, closely examined the Cybercrime prevention Act (Cybercrime Law) and
the validity of the various provisions the petitioners challenged.

I write this Separate Concurring Opinion to generally support the  ponencia, although
my vote may be qualified in some provisions or in dissent with respect to others. In line
with the Court’s “per provision” approach and for ease of reference, I have tabulated
my votes and have attached the tabulation and explanation as Annex “A” of this
Separate Opinion.

This Opinion likewise fully explains my vote with a full discussion of my own reasons and
qualifications in the areas where I feel a full discussion is called for. I am taking this
approach in Section 12 of the Cybercrime Law in my vote for its unconstitutionality. My
qualifications come, among others, in terms of my alternative view that would balance
cybercrime law enforcement with the protection of our citizenry’s right to privacy.

I concur with the ponencia’s finding that cyber-libel as defined in Section 4(c)(4) of the

Cybercrime Law does not offend the Constitution. I do not agree, however, with
the ponencia’s ultimate conclusion that the validity is “only with respect to the original
author of the post” and that cyber-libel is unconstitutional “with respect to others who
simply receive the post and react to it.”

I believe that the constitutional status of cyber-libel hinges, not on Section 4(c)(4), but
on the provisions that add to and qualify libel in its application to Internet
communications. For example, as the ponencia does, I find that Section 5[1] of the
Cybercrime Law (which penalizes aiding, abetting or attempting to commit a
cybercrime) is unconstitutional for the reasons fully explained below, and should not
apply to cyber-libel.

I likewise agree with Chief Justice Sereno’s point on the unconstitutionality of

applying Section 6 of the Cybercrime Law (which penalizes crimes committed through
information communications technology) and impose on libel a penalty one degree
higher.

Further, I join Justice Carpio’s call to declare Article 354 of the Revised Penal
Code unconstitutional when applied to libellous statements committed against public
officers and figures, and to nullify the application of Section 7 of the Cybercrime Law to
cyber-libel.

On the other content-related offenses in the Cybercrime Law, I concur with

the ponencia in upholding the constitutionality of Section 4(c)(1) on cybersex and
Section 4(c)(2) on child pornography committed through computer systems, and in
striking down as unconstitutional Section 4(c)(3) for violating the freedom of speech.

I also agree that Section 5[2] of the Cybercrime Law, in so far as it punishes aiding,
abetting or attempting to commit online commercial solicitation, cyber-libel and online
child pornography, violates the Constitution.

Lastly, I partially support the ponencia’s position that Section 19[3] of the Cybercrime

Law (which empowers the Secretary of the Department of Justice to restrict or block
access to computer data found to be in violation of its provisions) is unconstitutional for
violating the right to freedom of expression.

B. My Positions on Cyber-libel

B.1. The Core Meaning and Constitutionality of Section 4(c)(4)

Based on a facial examination of Section 4(c)(4) of the Cybercrime Law, I find no reason
to declare cyber-libel or the application of Section 355 of the Revised Penal Code (that
penalizes libel made in print and other forms of media, to Internet communications)
unconstitutional.

Laws penalizing libel normally pit two competing values against each other – the
fundamental right to freedom of speech on one hand, and the state interest’s to protect
persons against the harmful conduct of others. The latter conduct pertains to scurrilous
speech that damages the reputation of the person it addresses. Jurisprudence has long
settled this apparent conflict by excluding libelous speech outside the ambit of the
constitutional protection.[4] Thus, the question of whether a libelous speech may be
penalized by law – criminally or civilly – has already been answered by jurisprudence in
the affirmative.

Article 355 of the Revised Penal Code penalizes “libel[5] committed by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.” Section 4(c)(4) of the Cybercrime
Law merely extends the application of Article 355 to “communications committed
through a computer system, or any other similar means which may be devised in the
future.” It does not, by itself, redefine libel or create a new crime – it merely adds a
medium through which libel may be committed and penalized. Parenthetically, this
medium – under the statutory construction principle of ejusdem generis – could already
be included under Article 355 through the phrase “any similar means.”

Thus, I fully support the constitutionality of Section 4(c)(4) as it stands by itself; its
intended effect is merely to erase any doubt that libel may be committed through
Internet communications.[6] However, my support stops there in light of the
qualifications under the law’s succeeding provisions.

B.2. Sections 5, 6 & 7 of the Cybercrime Law

In the process of declaring internet defamatory statements within the reach of our libel
law, the Cybercrime Law also makes the consequences of cyber-libel far graver than
libelous speech in the real world. These consequences result from the application of
other provisions in the Cybercrime Law that Congress, in the exercise of its policy-
making power, chose to impose upon cybercrimes.

Thus, the law, through Section 5, opts to penalize the acts of aiding, abetting, and
attempting to commit a cybercrime; increases the penalty for crimes committed by,
through and with the use of information and communications technologies in Section 6;
and clarifies that a prosecution under the Cybercrime Law does not ipso facto bar a
prosecution under the Revised Penal Code and other special laws in Section 7.

In my view, the application of these provisions to cyber-libel unduly increases the

prohibitive effect of libel law on online speech, and can have the effect of imposing self-
censorship in the Internet and of curtailing an otherwise robust avenue for debate and
discussion on public issues. In other words, Section 5, 6 and 7 should not apply to cyber-
libel, as they open the door to application and overreach into matters other than
libelous and can thus prevent protected speech from being uttered.

Neither do I believe that there is sufficient distinction between libelous speech

committed online and speech uttered in the real, physical world to warrant increasing
the prohibitive impact of penal law in cyberspace communications.

The rationale for penalizing defamatory statements is the same regardless of the
medium used to communicate it. It springs from the state’s interest and duty to protect
a person’s enjoyment of his private reputation.[7] The law recognizes the value of private
reputation and imposes upon him who attacks it – by slanderous words or libelous
publications – the liability to fully compensate for the damages suffered by the wronged
party.[8]

I submit that this rationale did not change when libel was made to apply to Internet
communications. Thus, cyber-libel should be considered as the State’s attempt to
broaden the protection for a person’s private reputation, and its recognition that a
reputation can be slandered through the Internet in the same way that it can be
damaged in the real world.[9]

A key characteristic of online speech is its potential to reach a wider number of people
than speech uttered in the real world. The Internet empowers persons, both public and
private, to reach a wider audience – a phenomenon some legal scholars pertain to as
“cyber-reach.”[10] Cyber-reach increases the number of people who would have
knowledge of a defamatory statement – a post published by a person living in the
Philippines, for instance, can reach millions of people living in the United States, and
vice versa. It could thus be argued that an increase in the audience of a libelous
statement made online justifies the inhibitive effect of Section 5, 6, and 7 on online
speech.

I find this proposition to be flawed. Online speech has varying characteristics, depending
on the platform of communications used in the Internet. It does not necessarily mean,
for instance, that a libelous speech has reached the public or a wider audience just
because it was communicated through the Internet. A libelous statement could have
been published through an e-mail, or through a private online group, or through a public
website – each with varying degrees in the number of people reached.

I also find it notable that the publicity element of libel in the Revised Penal Code does
not take into consideration the amount of audience reached by the defamatory
statement. For libel prosecution purposes, a defamatory statement is considered
published when a third person, other than the speaker or the person defamed, is
informed of it.[11] Libelous speech may be penalized when, for instance, it reaches a third
person by mail,[12] or through a television program,[13] or through a newspaper article
published nationwide.[14] All these defamatory imputations are punishable with the
same penalty of prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos or both.[15]

Penalizing libelous speech committed through the Internet with graver penalties and
repercussions because it allegedly reaches a wider audience creates an unreasonable
classification between communications made through the Internet and in the real,
physical world, to the detriment of online speech. I find no basis to treat online speech
and speech in the real world differently on account of the former’s cyber-reach because
Article 355 of the Revised Penal Code does not treat libel committed through various
forms of media differently on account of the varying numbers of people they reach.

In other words, since Article 355 of the Revised Penal Code does not distinguish among
the means of communications by which libel is published, the Cybercrime Law, which
merely adds a medium of communications by which libel may be committed, should
also not distinguish and command a different treatment than libel in the real world.

Notably, the enumeration of media in Article 355 of the Revised Penal Code have for
their common characteristic, not the audience a libelous statement reaches, but their
permanent nature as a means of publication.[16] Thus, cyber-libel’s addition of
communications through the Internet in the enumeration of media by which libel may
be committed is a recognition that it shares this common characteristic of the media
enumerated in Article 355 of the RPC, and that its nature as a permanent means of
publication injures private reputation in the same manner as the enumeration in Article
355 does.

Neither should the ease of publishing a libelous material in the Internet be a

consideration in increasing the penalty for cyber-libel. The ease by which a libelous
material may be published in the Internet, to me, is counterbalanced by the ease
through which a defamed person may defend his reputation in the various platforms
provided by the Internet - a means not normally given in other forms of media.

Thus, I agree with the ponencia that Section 5[17] of the Cybercrime Law, which

penalizes aiding, abetting, or attempting to commit any of the cybercrimes enumerated
therein, is unconstitutional in so far as it applies to the crime of cyber-libel. As
the ponente does, I believe that the provision, when applied to cyber-libel, is vague and
can have a chilling effect on otherwise legitimately free speech in cyberspace.

I further agree with the Chief Justice’s argument that it would be constitutionally
improper to apply the higher penalty that Section 6 imposes to libel.

Section 6[18] qualifies the crimes under the Revised Penal Code and special laws when
committed by, through and with the use of information and communications
technologies, and considers ICT use as an aggravating circumstance that raises the
appropriate penalties one degree higher. As Chief Justice Sereno points out, Section 6
not only considers ICT use to be a qualifying aggravating circumstance, but also has the
following effects: first, it increases the accessory penalties of libel; second, it disqualifies
the offender from availing of the privilege of probation; third, it increases the
prescriptive period for the crime of libel from one year to fifteen years, and the
prescriptive period for its penalty from ten years to fifteen years; and fourth, its impact
cannot be offset by mitigating circumstances.

These effects, taken together, unduly burden the freedom of speech because the
inhibiting effect of the crime of libel is magnified beyond what is necessary to prevent its
commission.
I also agree with Justice Carpio that the application of Section 7 to cyberlibel should be
declared unconstitutional. By adopting the definition of libel in the Revised Penal Code,
Section 4(c)(4)’s definition of cyberlibel penalizes the same crime, except that it is
committed through another medium enumerated in Article 355. Thus, Section 7 exposes
a person accused of uttering a defamatory statement to multiple prosecutions under
the Cybercrime Law and the Revised Penal Code for the same utterance. This creates a
significant chill on online speech, because the gravity of the penalties involved could
possibly compel Internet users towards self-censorship, and deter otherwise lawful
speech.

B.3. Article 354 of the Revised Penal Code

Lastly, I join in Justice Carpio’s call for the Court to declare Article 354 of the Revised
Penal Code as unconstitutional in so far as it applies to public officers and figures.

The petitions against the Cybercrime Law provide us with the opportunity to clarify,
once and for all, the prevailing doctrine on libel committed against public officers and
figures. The possibility of applying the presumed malice rule against this kind of libel
hangs like a Damocles sword against the actual malice rule that jurisprudence
established for the prosecution of libel committed against public officers and figures.

The presumed malice rule embodied in Article 354[19] of the Revised Penal Code provides
a presumption of malice in every defamatory imputation, except under certain
instances. Under this rule, the defamatory statement would still be considered as
malicious even if it were true, unless the accused proves that it was made with good and
justifiable intentions.

Recognizing the importance of freedom of speech in a democratic republic, our

jurisprudence has carved out another exception to Article 354 of the Revised Penal
Code. Through cases such as Guingguing v. Court of Appeals[20] and Borjal v. Court of
Appeals,[21] the Court has applied the actual malice rule in libel committed against public
officers and figures. This means that malice in fact is necessary for libel committed
against public officers and figures to prosper, i.e., it must be proven that the offender
made the defamatory statement with the knowledge that it is false or with reckless
disregard of whether it is false or not. As the Court held in Guinguing, adopting the
words in New York Times v. Sullivan:[22]: “[w]e have adopted the principle that debate on
public issues should be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on government and public
officials.”

I agree with Justice Carpio’s point regarding the necessity of a concrete declaration from
the Court regarding Article 354’s unconstitutional application to libelous speech against
public officers and officials. To neglect our duty to clarify what the law would amount to
and leave a gap in the implementation of our laws on libel, in the words of Justice
Carpio, would “leave[s] fundamental rights of citizens to freedom of expression to the
mercy of the Executive’s prosecutorial arm whose decision to press charges depends on
its own interpretation of the penal provision’s adherence to the Bill of Rights.”
This need for a clear signal from the Court has become even more pronounced given the
current nature of the Internet – now a vibrant avenue for dialogue and discussion on
matters involving governance and other public issues, with the capacity to allow
ordinary citizens to voice out their concerns to both the government and to the public in
general.

B.4. Summation of Constitutionality of Section 4(c)(4)

With the four provisions – i.e., Section 5, Section 6 and Section 7 of the Cybercrime

Law and Article 354 of the Revised Penal Code, removed from cyber-libel, Section 4(c)
(4) would present a proper balance between encouraging freedom of expression and
preventing the damage to the reputation of members of society. Conversely, the
presence of either one of these three provisions could tilt this delicate balance against
freedom of expression, and unduly burden the exercise of our fundamental right.
Thus, hand in hand with the recognition of the constitutionality of Section 4(c)(4) of
the Cybercrime Law under a facial challenge, the four mentioned provisions should
likewise be struck down as unconstitutional.

C. My Positions on Section 12 of the Cybercrime Law

In agreeing with the ponencia’s conclusion regarding the unconstitutionality of Section

12, I begin by emphasizing the point that no all-encompassing constitutional right to
privacy exists in traffic data. I stress the need to be sensitive and discerning in
appreciating traffic data as we cannot gloss over the distinctions between content data
and traffic data, if only because of the importance of these distinctions for law
enforcement purposes.

The right to privacy over the content of internet communications is a given, as

recognized in many jurisdictions.[23] Traffic data should likewise be recognized for what
they are – information necessary for computer and communication use and, in this
sense, are practically open and freely-disclosed information that law enforcers may
examine.

But beyond all these are information generated from raw traffic data on people’s
activities in the Internet, that are collected through real-time extended surveillance and
which may be as private and confidential as content data. To my mind, the grant to law
enforcement agents of the authority to access these data require a very close and
discerning examination to determine the grant’s constitutionality.

I justify my position on the unconstitutionality of Section 12 as it patently lacks proper

standards guaranteeing the protection of data that should be constitutionally-
protected. In more concrete terms, Section 12 should not be allowed – based solely on
law enforcement agents’ finding of ‘due cause’ – to serve as authority for the
warrantless real-time collection and recording of traffic data.

Lastly, I clarify that the nullification of Section 12 does not absolutely bar the real-time
collection of traffic data, as such collection can be undertaken upon proper application
for a judicial warrant. Neither should my recommended approach in finding the
unconstitutionality of Section 12 prevent Congress, by subsequent legislation, from
authorizing the conduct of warrantless real-time collection of traffic data provided that
proper constitutional safeguards are in place for the protection of affected
constitutional rights.

C.1 The constitutional right to privacy in Internet communications data

The right to privacy essentially means the right to be let alone and to be free from
unwarranted government intrusion.[24] To determine whether a violation of this right
exists, a first requirement is to ascertain the existence of a reasonable expectation of
privacy that the government violates. The reasonable expectation of privacy can be
made through a two-pronged test that asks: (1) whether, by his conduct, the individual
has exhibited an expectation of privacy; and (2) whether this expectation is one that
society recognizes as reasonable. Customs, community norms, and practices may,
therefore, limit or extend an individual’s "reasonable expectation of privacy."[25] The
awareness of the need for privacy or confidentiality is the critical point that should
dictate whether privacy rights exist.

The finding that privacy rights exist, however, is not a recognition that the data shall be
considered absolutely private;[26] the recognition must yield when faced with a
compelling and fully demonstrated state interest that must be given primacy. In this
exceptional situation, the balance undeniably tilts in favor of government access or
intrusion into private information. Even then, however, established jurisprudence still
requires safeguards to protect privacy rights: the law or rule allowing access or intrusion
must be so narrowly drawn to ensure that other constitutionally-protected rights
outside the ambit of the overriding state interests are fully protected.[27]

The majority of the Court in Ople v. Torres,[28] for instance, found the repercussions and
possibilities of using biometrics and computer technologies in establishing a National
Computerized Identification Reference System to be too invasive to allow Section 4 of
Administrative No. 308 (the assailed regulation which established the ID system) to pass
constitutional muster. According to the majority, the lack of sufficient standards in
Section 4 renders it vague and overly broad, and in so doing, was not narrowly fitted to
accomplish the state’s objective. Thus, it was unconstitutional for failing to ensure the
protection of other constitutionally-protected privacy rights.

Other governmental actions that had been declared to be constitutionally infirm for
failing the compelling state interest test discussed above include the city ordinance
barring the operation of motels and inns within the Ermita-Malate area in City of Manila
v. Laguio Jr.,[29] and the city ordinance prohibiting motels and inns from offering short-
time admission and pro-rated or “wash up” rates in White Light Corporation v. City of
Manila.[30] In both cases, the Court found that the city ordinance overreached and
violated the right to privacy of motel patrons, both single and married.

C.2 Traffic and Content Data 

The Internet serves as a useful technology as it facilitates communication between

people through the application programs they use. More precisely, the Internet is “an
electronic communications network that connects computer networks and
organizational computer facilities around the world.”[31] These connections result in
various activities online, such as simple e-mails between people, watching and
downloading of videos, making and taking phone calls, and other similar activities, done
through the medium of various devices such as computers, laptops, tablets and mobile
phones.[32]

Traffic data refer to the computer data generated by computers in communicating to

each other to indicate a communication’s origin, destination, route, time, date, size,
duration or type of underlying service.[33] These data should be distinguished
from content data which contain the body or message of the communications sent.
[34]
 Traffic data do not usually indicate on their face the actual identity of the sender of
the communication; the content data, on the other hand, usually contain the identity of
sender and recipient and the actual communication between them.

It must also be appreciated that as the technology now exists, data (both traffic and
content) are usually sent through the Internet through a packet-switching network. The
system first breaks down the materials sent into tiny packets of data which then pass
through different networks until they reach their destination where they are
reassembled into the original data sent.

These tiny packets of data generally contain a header and a payload.

The header contains the overhead information about the packet, the service and other
transmission-related information. It includes the source and destination of the data, the
sequence number of the packets, and the type of service, among others. The payload,
on the other hand, contains the actual data carried by the packet.[35] Traffic data may be
monitored, recorded and collected from the headers of packets.[36]

I hold the view, based on the above distinctions and as the ponencia did, that no
reasonable expectation of privacy exists in traffic data as they appear in the header, as
these are data generated in the course of communications between or among the
participating computers or devices and intermediary networks. The absence of any
expectation is based on the reality that the traffic data: are open as they pass through
different unknown networks;[37] cannot be expected to be private as they transit on the
way to their intended destination; and are necessarily identified as they pass from
network to network. In contrast, the content data they contain remain closed and
undisclosed, and do not have to be opened at all in order to be transmitted. The
unauthorized opening of the content data is in fact a crime penalized under the
Cybercrime Law.[38]

For a clearer analogy, traffic data can be likened to the address that a person sending an
ordinary mail would provide in the mailing envelope, while the size of the
communication may be compared to the size of the envelope or package mailed
through the post office. There can be no reasonable expectation of the privacy in the
address appearing in the envelope and in the size of the package as it is sent through a
public network of intermediary post offices; they must necessarily be read in these
intermediary locations for the mail to reach its destination.

A closer comparison can be drawn from the number dialed in using a telephone, a
situation that the US Supreme Court had the opportunity to pass upon in Smith v.
Maryland[39] when it considered the constitutionality of the Pen Register Act.[40] The US
Court held that the Act does not violate the Fourth Amendment (the right to privacy)
because no search is involved; there could be no reasonable expectation of privacy in
the telephone numbers that a person dials. All telephone users realize that they must
“convey” phone numbers to the telephone company whose switching equipment serve
as medium for the completion of telephone calls.

As in the case of the regular mail and the use of numbers in communicating by
telephone, privacy cannot be reasonably expected from traffic data per se, because
their basic nature – data generated in the course of sending communications from a
computer as communications pass through a public network of intermediate computers.

To complete the comparison between transfer data and content data, an individual
sending an e-mail through the Internet would expect at least the same level of privacy in
his email’s content as that enjoyed by the mail sent through the post office or in what is
said during a telephone conversation. Expectations regarding the confidentiality of
emails may in fact be higher since their actual recipients are not identified by their
actual names but by their email addresses, in contrast with regular mails where the
addresses in the envelopes identify the actual intended recipients and are open to the
intermediary post offices through which they pass.

At the same level of privacy are the information that an Internet subscriber furnishes
the Internet provider. These are also private data that current data privacy
laws[41] require to be accurate under the guarantee that the provider would keep them
secure, protected, and for use only for the purpose for which they have been collected.

For instance, a customer buying goods from a website used as a medium for purchase or
exchange, can expect that the personal information he/she provides the website would
only be used for facilitating the sales transaction.[42] The service provider needs the
customer’s consent before it can disclose the provided information to others; otherwise,
criminal and civil liability can result.[43] This should be a reminder to service providers
and their staff who sell telephone numbers and addresses to commercial companies for
their advertising mailing lists.

Notably, social networking websites allow its subscribers to determine who would view
the information the subscribers provide, i.e., whether the information may be viewed by
the public in general, or by a particular group of persons, or only by the subscriber.
[44]
 Like the contents of Internet communications, the user and the public in general
expect these information to be private and confidential.

In the context of the present case where the right to privacy is pitted against
government intrusion made in the name of public interest, the intrinsic nature of traffic
data should be fully understood and appreciated because a miscalibration may carry
profound impact on one or the other.

In concrete terms, casting a net of protection wider than what is necessary to protect
the right to privacy in the Internet can unduly hinder law enforcement efforts in
combating cybercrime. Raw traffic data raise no expectation of privacy and should not
be beyond the reach of law enforcers. At the opposite end, constitutionally allowing the
unregulated inspection of Section 12 may unwittingly allow government access or
intrusion into data greater than what the public recognizes or would allow, resulting in
the violation of privacy rights.

A miscalibration may immediately affect congressional action addressing the balancing

between the privacy rights of individuals and investigative police action. The recognition
of the right to privacy over raw traffic data may curtail congressional action by
practically requiring Congress to increase the required governmental interest not only
for the real-time surveillance and collection of traffic data, but also for simple police
investigative work. The effect would of course be most felt at the level of field law
enforcement where officers would be required to secure a higher level of compelling
governmental interest simply to look at raw traffic data even on a non-surveillance
situation. Using the above email analogy, it may amount to requiring probable cause to
authorize law enforcement to look at an address in a mailing envelope coursed through
the public post office.

Not to be forgotten is the reality that information and communication technology –

particularly on the transmission, monitoring and encryption of data – is continuously
evolving with no foreseeable end in sight. In the words of Justice Scalia in Kyllo v. United
States,[45] a case pitting the right to privacy with the law enforcement’s use of thermal
imaging devices: “the rule we adopt must take account of more sophisticated systems
that are already in use or in development.”[46]

This Court, made aware of this reality, must similarly proceed with caution in exercising
its duty to examine whether a law involving the regulation of computers and cyber
communications transgresses the Constitution. If we must err, we should do so in favor
of slow and carefully calibrated steps, keeping in mind the possible and foreseeable
impact of our decisions on future technology scenarios and on our jurisprudence. After
all, our constitutionally-designed role is merely to interpret policy as expressed in the
law and rules, not to create policy.

C.3 Data collected from Online Activities – the midway point between traffic data and
content data.

While traffic data can practically be considered as disclosed (and consequently, open
and non-confidential) data, they can – once collected and recorded over a period of
time, or when used with other technologies – reveal information that the sender and
even the general public expect to be private and confidential.

This potential use of raw traffic data serves as the limit for the analogy between traffic
data and the addresses found in envelopes of regular mails. Mailed letters exist in the
physical world and, unless coursed through one central post office, can hardly be
monitored for a recognizable pattern of activities that can yield significant data about
the writer or the recipient.

In contrast, the Internet allows the real-time sending and receiving of information at any
given time, to multiple recipients who may be sending and receiving their own
information as well. This capability and the large amount of traffic that ensues in real
time open wide windows of opportunity for analysis of the ensuing traffic for trends and
patterns that reveal information beyond the originally collected and recorded raw traffic
data. For example, the analysis may provide leads or even specifically disclose the actual
geographical location of the sender or recipient of the information, his online activity,
the websites he is currently browsing, and even possibly the content of the information
itself.

It is at this point that the originally raw traffic data mass cross over and partake of the
nature of content data that both the individual and the public expect to be private.
Evidently, privacy interests arise, not from the raw data themselves, but from the
resulting conclusions that their collection and recording yield. Thus, violation of any
existing constitutional right starts at this point. From the point of view of effective
constitutional protection, the trigger is not at the point of the private information end
result, but at the point of real-time collection and recording of data that, over time and
with analysis, yield private and confidential end result. In other words, it is at the
earliest point that safeguards must be in place.

That this aspect of Internet use may no longer simply be an awaited potential but is
already a reality now with us, can be discerned from what computer pundits say about
the application of proper traffic analysis techniques to the traffic data of phone calls
conducted through the Internet (also known as Voice Over Internet Protocol or VOIP).
They claim that this analysis can reveal the language spoken and the identity of the
speaker, and may even be used to reconstruct the actual words spoken during the
phone conversation.[47] Others, on the other hand, have tested the possibility of inferring
a person’s online activities for short periods of time through traffic data analysis.[48]

Recent developments in the Internet, such as the rise of Big Data[49] and the Internet of
Things,[50] also serve as evidence of the realization of these possibilities, as people share
more and more information on how they conduct their daily activities in the Internet
and on how these information are used to perform other tasks. Right now, wireless
signal strength in multiple monitoring locations may be used to accurately estimate a
user’s location and motion behind walls.[51] With the advent of the Internet of Things,
which equips devices with sensors that allow the direct gathering of information in the
physical world for transmission to the Internet, even seemingly innocuous traffic data,
when collected, may possibly reveal even personal and intimate details about a person
and his activities.

Thus, I believe it indisputable that information gathered from purposively collected and
analyzed raw traffic data, now disclose information that the Internet user never
intended to reveal when he used the Internet. These include the language used in a
phone conversation in the Internet, the identity of the speaker, the content of the
actual conversation, as well as a person’s exact location inside his home. From this
perspective, these data, as collected and/or analyzed from online activities, are no
different from content data and should likewise be protected by the right to privacy.

C.4 Deficiencies of Section 12

Section 12 of the Cybercrime Law authorizes law enforcement agents to collect and
record in real-time traffic data associated with specified communications, under the
following terms:
Section 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with
due cause, shall be authorized to collect or record by technical or electronic means
traffic data in real-time associated with specified communications transmitted by means
of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed: (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person
for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
I have no doubt that the state interest that this section seeks to protect is a compelling
one. This can be gleaned from Section 2 of the Cybercrime Law which clearly sets out
the law’s objective – to equip the State with sufficient powers to prevent and combat
cybercrime. The means or tools to this objective, Section 12 among them, would enable
our law enforcers to investigate incidences of cybercrime, and apprehend and prosecute
cybercriminals. According to the Department of Justice, nearly nine out of ten Filipino
Internet users had been victims of crimes and malicious activities committed online.
Contrast this to the mere 2,778 cases of computer crimes referred to the Anti-
Transnational Crime Division (ATCD) of the Criminal Investigation and Detection Group
(CIDG) of the Philippine National Police (PNP) from 2003 to 2012,[52] to get a picture of
just how vulnerable the citizenry is to computer-related crimes.

But bad might the situation be and as already mentioned in passing above, a
demonstrated and compelling state interest effectively serves only as starting point and
basis for the authority to grant collection and recording authority to state agents faced
with clearly established right to privacy. In addition to and as equally important as the
invoked compelling state interest, is the requirement that the authorizing law or rule
must provide safeguards to ensure that no unwarranted intrusion would take place to
lay open the information or activities not covered by the state interest involved; the law
or rule must be narrowly drawn to confine access to what the proven state interests
require.

I submit that, on its face, Section 12 fails to satisfy this latter constitutional requirement.
In Section 12 terms, its “due cause” requirement does not suffice as the safeguard that
the Constitution requires.

My examination of Section 12 shows that it properly deals with the various types of data
that computer communication generates, i.e., with traffic data per se, with data other
than the defined traffic data (thus, of content data), and with the real-time collection of
these data over time. The law, however, is wanting on the required safeguards when
private data are accessed.

True, traffic data per se does not require any safeguard or measure stricter than the
“due cause” that the law already requires, while content data can be accessed only on
the basis of a judicial warrant. The real time collection and recording of traffic data and
its “due cause” basis, however, suffer from fatal flaws.

The law’s “due cause” standard is vague in terms of the substance of what is “due
cause” and the procedure to be followed in determining the required “cause”. The law
is likewise overly broad so that real-time monitoring of traffic data can effectively
overreach its allowable coverage and encroach into the realm of constitutionally-
protected activities of Internet users, specifically, data that a cybercrime may not even
address.

Consider, in this regard, that as worded, law enforcement agents, i.e., members of the
National Bureau Investigation (NBI) and the Philippine National Police (PNP),
[53]
 practically have carte blanche authority to conduct the real-time collection and
recording of traffic data at anytime and on any Internet user, given that the law does
not specifically define or give the parameters of the purpose for which law enforcement
authorities are authorized to conduct these intrusive activities. Without sufficient
guiding standards, the “due cause” basis in effect allows law enforcement agents to
monitor all traffic data. This approach, to my mind, may even allow law enforcement to
conduct constitutionally-prohibited fishing expeditions for violations and their
supporting evidence.

Additionally, while Section 2 empowers the State to adopt sufficient powers to

conduct the detection, investigation and prosecution of cybercrime as an expressed
policy, Section 12, however, does not provide a standard sufficient to render
enforcement rules certain or determinable; it also fails to provide guiding particulars on
the real-time monitoring of traffic data. Assuming that the Cybercrime Law
contemplates that real-time collection of traffic data would assist in criminal
investigations, the provision does not provide any specified or determinable trigger for
this activity -- should collection and recording be connected with criminal investigation
in general? Is it necessary that a cybercrime has already been committed, or could it be
used to prevent its commission? Would it only apply to investigations on cybercrime, or
would it include investigations on crimes in the physical world whose aspects have
seeped into the Internet?

In the absence of standards, guidelines or clean definitions, the ‘due cause’ requirement
of Section 12 fatally opens itself to being vague as it does not even provide the context
in which it should be used. It merely provides that the real-time monitoring would be
related to ‘specified communications’ without mentioning as to what these
communications pertain to, how these communications will be specified, and as well as
the extent of the specificity of the communications.

Section 12 likewise does not provide for the extent and depth of the real-time collection
and recording of traffic data. It does not limit the length of time law enforcement agents
may conduct real-time monitoring and recording of traffic data, as well as the allowable
contours by which a specified communication may be monitored and recorded. In other
words, it does not state how long the monitoring and recording of the traffic data
connected to a specified communication could take place, how specific a specified
communication should be, as well as the extent of the association allowable.

The absolute lack of standards in the collection and recording of traffic data under
Section 12 in effect negates the safeguards under Section 13 of the Cybercrime Law.
Section 13 obligates internet service providers to collect and store traffic data for six
months, which data law enforcement agents can only access based on a judicial order
under Section 14. Properly understood, Section 13 is a recognition that traffic data once
collected in depth and for a considerable period of time, would produce information
that are private. But because Section 12 does not specify the length and extent of the
real-time collection, monitoring and storage of traffic data, it in effect skirts the judicial
warrant requirement before any data may be viewed under Section 13. The limitation in
this section also does not also apply if the law enforcement agency has its own
collection and recording facilities, a possibility that in these days is not farfetched.

Neither does Section 12 as worded sufficiently limit the information that would be
collected and recorded in real-time only to traffic data. The lack of standards in Section
12 regarding the extent and conduct of the real-time collection and recording of traffic
data effectively allows for its collection in bulk, which, as earlier pointed out, reveals
information that are private. The lack of standards also does not prevent the possibility
of using technologies that translates traffic data collected in real-time to content data or
disclose a person’s online activities.

Significantly, the Cybercrime Law’s omissions in limiting the scope and conduct of the
real-time collection and recording of traffic data cannot be saved by statutory
construction; neither could it be filled-in by implementing rules and regulations. We can
only construe what the law provides, harmonize its provisions and interpret its
language. We cannot, no matter how noble the cause, add to what is not provided in
the law.

The same limitation applies to law enforcement agents in the implementation of a law –
assuming they have been delegated to provide for its rules and regulations. They
cannot, in fixing the details of a law’s implementation, legislate and add to the law that
they seek to implement.

Given the importance of Section 12 in cybercrime prevention and its possible impact on
the right to privacy, we cannot, in interpreting a law, usurp what is rightfully the
Congress’s duty and prerogative to ensure that the real-time collection of traffic data
does not overreach into constitutionally-protected activities. In other words, it is
Congress, through law, which should draw the limits of traffic data collection. Our duty
in the Court comes only in determining whether these limits suffice to meet the
principles enshrined in the Constitution.

In sum, as worded, the authorization for a warrantless real-time collection and

recording of traffic data is not narrowly drawn to ensure that it would not encroach
upon the privacy of Internet users online. Like A.O. No. 308 in Ople v. Torres, Section 12
of the Cybercrime threatens the right to privacy of our people, and should thus be
struck down as unconstitutional.

D. Implications for law enforcement of the unconstitutionality of Sec. 12

The Court has, in addition to its constitutional duty to decide cases and correct
jurisdictional errors, the duty to provide guidance to the bench and bar.[54] It is in
consideration of this duty, as well as the pressing need for balance between the
investigation and prosecution of cybercrimes and the right to privacy, that I discuss the
repercussions of my proposed ruling on law enforcement.

The declaration of the unconstitutionality of Section 12 in the manner framed by the

Court, should not tie the hands of Congress in enacting a replacement provision
empowering the conduct of warrantless real-time collection of traffic data by law
enforcement agents. This grant of power should of course avoid the infirmities of the
present unconstitutional provision by providing for standards and safeguards to protect
private data and activities from unwarranted intrusion.

I clarify as well that the unconstitutionality of Section 12 does not remove from the
police the authority to undertake real-time collection and recording of traffic data as an
investigation tool that law enforcement agents may avail of in the investigation and
prosecution of criminal offenses, both for offenses involving cybercrime and ordinary
crimes. Law enforcement agencies may still conduct these activities under their general
powers, but with a prior judicial authorization in light of the nature of the data to be
collected. To cite an example in today’s current crime situation, this tool may effectively
be used against the drug menace whose leadership has so far evaded arrest and whose
operations continue despite police interdiction efforts.

Notably, Section 24 of Republic Act No. 6975 empowers the Philippine National Police to
enforce all laws and ordinances relative to the protection of lives and properties;
maintain peace and order and take all necessary steps to ensure public safety;
investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution; and to exercise the general powers to make
arrest, search and seizure in accordance with the Constitution and pertinent laws.

Section 1 of Republic Act No. 157 as amended, on the other hand, mandates the
National Bureau of Investigation to investigate crimes and other offenses against
Philippine laws, assist, upon request, in the investigation or detection of crimes, and to
establish and maintain an up-to-date scientific crime laboratory and to conduct
researches in furtherance of scientific knowledge in criminal investigation.

These laws sufficiently empower the PNP and the NBI to make use of up-to-date
equipment in the investigation of crimes and in the apprehension and prosecution of
criminals, including cybercriminals. The PNP is particularly empowered to undertake
search and seizure under RA 6975. The need for a judicial warrant does not need be a
stumbling block in these efforts in the sensitive area of Internet data, as the grant of
warrant is merely a question of the existence of a probable cause, proven of course
according to the requirements of the Constitution.
E. The role of the courts in cybercrime prevention and prosecution

Internet has significantly changed the way crimes are committed, and has paved the
way for the emergence of new crimes committed in a totally different plane: from the
previous real, physical world, to the abstract, borderless plane of interconnected
computers linked through the Internet.

In the same manner that technology unleashed these new threats to security and peace,
it also devised new means to detect, apprehend and prosecute those who threaten
society. The Cybercrime Law is notable in its aim to penalize these new threats, and in
giving clear signals and actually empowering our law enforcement agents in the
investigation of these cybercrimes, in the apprehension of cybercriminals, and in the
prosecution of cases against them.

In the same manner likewise that our laws and law enforcement have been adapting to
the threats posed by cybercrime, we in the judiciary must also rise up to the challenge
of competently performing our adjudicative functions in the cyber world.

The judicial steps in cybercrime prosecution start as early as the investigation of

cybercrimes, through the issuance of warrants necessary for real-time collection of
traffic data, as well as the issuance of the orders for the disclosure of data retained by
internet service providers.[55] After these, courts also determine the probable cause for
the arrest of suspects accused of committing cybercrimes. The suspect’s arrest would
then lead to a trial that, depending on the suspect’s conviction or acquittal, could then
go through the judiciary appellate process. During trial, pieces of evidence would be
presented and testimonies heard, and trial courts would then exercise their
constitutional duty to adjudicate the cases brought before them.

Judicial involvement in all these processes requires the handling members of the
Judiciary to be computer literate, at the very least. We cannot fully grasp the
methodologies and intricacies of cybercrimes unless we have a basic understanding of
how the world of computers operates. From the point of law, basic knowledge must be
there to grasp how cybercrimes may be proven before us during trial, and what
constitutes the evidentiary threshold that would allow us to determine, beyond
reasonable doubt, that the person accused really did commit a cybercrime.

For instance, I agree with the Solicitor General’s observation that time is of the utmost
essence in cybercrime law enforcement, as the breadth and speed of technology make
the commission of these crimes and the subsequent destruction of its evidence faster
and easier. To my mind, our current rules of procedure for the issuance of search
warrants might not be responsive enough to effectively track down cybercriminals and
obtain evidence of their crimes. Search warrants for instance, might be issued too late
to seize evidence of the commission of a cybercrime, or may not properly describe what
should be seized, among others.

Due to the highly-technical nature of investigating and prosecuting cybercrimes, as well

as the apparent need to expedite our criminal procedure to make it more responsive to
cybercrime law enforcement, I propose that special cybercrime courts be designated
to specifically handle cases involving cybercrime. In addition, these cybercrime courts
should have  their own rules of procedure tailor-fitted to respond to the technical
requirements of cybercrime prosecution and adjudication.

The designation of special cybercrime courts of course is not outside our power to
undertake: Section 21[56] of the Cybercrime Law grants the Regional Trial Courts
jurisdiction over any violation of the Cybercrime Law, and provides that special
cybercrime courts manned by specially trained judges should be designated. Section 5,
Article VIII of the 1987 Constitution,[57] on the other hand, empowers this Court to
promulgate rules on the pleading, practice, and procedure in all courts.

As with every petition involving the constitutionality of a law, we seek to find the proper
balance between protecting a society where each individual may lawfully enjoy his or
her fundamental freedoms, and where the safety and security of the members of
society are assured through proper regulation and enforcement. In the present petition,
I agree with the ponencia that the Cybercrime Law is improperly tilted towards
strengthening law enforcement, to the detriment of our society’s fundamental right to
privacy. This is highlighted by the law’s position under Section 12 which, as discussed,
goes beyond what is constitutionally permissible. Beyond this finding, however, we need
to provide – within the limits of our judicial power, remedies that will still allow effective
law enforcement in the cyber world. It is in these lights that I urge my colleagues in this
Court to consider the immediate training and designation of specialized cybercrime
courts and the drafting of their own rules of procedure.

As I mentioned in the opening statements of this Concurring Opinion, I have prepared a

table for easy reference to my votes. This table is attached as Annex “A” and is made an
integral part this Opinion.

[1]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[2]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[3]
 Section 19. Restricting or Blocking Access to Computer Data. — When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ shall
issue an order to restrict or block access to such computer data.
[4]
 Guinguing v. Court of Appeals, 508 Phil. 193, 197 – 198 (2005).

See: Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A

Commentary, 2003 Edition, p. 272;

In as early as 1909, our jurisprudence in US v. Sedano has recognized the

constitutionality of libel, noting that “the provisions of the Constitution of the United
States guaranteeing the liberty of the press, from which the provisions of the Philippine
Bill were adopted, have never been held to secure immunity to the person responsible
for the publication of libelous defamatory matter in a newspaper.”

[5]
 Libel, as defined by Article 353 of the Revised Penal Code as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead.

[6]
 During the interpellations of the cybercrime bill before the Senate, Senator Edgardo J.
Angara, the bill’s principal sponsor, pointed out that cyberspace is just a new avenue for
publicizing or communicating a libellous statement which is subject to prosecution and
punishment as defined by the Revised Penal Code. Senate Journal, December 12, 2011,
available at http://www.gov.ph/2012/10/03/for-the-record-public-records-of-senate-
deliberations-on-the-cybercrime-prevention-bill/

[7]
 American Jurisprudence (Vol. 33, p. 292) explains that "Under the common-law
theory, which is embodied in some of the statutory provisions on the subject, the
criminality of a defamatory statement consist in the tendency thereof to provoke a
breach of the peace," but, it adds, "many of the modern enactments, ... ignore this
aspect altogether and make a libelous publication criminal if its tendency is to injure
the person defamed, regardless of its effect upon the public."

The present Philippine law on libel conforms to this modern tendency. For a little
digression on the present law of libel or defamation, let it be noted that the Revised
Penal Code has absorbed libel under Act No. 277 and calumny and insult under the old
Penal Code. (Commentaries on the Revised Penal Code, Guevarra, p. 764.) The new
Penal Code includes "All kinds of attacks against honor and reputation, thereby
eliminating once and for all the idle distinction between calumny, insult and
libel."(Idem, p. 765.) People v. del Rosario, 86 Phil. 163, 165 – 166 (1950).

[8]
 Worcester v. Ocampo, 22 Phil. 42, 73 – 74 (1912).

[9]
 During the senate’s deliberations on the cybercrime bill, Senator Sotto asked Senator
Angara if the bill also addresses internet libel or internet defamation. Senator Angara
answered that the bill includes it as a crime, an actionable offense, because one can be
defamed through Twitter or social media.

To the comment that one’s reputation can easily be ruined and damaged by posts and
comments in social network sites, Senator Angara stated that under the proposed law,
the offended party can sue the person responsible for posting such comments. Senate
Journal, December 12, 2011, available at http://www.gov.ph/2012/10/03/for-the-
record-public-records-of-senate-deliberations-on-the-cybercrime-prevention-bill/

[10]
 One of the most striking aspects of cyberspace is that it "provides an easy and
inexpensive way for a speaker to reach a large audience, potentially of millions." n1 This
characteristic sharply contrasts with traditional forms of mass communication, such as
television, radio, newspapers, and magazines, which require significant start-up and
operating costs and therefore tend to concentrate communications power in a limited
number of hands. Anyone with access to the Internet, however, can communicate and
interact with a vast and rapidly expanding cyberspace audience. n2 As the Supreme
Court opined in its recent landmark decision, Reno v. ACLU, n3 the Internet enables any
person with a phone line to "become a pamphleteer" or "a town crier with a voice that
resonates farther than it could from any soapbox." n4 Indeed, the Internet is "a unique
and wholly new medium of worldwide human communication" n5 that contains content
"as diverse as human thought." n6

The term "cyber-reach" can be used to describe cyberspace's ability to extend the reach
of an individual's voice. Cyber-reach makes the Internet unique, accounts for much of its
explosive growth and popularity, and perhaps holds the promise of a true and
meaningful "free trade in ideas" that Justice Holmes imagined eighty years ago. Bill
Mcswain, Developments in the Law - The Long Arm of Cyber-reach, 112 Harv. L. Rev.
1610 (1998).

[11]
 Alcantara v. Ponce, 545 Phil. 678, 683 (2007).

[12]
 US v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).

[13]
 People v. Casten, CA-G.R. No. 07924-CR, December 13, 1974.

[14]
 Fermin v. People of the Philippines, 573 Phil. 12 (2008).

[15]
 Article 355 of the Revised Penal Code

[16]
 People v. Santiago, G.R. No. L-17663, May 30, 1962, 5 SCRA 231, 233 – 234.

[17]
 Section 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who wilfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b) Attempt in the Commission of Cybercrime. — Any person who wilfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.

[18]
 Section 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.
[19]
 Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making it
is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

[20]
 508 Phil. 193 (2005).

[21]
 361 Phil. 3 (1999).

[22]
 376 US 254.

[23]
 209. The type of data that can be collected is of two types: traffic data and content
data. ‘Traffic data’ is defined in Article 1 d to mean any computer data relating to a
communication made by means of a computer system, which is generated by the
computer system and which formed a part in the chain of communication, indicating the
communication’s origin, destination, route, time, date, size and duration or the type of
service. ‘Content data’ is not defined in the Convention but refers to the communication
content of the communication; i.e., the meaning or purport of the communication, or
the message or information being conveyed by the communication (other than traffic
data).

210. In many States, a distinction is made between the real-time interception of content
data and real-time collection of traffic data in terms of both the legal prerequisites
required to authorize such investigative measure and the offences in respect of which
this measure can be employed. While recognizing that both types of data may have
associated privacy interests, many States consider that the privacy interests in respect
of content data are greater due to the nature of the communication content or
message. Greater limitations may be imposed with respect to the real-time collection of
content data than traffic data. To assist in recognizing this distinction for these States,
the Convention, while operationally acknowledging that the data is collected or
recorded in both situations, refers normatively in the titles of the articles to the
collection of traffic data as ‘real-time collection’ and the collection of content data as
‘real-time interception’.

xxx

215. The conditions and safeguards regarding the powers and procedures related to
real-time interception of content data and real-time collection of traffic data are subject
to Articles 14 and 15. As interception of content data is a very intrusive measure on
private life, stringent safeguards are required to ensure an appropriate balance
between the interests of justice and the fundamental rights of the individual. In the
area of interception, the present Convention itself does not set out specific safeguards
other than limiting authorisation of interception of content data to investigations into
serious criminal offences as defined in domestic law. Nevertheless, the following
important conditions and safeguards in this area, applied in domestic laws, are: judicial
or other independent supervision; specificity as to the communications or persons to be
intercepted; necessity, subsidiarity and proportionality (e.g. legal predicates justifying
the taking of the measure; other less intrusive measures not effective); limitation on the
duration of interception; right of redress. Many of these safeguards reflect the
European Convention on Human Rights and its subsequent case-law (see judgements in
Klass (5), Kruslin (6), Huvig (7), Malone (8), Halford (9), Lambert (10) cases). Some of
these safeguards are applicable also to the collection of traffic data in real-time.

Explanatory Report on the Budapest Convention on Cybercrime, [2001] COETSER 8

(November 23, 2001), available
at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm

[24]
 Morfe v. Mutuc, 130 Phil. 415, 436 (1968).

[25]
 Ople v. Torres, 354 Phil. 948, 970 (1998).

[26]
 See, for instance, the following cases where the Court upheld the governmental
action over the right to privacy: Kilusang Mayo Uno v. NEDA, 521 Phil. 732 (2006)
(regarding the validity of Executive Order No. 420, which established the unified multi-
purpose identification (ID) system for government); Standard Chartered Bank v. Senate
Committee on Banks, 565 Phil. 744 (2007) (regarding the Senate’s resolution compelling
petitioners who are officers of petitioner SCB-Philippines to attend and testify before
any further hearing to be conducted by the Senate); Gamboa v. Chan, G.R. No. 193636,
July 24, 2012, 677 SCRA 385, 395 – 399 (regarding the Regional Trial Court of Laoag’s
decision denying the petitioner’s petition for the privilege of the writ of habeas data).

[27]
 See, for instance, the following cases where the Court nullified governmental actions
and upheld the right to privacy: City of Manila v. Laguio Jr., 495 Phil. 289, 317 – 319
(2005) (regarding a city ordinance barring the operation of motels and inns, among
other establishments, within the Ermita-Malate area); Social Justice Society v.
Dangerous Drugs Board, 591 Phil. 393, 413 – 417 (2008) (regarding mandatory drug-
testing for of candidates for public office and persons charged with a crime having an
imposable penalty of imprisonment of not less than six (6) years and one (1) day before
the prosecutor’s office); White Light Corporation v. City of Manila, 596 Phil. 444, 464 –
467 (2009) (regarding a city ordinance prohibiting motels and inns from offering short-
time admission, as well as pro-rated or “wash up” rates).

[28]
 Ople v. Torres, 354 Phil. 948, 970 (1998).

[29]
 City of Manila v. Laguio Jr., 495 Phil. 289 (2005).

[30]
 White Light Corporation v. City of Manila, 596 Phil. 444 (2009).

[31]
 Internet definition, Merriam Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/internet
[32]
 As the technology exists now, data is usually sent through the Internet through a
packet-switching network. Under this system, data sent through the Internet is first
broken down into tiny packets of data which pass through different networks until it
reaches its destination, where it is reassembled into the data sent. These tiny packets of
data generally contain a header and a payload. The header keeps overhead information
about the packet, the service and other transmission-related information. This includes
the source and destination of the data, the sequence number of the packets, and the
type of service, among others. The payload, on the other hand, is the actual data carried
by the packet. Traffic data may be monitored, recorded and collected from the headers
of packets.

[33]
 Chapter 1, Article 1 (d) of the Cybercrime Convention; see also Section 3 (p) of
Republic Act No. 10175.

[34]
 Chapter 1, Article 1 (b) of the Cybercrime Convention

[35]
 What is a packet?, HowStuffWorks.com (Dec. 01,
2000) http://computer.howstuffworks.com/question525.htm See also: Structure of the
Internet: Packet switching, in A-level Computing/AQA, http://en.wikibooks.org/wiki/A-
level_Computing/AQA/Computer_Components,_The_Stored_Program_Concept_and_th
e_Internet/Structure_of_the_Internet/Packet_switching; and What is Packet
Switching?, Teach-ICT.com, http://www.teach-
ict.com/technology_explained/packet_switching/packet_switching.html.

[36]
 Edward J. Wegman and David J. Marchette, On Some Techniques for Streaming Data:

A Case Study of Internet Packet Headers,

p.7, http://www.dmarchette.com/Papers/VisPacketHeadersRev1.pdf.

[37]
 167. Often more than one service provider may be involved in the transmission of a
communication. Each service provider may possess some traffic data related to the
transmission of the specified communication, which either has been generated and
retained by that service provider in relation to the passage of the communication
through its system or has been provided from other service providers. Sometimes traffic
data, or at least some types of traffic data, are shared among the service providers
involved in the transmission of the communication for commercial, security, or technical
purposes. In such a case, any one of the service providers may possess the crucial traffic
data that is needed to determine the source or destination of the communication.
Often, however, no single service provider possesses enough of the crucial traffic data to
be able to determine the actual source or destination of the communication. Each
possesses one part of the puzzle, and each of these parts needs to be examined in order
to identify the source or destination. Explanatory Report on the Budapest Convention
on Cybercrime, [2001] COETSER 8 (Nov. 23, 2001), available
at http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.

[38]
 A law enforcement agent’s unauthorized access to content data may constitute illegal
interception, which is penalized by Section 4, paragraph 2 of the Cybercrime Law:
(2) Illegal Interception. – The interception made by technical means without right of any
non-public transmission of computer data to, from, or within a computer system
including electromagnetic emissions from a computer system carrying such computer
data.

[39]
 442 U.S. 735 (1979).

[40]
 In Smith v. Maryland 442 U.S. 735 (1979), the petitioner had been charged with
robbery, and prior to his trial, moved that the evidence acquired by the police through
the installation of a pen register at a telephone company’s central offices. This allowed
the police to record the numbers dialed from the telephone at the petitioner’s home.
The US Supreme Court eventually held that this act did not violate the petitioner’s right
to privacy, as it does not constitute a search. The petitioner did not entertain an actual,
legitimate and reasonable expectation of privacy to the phone numbers he dialed.

[41]
 In the Philippines, data privacy is governed by Republic Act 10173 or The Data Privacy
Act of 2012. RA 10173 established the country’s data privacy framework. It recognizes
the individual’s rights to his personal information and sensitive information, and fines
the unlawful processing of these kinds of information and the violation of the rights of a
data subject.

[42]
 Section 16 of the Data Privacy Act provides:

Section 16. Rights of the Data Subject. – The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are
being or have been processed;
xxxx

(e) Suspend, withdraw or order the blocking, removal or destruction of his or her
personal information from the personal information controller’s filing system upon
discovery and substantial proof that the personal information are incomplete, outdated,
false, unlawfully obtained, used for unauthorized purposes or are no longer necessary
for the purposes for which they were collected. In this case, the personal information
controller may notify third parties who have previously received such processed
personal information; and

(f) Be indemnified for any damages sustained due to such inaccurate, incomplete,
outdated, false, unlawfully obtained or unauthorized use of personal information.

[43]
 Section 31 and 32 of the Data Privacy Act provide:

Section 31. Malicious Disclosure. – Any personal information controller or personal

information processor or any of its officials, employees or agents, who, with malice or in
bad faith, discloses unwarranted or false information relative to any personal
information or personal sensitive information obtained by him or her, shall be subject to
imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of
not less than Five hundred thousand pesos (Php500,000.00) but not more than One
million pesos (Php1,000,000.00).
Section 32. Unauthorized Disclosure. – (a) Any personal information controller or
personal information processor or any of its officials, employees or agents, who
discloses to a third party personal information not covered by the immediately
preceding section without the consent of the data subject, shall he subject to
imprisonment ranging from one (1) year to three (3) years and a fine of not less than
Five hundred thousand pesos (Php500,000.00) but not more than One million pesos
(Php1,000,000.00).

(b) Any personal information controller or personal information processor or any of its
officials, employees or agents, who discloses to a third party sensitive personal
information not covered by the immediately preceding section without the consent of
the data subject, shall be subject to imprisonment ranging from three (3) years to five
(5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but
not more than Two million pesos (Php2,000,000.00).

[44]
 Mindi McDowell, Staying Safe on Social Network Sites, US-CERT, (Feb. 6,
2013) http://www.us-cert.gov/ncas/tips/ST06-003; See Adam Tanner, Users more savvy
about social media privacy than thought, poll says, Forbes Magazine, (Nov. 11,
2013) http://www.forbes.com/sites/adamtanner/2013/11/13/users-more-savvy-about-
social-media-privacy-than-thought-poll-finds/.

[45]
 533 U.S. 27 (2001).

[46]
 533 U.S. 27, 37 (2001).

[47]
 Riccardo Bettatti, Traffic Analysis and its Capabilities, (Sept. 10,
2008) http://usacac.army.mil/cac2/cew/repository/papers/Modern_Traffic_Analysis_an
d_its_Capabilities.pdf; Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring
Users’ Online Activities Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf citing C.V. Wright, L. Ballard, F. Monrose, and G. M. Masson, Language identification
of encrypted VoIP traffic: Alejandra y roberto or alice and bob in Proceedings of USENIX
Security Symposium, 2007 and C.V. Wright, L. Ballard, S. E. Coull, F. Monrose, and G. M.
Masson, Spot me if you can: Uncovering spoken phrases in encrypted VoIP
conversations, In Proceedings of IEEE Symposium on Security and Privacy, 2008.

[48]
 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities
Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf.

[49]
 See: James Manyika, Michael Chui, Brad Brown, Jacques Bughin, Richard Dobbs,
Charles Roxburgh, Angela Hung Byers, Big data: The next frontier for innovation,
competition, and productivity, Mckinsey Global Institute, (May
2011) http://www.mckinsey.com/insights/business_technology/big_data_the_next_fro
ntier_for_innovation

[50]
 More objects are becoming embedded with sensors and gaining the ability to
communicate. The resulting information networks promise to create new business
models, improve business processes, and reduce costs and risks. Michael Chui, Markus
Loffler, and Roger Roberts, The Internet of Things, Mckinsey Global Institute, (March
2010) http://www.mckinsey.com/insights/high_tech_telecoms_internet/the_internet_o
f_things.

[51]
 Fan Zhang, Wenbo He, Xue Liu and Patrick Bridges, Inferring Users’ Online Activities
Through Traffic Analysis (June
2011) http://www.math.unipd.it/~conti/teaching/CNS1213/atpapers/Profiling/profiling.
pdf citing T. Jiang, H.J. Wang, and Y. Hu. Preserving location privacy in wireless LANs In
Proceedings of MobiSys, pages 246–257, 2007 and J. Wilson and N. Patwari, See
through walls: Motion tracking using variance-based radio tomography networks, IEEE
Transactions on Mobile Computing, 2010.

[52]
 Department of Justice Primer on Cybercrime, available
at http://www.upm.edu.ph/downloads/announcement/DOJ%20Primer%20on
%20Cybercrime%20Law.pdf; see also “Quashing Cybercrime,” Senator Edgardo Angara’s
sponsorship speech on the Cybercrime Prevention Act (May 11,
2011) http://www.senate.gov.ph/press_release/2011/0511_angara3.asp

[53]
 Section 10 of the Cybercrime Law provides:

Section 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI)
and the Philippine National Police (PNP) shall be responsible for the efficient and
effective law enforcement of the provisions of this Act. The NBI and the PNP shall
organize a cybercrime unit or center manned by special investigators to exclusively
handle cases involving violations of this Act.

[54]
 See for instance, Fernandez v. Comelec, 579 Phil. 235, 240 (2008) and Villanueva v.
Adre, 254 Phil. 882, 887 (1989), where the Court declared a petition moot and
academic, but proceeded to rule on the issue of jurisdiction for the guidance of the
bench and the bar; or Altres v. Empleo, 594 Phil. 246, 261 – 262 (2008), where the Court
restated in capsule form the jurisprudential pronouncements on forum-shopping;
or Republic v. CA and Molina, 335 Phil. 664, 676 – 680 (1997), where the Court
formulated guidelines in the interpretation and application of Art. 36 of the Family
Code.

[55]
 Section 14 and 16 of the Cybercrime Law provides:

Section 14. Disclosure of Computer Data. — Law enforcement authorities, upon

securing a court warrant, shall issue an order requiring any person or service provider
to disclose or submit subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt of the order in relation
to a valid complaint officially docketed and assigned for investigation and the disclosure
is necessary and relevant for the purpose of investigation.

Section 16. Custody of Computer Data. — All computer data, including content and
traffic data, examined under a proper warrant shall, within forty-eight (48) hours after
the expiration of the period fixed therein, be deposited with the court in a sealed
package, and shall be accompanied by an affidavit of the law enforcement authority
executing it stating the dates and times covered by the examination, and the law
enforcement authority who may access the deposit, among other relevant data. The law
enforcement authority shall also certify that no duplicates or copies of the whole or any
part thereof have been made, or if made, that all such duplicates or copies are included
in the package deposited with the court. The package so deposited shall not be opened,
or the recordings replayed, or used in evidence, or then contents revealed, except upon
order of the court, which shall not be granted except upon motion, with due notice and
opportunity to be heard to the person or persons whose conversation or
communications have been recorded.

[56]
 Section 21 of the Cybercrime Law provides:

Section 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any
violation of the provisions of this Act. including any violation committed by a Filipino
national regardless of the place of commission. Jurisdiction shall lie if any of the
elements was committed within the Philippines or committed with the use of any
computer system wholly or partly situated in the country, or when by such commission
any damage is caused to a natural or juridical person who, at the time the offense was
committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges
to handle cybercrime cases.

[57]
 Article VIII, Section 5, paragraph 5 of the 1987 Constitution provides:

Section 5. The Supreme Court shall have the following powers:

xxx

5) Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

DISSENTING AND CONCURRING OPINION

LEONEN, J.:

Most of the challenges to the constitutionality of some provisions of the Cybercrime

Prevention Act of 2012 (Republic Act No. 10175) are raised without an actual case or
controversy. Thus, the consolidated petitions should fail except for those that raise
questions that involve the imminent possibility that the constitutional guarantees to
freedom of expression will be stifled because of the broadness of the scope of the text
of the provision. In view of the primacy of this fundamental right, judicial review of the
statute itself, even absent an actual case, is viable.

With this approach, I am of the opinion that the constitution requires that libel as
presently contained in the Revised Penal Code and as reenacted in the Cybercrime
Prevention Act of 2012 (Rep. Act No. 10175) be struck down as infringing upon the
guarantee of freedom of expression provided in Article III, Section 4 of our Constitution.
I am also of the firm view that the provisions on cybersex as well as the provisions
increasing the penalties of all crimes committed with the use of computers are
unconstitutional. The provision limiting unsolicited commercial communications should
survive facial review and should not be declared as unconstitutional.

I concur with the majority insofar as they declare that the “take down” clause, the
provision allowing dual prosecutions of all cybercrimes, and the provision that broadly
allows warrantless searches and seizures of traffic data, are unconstitutional. This is
mainly because these present unwarranted chilling effects on the guaranteed and
fundamental rights of expression.

Framework of this Opinion

Reality can become far richer and more complex than our collective ability to imagine
and predict. Thus, conscious and deliberate restraint — at times — may be the better
part of judicial wisdom.

The judiciary’s constitutionally mandated role is to interpret and apply the law. It is not
to create or amend law on the basis of speculative facts which have not yet happened
and which have not yet fully ripened into clear breaches of legally demandable rights or
obligations. Without facts that present an actual controversy, our inquiry will be roving
and unlimited. We substitute our ability to predict for the rigor required by issues
properly shaped in adversarial argument of the real. We become oracles rather than a
court of law.

This is especially so when the law is made to apply in an environment of rapidly evolving
technologies that have deep and far-reaching consequences on human expression,
interaction, and relationships. The internet creates communities which virtually cross
cultures, creating cosmopolitarian actors present in so many ways and in platforms that
we are yet starting to understand.

Petitioners came to this court via several petitions for certiorari and/or prohibition
under Rule 65 of the Rules of Court. They seek to declare certain provisions of Rep. Act
No. 10175 or the Cybercrime Prevention Act of 2012[1] as unconstitutional. They allege
grave abuse of discretion on the part of Congress. They invoke our power of judicial
review on the basis of the textual provisions of the statute in question, their reading of
provisions of the Constitution, and their speculation of facts that have not happened —
may or may not happen — in the context of one of the many technologies available and
evolving in cyberspace. They ask us to choose the most evil among the many possible
but still ambiguous future factual permutations and on that basis declare provisions not
yet implemented by the Executive or affecting rights in the concrete as unconstitutional.
In effect, they ask us to do what the Constitution has not even granted to the President:
a provision-by-provision veto in the guise of their interpretation of judicial review.

Although pleaded, it is difficult to assess whether there was grave abuse of discretion on
the part of the Executive. This court issued a temporary restraining order to even
proceed with the drafting of the implementing rules. There has been no execution of
any of the provisions of the law.

This is facial review in its most concrete form. We are asked to render a pre-
enforcement advisory opinion of a criminal statute. Generally, this cannot be done if we
are to be faithful to the design of our Constitution.

The only instance when a facial review is permissible is when there is a clear showing
that the provisions are too broad under any reasonable reading that it imminently
threatens expression. In these cases, there must be more of a showing than simply
the in terrorem effect of a criminal statute. It must clearly and convincingly show that
there can be no determinable standards that can guide interpretation. Freedom of
expression enjoys a primordial status in the scheme of our basic rights. It is fundamental
to the concept of the people as sovereign. Any law — regardless of stage of
implementation — that allows vague and unlimited latitude for law enforcers to do prior
restraints on speech must be struck down on its face.

This is the framework taken by this opinion.

The discussion in this dissenting and concurring opinion is presented in the following
order:
1. Justiciability

2. The Complexity of the Internet and the Context of the Law

3. The Doctrine of Overbreadth and the Internet

4. Take Down Clause

5. Libel Clauses

6. Cybersex Provisions

7. Speech Component in the Collection of Traffic Data

8. Commercial Speech
I (A)

Justiciability

Judicial review — the power to declare a law, ordinance, or treaty as unconstitutional or

invalid — is inherent in judicial power.[2] It includes the power to “settle actual
controversies involving rights which are legally demandable”[3] and “to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on any part of any branch or instrumentality of Government.”[4] The
second aspect of judicial review articulated in the 1987 Constitution nuances the
political question doctrine.[5] It is not licensed to do away with the requirements of
justiciability.

The general rule is still that: “the constitutionality of a statute will be passed on only if,
and to the extent that, it is directly and necessarily involved in a justiciable controversy
and is essential to the protection of the rights of the parties concerned.”[6] Justiciability
on the other hand requires that: (a) there must be an actual case or
controversy involving legal rights that are capable of judicial determination; (b) the
parties raising the issue must have standing or locus standi to raise the constitutional
issue; (c) the constitutionality must be raised at the earliest possible opportunity,
thus ripe for adjudication; and (d) the constitutionality must be the very lis mota of the
case, or the constitutionality must be essential to the disposition of the case.[7]

It is essential that there be an actual case or controversy.[8] “There must be existing

conflicts ripe for judicial determination — not conjectural or anticipatory. Otherwise,
the decision of the Court will amount to an advisory opinion.”[9]

In Information Technology Foundation of the Phils. v. COMELEC,[10] this court described

the standard within which to ascertain the existence of an actual case or controversy:
It is well-established in this jurisdiction that "x x x for a court to exercise its power of
adjudication, there must be an actual case or controversy -- one which involves a
conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging." The controversy must be justiciable -- definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other; that is, it must concern a real and not a
merely theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state
of facts.[11] (Citations omitted, emphasis supplied)
In Lozano v. Nograles,[12] this court also dismissed the petitions to nullify House
Resolution No. 1109 or “A Resolution Calling upon the Members of Congress to Convene
for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a
Three-fourths Vote of All the Members of Congress.” In dismissing the petitions, this
court held:
It is well settled that it is the duty of the judiciary to say what the law is. The
determination of the nature, scope and extent of the powers of government is the
exclusive province of the judiciary, such that any mediation on the part of the latter for
the allocation of constitutional boundaries would amount, not to its supremacy, but to
its mere fulfillment of its "solemn and sacred obligation" under the Constitution. This
Court’s power of review may be awesome, but it is limited to actual cases and
controversies dealing with parties having adversely legal claims, to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. The "case-or-controversy" requirement
bans this court from deciding "abstract, hypothetical or contingent questions," 5  lest
the court give opinions in the nature of advice concerning legislative or executive
action.”(Emphasis supplied)[13]
Then, citing the classic words in Angara v. Electoral Commission:[14]
Any attempt at abstraction could only lead to dialectics and barren legal questions and
to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government.
[15]
 (Citations omitted)
In Republic of the Philippines v. Herminio Harry Roque et al.,[16] this court ruled in favor
of the petitioner and dismissed the petitions for declaratory relief filed by respondents
before the Quezon City Regional Trial Court against certain provisions of the Human
Security Act. In that case, the court discussed the necessity of the requirement of an
actual case or controversy:
Pertinently, a justiciable controversy refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory. Corollary thereto, by "ripening seeds" it is meant, not that sufficient
accrued facts may be dispensed with, but that a dispute may be tried at its inception
before it has accumulated the asperity, distemper, animosity, passion, and violence of
a full blown battle that looms ahead. The concept describes a state of facts indicating
imminent and inevitable litigation provided that the issue is not settled and stabilized by
tranquilizing declaration.

A perusal of private respondents’ petition for declaratory relief would show that they
have failed to demonstrate how they are left to sustain or are in immediate danger to
sustain some direct injury as a result of the enforcement of the assailed provisions of
RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases,
private respondents only assert general interests as citizens, and taxpayers and
infractions which the government could prospectively commit if the enforcement of the
said law would remain untrammeled. As their petition would disclose, private
respondents’ fear of prosecution was solely based on remarks of certain government
officials which were addressed to the general public. They, however, failed to show how
these remarks tended towards any prosecutorial or governmental action geared
towards the implementation of RA 9372 against them. In other words, there was no
particular, real or imminent threat to any of them.”[17] (Emphasis supplied)
Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council:
[18]

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency," where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility
is not peculiar to RA 9372 since the exercise of any power granted by law may be
abused. Allegations of abuse must be anchored on real events before courts may step
in to settle actual controversies involving rights which are legally demandable and
enforceable. (Emphasis supplied; citations omitted)[19]
None of the petitioners in this case have been charged of any offense arising from the
law being challenged for having committed any act which they have committed or are
about to commit. No private party or any agency of government has invoked any of the
statutory provisions in question against any of the petitioners. The invocations of the
various constitutional provisions cited in petitions are in the abstract. Generally,
petitioners have ardently argued possible applications of statutory provisions to be
invoked for future but theoretical state of facts.

The blanket prayer of assailing the validity of the provisions cannot be allowed without
the proper factual bases emanating from an actual case or controversy.

II

The Complexity of the Internet and the Context of the Law

This is especially so when the milieu is cyberspace.

The internet or cyberspace is a complex phenomenon. It has pervasive effects and are,
by now, ubiquitous in many communities. Its possibilities for reordering human
relationships are limited only by the state of its constantly evolving technologies and the
designs of various user interfaces. The internet contains exciting potentials as well as
pernicious dangers.

The essential framework for governance of the parts of cyberspace that have reasonable
connections with our territory and our people should find definite references in our
Constitution. However, effective governance of cyberspace requires cooperation and
harmonization with other approaches in other jurisdictions. Certainly, its scope and
continuous evolution require that we calibrate our constitutional doctrines carefully: in
concrete steps and with full and deeper understanding of incidents that involve various
parts of this phenomenon. The internet is neither just one relationship nor is it a single
technology. It is an interrelationship of many technologies and cultures.

An overview may be necessary if only to show that judicial pre-enforcement review —

or a facial evaluation of only the statute in question — may be inadvisable. Cases that
involve cyberspace are the paradigmatic examples where courts should do an
evaluation of enshrined constitutional rights only in the context of real and actual
controversies.

II (A)

A “Network of Networks”[20]

The very concept of an “internet” envisions pervasiveness. The first recorded

description of the interactions that would come to typify the internet was contained in a
series of memos in August 1962 by J.C.R. Licklider. In these memos, the pioneering head
of the computer research program at the United States Department of Defense’s
Advanced Research Projects Agency (ARPA) discussed his concept of a “Galactic
Network.”[21]

The term “internet” is an abbreviation for “inter-networking.”[22] It refers to a

“combination of networks that communicate between themselves.”[23] A “network”
pertains to the interconnection of several distinct components. To speak of an
“internet” is, therefore, to speak of the interconnection of interconnections. Thus,
“[t]he Internet today is a widespread information infrastructure.”[24] It is “at once a
world-wide broadcasting capability, a mechanism for information dissemination, and a
medium for collaboration and interaction between individuals and their computers
without regard for geographic location.”[25]

The internet grew from ARPA’s ARPANet. It took off from the revolutionary concept of
packet-switching as opposed to circuit switching. Packet switching eliminated the need
for connecting at the circuit level where individual bits of data are passed synchronously
along an end-to-end circuit between two end locations. Instead, packet switching
allowed for the partitioning of data into packets, which are then transmitted individually
and independently, even through varying and disjointed paths. The packets are then
reassembled in their destination.[26] At any given microsecond, without our jurisdiction,
complete content may be sent from any computer connected by wire or wirelessly to
the internet. At the same time, there can be small parts or packets of information
passing through other computers destined to be reassembled in a requesting computer
somewhere in this planet.

Packet switching requires that “open architecture networking” be the underlying

technical foundation of the internet. Separately designed and developed networks are
connected to each other. Each of these participating networks may have its own unique
interfaces that it offers to its users. Every user in each of these separate but
participating networks, however, remains connected to each other.[27]

This open-architecture network environment in turn requires a communications

protocol that allows a uniform way of joining different networks.[28] Developed in 1973,
this protocol eventually came to be known as the Transmission Control
Protocol/Internet Protocol (TCP/IP).[29] “The Internet Protocol (IP) sets how data is
broken down into chunks for transmission, as well as how the source and destination
addresses are specified.”[30]

To identify connected devices, each device on the internet is assigned a unique address
in the form of a “dotted quad,” otherwise known as the IP address (100.962.28.27).
These IP addresses are used to route data packets to their respective destinations.
[31]
 There are a finite number of IP addresses available. With the growth of the internet
beyond all expectations, the expansion of available IP addresses became imperative.
There is now an ongoing effort to shift from IP version 4 (IPv4) to IP version 6 (Ipv6).
From a communication protocol that allows for roughly 4.3 billion unique addresses, the
new version will allow for 2128 unique addresses. Written in ordinary decimal form, this
number is 39 digits long.[32]

TCP/IP addressed the need for connected devices to have a unique identification and
designation. But, to make these addresses accessible and readable to its human users,
“domain names” were introduced. Internet addresses are now also written as “domain
names” under what is known as the Domain Name System (DNS).”[33] The internet
address of this court is thus: sc.judiciary.gov.ph.

The allocation of unique identifiers for the internet, such as IP addresses and domain
names, is administered not by a public[34] entity but by a nonprofit public benefit
corporation based in the United States of America: the Internet Corporation for
Assigned Names and Numbers (ICANN). ICANN allocates IP addresses and “administers
the DNS through delegated authority to domain name registries.”[35] These registries
consist of databases of all domain names registered in generic top level domains (gTLD),
such as .com, .org, .gov, and country code top level domains (ccTLD), such as .ph and .sg.
[36]

II (B)

Openness and the World Wide Web

In 1989, Tim Berners-Lee of the European Organization for Nuclear Research (CERN)
developed the World Wide Web (WWW). The World Wide Web “allowed documents,
or pages, to link to other documents stored across a network.”[37] Together with
electronic mail (email), the World Wide Web has been the “driving force” of the
internet.[38] The World Wide Web provided the impetus for others to develop software
called “browsers,” which allowed the user to navigate access to content as well as to
exchange information through “web pages.” Information can be carried through
different media. Thus, text can be combined with pictures, audio, and video. These
media can likewise be “hyperlinked” or marked so that it could provide easy access to
other pages containing related information.

This new form of interface hastened the internet’s environment of openness.[39] It is this
openness and the innovation it continuously engendered that enabled the internet to
eclipse networks built around appliances connected or tethered to specific proprietary
infrastructure such as America Online and CompuServe.[40] It is this openness that
enabled the internet to become the present-day “widespread information
infrastructure”[41] or universal “network of networks.”[42]

Today, the use of the internet and its prevalence are not only inevitable facts, these are
also escalating phenomena. By the end of 2011, it was estimated that some 2.3 billion
individuals, or more than one-third of the world’s population, had access to the
internet.[43] The use of the internet is inevitably bound to increase as wireless or mobile
broadband services become more affordable and available. By 2015, the estimates are
that the extent of global internet users will rise to nearly two-thirds of the world’s
population.[44]

II (C)

The Inevitability of Use and Increasing Dependency on the Internet

Contemporary developments also challenge the nature of internet use. No longer are
we confined to a desktop computer to access information on the internet. There are
more mobile and wireless broadband subscriptions. As of 2011, the number of
networked devices[45] has exceeded the global population. By 2020, this disparity of
connected devices as opposed to connected individuals is expected to escalate to a ratio
of six to one.[46] Today, individuals may have all or a combination of a desktop, a mobile
laptop, a tablet, several smart mobile phones, a smart television, and a version of an
Xbox or a PlayStation or gaming devices that may connect to the internet. It is now
common to find homes with Wi-Fi routers having broadband connection to the internet.

This reality has increased the density of communication among individuals. A July 2011
study reported that every day, 294 billion electronic mails (emails) and 5 billion phone
messages are exchanged worldwide.[47] Another survey yielded the following:[48]

Global Philippine
s
Percentage of respondents who said they 89% 78%
access the Internet many or several times
a day
Percentage of respondents who used e- 87% 79%
mail at least once a day
Percentage of respondents who used 60% 72%
social media at least once a day
Percentage of respondents who used 43% 51%
instant messaging at least once a day

The accelerating rate of increase of internet users is relevant to developing countries

like the Philippines. Reports reveal that, as of 2011, “[i]nternet user growth was higher
in developing (16 per cent) than developed (5 per cent) countries.”[49] Thus, “[i]nternet
user penetration rates in developing countries have tripled over the past five years, and
the developing countries’ share of the world’s total number of Internet users has
increased, from 44 per cent in 2006 to 62 per cent in 2011.”[50] Consistent with this
accelerating trend, the internet-user penetration rate for developing countries stood at
24% at the end of 2011; the estimates are that this will double by 2015.[51] There are
more citizens in developing countries using the internet. The share, in internet traffic, by
developing countries, has also increased as compared with developed countries.

The attitude of users shows a marked trend towards dependence. A survey showed that
the internet is viewed by its users as playing a positive role; not only for individual lives
but also for society at large. Moreover, the internet has come to be perceived as
somewhat of an imperative. Of its many findings, the following data from the 2012
Global Internet Survey are particularly notable:[52]

Percentage Percentage
of of
respondent respondents
s who who agreed
  agreed or or agreed  
agreed strongly
strongly
(PHILIPPINES
(GLOBAL) )
The Internet does more to help 83% 91%  
society than it does to hurt it
Their lives have improved due to 85% 93%
 
using the Internet
The Internet is essential to their 89% 96%
 
knowledge and education
The Internet can play a significant
 
role in:
1. Increasing global trade and 81% 95%
  economic relationships among  
countries
2. Achieving universal primary 76% 91%
   
school education
  3. Promoting gender equality 70% 89%  
  4. Protecting the environment 74% 92%  
5. Helping to combat serious 72% 92%
   
diseases
6. Eliminating extreme poverty and 61% 75%
   
hunger
  7. Improving maternal health 65% 84%  
  8. Reducing child mortality 63% 80%  
9. Improving emergency response 77% 92%
  and assistance during natural  
disasters
10. Preventing the trafficking of 69% 84%
   
women and children
11. Improving the quality of 80% 95%
   
education
12. Improving social problems by
increasing communication
   
between and among various
groups in society 76% 93%
13. Reducing rural and remote 80% 96%
   
community isolation
14. Keeping local experts in or
bringing experts back to their
   
country because they can use
technology to create business 75% 94%

Of more pronounced legal significance are the following findings:[53]

  Percentage Percentage  
of of
respondent respondents
s who who agreed
agreed or or agreed
agreed strongly
strongly
   
    

(PHILIPPINES
(GLOBAL) )
The Internet should be
considered a basic human 83% 88%  
right
Their respective governments
have an obligation to ensure
that they have the  
80% 85%
opportunity to access the
Internet
Freedom of expression should
86% 86%  
be guaranteed on the Internet
Services such as social media
enhance their right to
 
peaceful assembly and 80% 91%
association

The relationship of internet use and growth in the economy has likewise been
established. The significance of the internet is as real as it is perceived, thus:
Research by the World Bank suggests that a 10% increase in broadband penetration
could boost GDP by 1.38% in low- and middle-income countries.”[54] More specifically, it
cited that, in the Philippines, “[m]obile broadband adoption was found to contribute an
annual 0.32% of GDP, [representing] 6.9% of all GDP growth for the economy during the
past decade.[55]
II (D)

The Dangers in the Internet

While the internet has engendered innovation and growth, it has also engendered new
types of disruption. A noted expert employs an “evolutionary metaphor” as he asserts:
[Generative technologies] encourage mutations, branchings away from the status quo—
some that are curious dead ends, others that spread like wild?re. They invite disruption
—along with the good things and bad things that can come with such disruption.[56]
Addressing the implications of disruption, he adds:
Disruption bene?ts some while others lose, and the power of the generative Internet,
available to anyone with a modicum of knowledge and a broadband connection, can be
turned to network-destroying ends. x x x [T]he Internet’s very generativity — combined
with that of the PCs attached — sows the seeds for a “digital Pearl Harbor.”[57]
The internet is an infrastructure that allows for a “network of networks.”[58] It is also a
means for several purposes. As with all other “means enhancing capabilities of human
interaction,”[59] it can be used to facilitate benefits as well as nefarious ends. The
internet can be a means for criminal activity.

Parallel to the unprecedented escalation of the use of the internet and its various
technologies is also an escalation in what has been termed as cybercrimes. As noted in
the 2010 Salvador Declaration on Comprehensive Strategies for Global Challenges,
annexed to United Nations General Assembly resolution 65/230:
[The] development of information and communications technologies and the increasing
use of the Internet create new opportunities for offenders and facilitate the growth of
crime.[60]
Also as observed elsewhere:
Over the past few years, the global cyber crime landscape has changed dramatically,
with criminals employing more sophisticated technology and greater knowledge of
cyber security. Until recently, malware, spam emails, hacking into corporate sites and
other attacks of this nature were mostly the work of computer ‘geniuses’ showcasing
their talent. These attacks, which were rarely malicious, have gradually evolved into
cyber crime syndicates siphoning off money through illegal cyber channels. By 2010,
however, politically motivated cyber crime had penetrated global cyberspace. In fact,
weaponry and command and control systems have also transitioned into the cyberspace
to deploy and execute espionage and sabotage, as seen in the example of digital
espionage attacks on computer networks at Lockheed Martin and NASA.[61]
Computer-related criminal activity is not peculiar to the 21st century.[62] One of the first
reported “major” instances of cybercrime was in 2000 when the mass-mailed “I Love
You” Worm (which originated from Pandacan, Manila)[63] “affected nearly 45 million
computer users worldwide.”[64] This entailed as much as US$ 15 billion to repair the
damage. Cyber attacks have morphed into myriad forms. The following is just a
summary of some of the known attacks:[65]

Type of
Details
Attack
Viruses Viruses and worms are computer programs that affect the storage devices of
and a computer or network, which then replicate information without the
worms knowledge of the user.
Spam Spam emails are unsolicited emails or junk newsgroup postings. Spam emails
emails are sent without the consent of the receiver — potentially creating a wide
range of problems if they are not filtered appropriately.
Trojan A Trojan is a program that appears legitimate. However, once run, it moves
on to locate password information or makes the system more vulnerable to
future entry. Or a Trojan may simply destroy programs or data on the hard
disk.
Denial-of- DoS occurs when criminals attempt to bring down or cripple individual
service websites, computers or networks, often by flooding them with messages.
(DoS)
Malware Malware is a software that takes control of any individual’s computer to
spread a bug to other people’s devices or social networking profiles. Such
software can also be used to create a ‘botnet’ — a network of computers
controlled remotely by hackers, known as ‘herders,’ — to spread spam or
viruses.
Scarewar Using fear tactics, some cyber criminals compel users to download certain
e software. While such software is usually presented as antivirus software,
after some time, these programs start attacking the user’s system. The user
then has to pay the criminals to remove such viruses.
Phishing Phishing attacks are designed to steal a person’s login and password. For
instance, the phisher can access the victims’ bank accounts or assume
control of their social network.
Fiscal By targeting official online payment channels, cyber attackers can hamper
fraud processes such as tax collection or make fraudulent claims for benefits.
State Experts believe that some government agencies may also be using cyber
cyber attacks as a new means of warfare. One such attack occurred in 2010, when a
attacks computer virus called Stuxnet was used to carry out an invisible attack on
Iran’s secret nuclear program. The virus was aimed at disabling Iran’s
uranium enrichment centrifuges.
Carders Stealing bank or credit card details is another major cyber crime. Duplicate
cards are then used to withdraw cash at ATMs or in shops.

The shift from wired to mobile devices has also brought with it the escalation of attacks
on mobile devices. As reported by IT security group McAfee, “[t]he number of pieces of
new mobile malware in 2010 increased by 46 percent compared with 2009.”[66] Hackers
have also increased targeting mobile devices using Apple’s iOS and Google’s Android
systems as these increased their market share. As McAfee put it, “cybercriminals are
keeping tabs on what’s popular.”[67]

Cybercrimes come at tremendous costs. A report notes that “[i]n the US over the course
of one year in 2009, the amount of information lost to cyber crime nearly doubled, from
US$265 million in 2008 to US$560 million x x x.”[68] In the United Kingdom, the annual
cost arising from cybercrime was estimated at GBP27 billion (US$ 43 billion). Of this
amount, intellectual property theft accounts for GBP9.2 billion (US$ 14 billion), while
espionage activities account for more than GBP7 billion (US$ 11 billion).[69] In Germany, a
joint report by the information technology trade group Bitkom and the German Federal
Criminal Police Office estimates phishing to have increased 70 percent year on year in
2010, resulting in a loss of as much as EUR 17 million (US$ 22 million).[70]

The costs in the Philippines are certainly present, but the revelation of its magnitude
awaits research that may come as a result of the implementation of the Cybercrime
Prevention Act of 2012.

Another report summarizes the costs to government as follows:[71]

1.  Costs in anticipation of cyber crime

-  Security measures, such as antiviral software installation, cost of insurance and IT

security standards maintenance.

2.  Costs as a consequence of cyber crime

-  Monetary losses to organizations, such as gaps in business continuity and losses due
to IP theft.

3.  Costs in response to cyber crime

-  Paying regulatory fines and compensations to victims of identity theft, and cost
associated with investigation of the crime.

4.  Indirect costs associated with cyber crime

-  Costs resulting from reputational damage to organizations and loss of confidence in
cyber transactions.
II (E)

The Challenges for

“Internet Governance”

All these have triggered spirited discussion on what has been termed as “internet
governance” or “internet/cyberspace regulation.”

Particularly challenging are the “jurisdictional challenges that ‘virtual’ computer

networks posed to territorially constituted nation states x x x.”[72]John Perry Barlow, for
example, proclaimed in his Declaration of the Independence of Cyberspace:
Governments of the Industrial World, you weary giants of flesh and steel, I come from
Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to
leave us alone. You are not welcome among us. You have no sovereignty where we
gather.[73]
Many have considered the internet as “ungovernable,”[74] having the ability to
“undermine traditional forms of governance,”[75] and “radically subvert[ing] a system of
rule-making based on borders between physical spaces, at least with respect to the
claim that cyberspace should naturally be governed by territorially defined rules.”[76]

Adding to the complexity of internet regulation is the private character of the internet
as manifested in: (1) the ownership and operation of internet infrastructure; and (2) the
organizational framework of the internet. This private character, in turn, gives rise to
pressing questions on legitimacy and accountability.

The United Nations Office on Drugs and Crime (UNODC) describes the private ownership
and operation of internet infrastructure as follows:
A significant proportion of internet infrastructure is owned and operated by the private
sector. Internet access requires a “passive” infrastructure layer of trenches, ducts,
optical fibre, mobile base stations, and satellite hardware. It also requires an ‘active’
infrastructure layer of electronic equipment, and a ‘service’ layer of content services
and applications.

xxxx

As an infrastructure, the internet’s growth can be compared to the development of

roads, railways, and electricity, which are dependent on private sector investment,
construction and maintenance, but regulated and incentivized by national governments.
At the same time, the internet is often regarded as more private-sector led.[77]
As to the organizational framework of the internet, a professor writes:
As far as the organizational framework of the Internet is concerned, the present
“system” is mainly designed by private bodies and organizations, i.e. a self-regulatory
system applies in reality. Thereby, the key player is the Internet Corporation for
Assigned Names and Numbers (ICANN), being in place since November 1998.[78]
There are private bodies and organizations that exist for the purpose of regulation.
There are commercial entities – vendors and service providers – that emerge as de
facto regulators. A noted expert observes that an increasing response has been the
creation of devices and services which rely on a continuing relationship with vendors
and service providers who are then accountable for ensuring security and privacy.
[79]
 There is now a marked tendency to resort to “sterile appliances tethered to a
network of control.”[80] This may stunt the very “capacity to produce unanticipated
change through unfiltered contributions from broad and varied audiences.”[81] It is these
unanticipated changes which facilitated the internet’s rise to ubiquity.

The fear is that too much reliance on commercial vendors and their standards and
technologies transfers control over the all important internet from innovation from
varied sources. In a way, it stunts democratic creativity of an important media.

On the other end, states have consciously started more legal intervention. As observed
by the United Nations Office on Drugs and Crime:
Legal measures play a key role in the prevention and combating of cybercrime. Law is [a]
dynamic tool that enables the state to respond to new societal and security challenges,
such as the appropriate balance between privacy and crime control, or the extent of
liability of corporations that provide services. In addition to national laws, at the
international level, the law of nations – international law – covers relations between
states in all their myriad forms. Provisions in both national laws and international law
are relevant to cybercrime.[82]
At the normative level, legal measures address, if not negate, apprehensions of
legitimacy, consent, and accountability. Functionally, legal measures are vital in:

1. Setting clear standards of behavior for the use of computer devices;

2. Deterring perpetrators and protecting citizens;

3. Enabling law enforcement investigations while protecting individual privacy;

4. Providing fair and effective criminal justice procedures;

5. Requiring minimum protection standards in areas such as data handling and

retention; and

6. Enabling cooperation between countries in criminal matters involving cybercrime

and electronic evidence.[83]

In performing these functions, legal measures must adapt to emerging exigencies. This
includes the emergence of a virtual, rather than physical, field of governance. It also
includes specific approaches for specific acts and specific technologies. Effective internet
governance through law cannot be approached too generally or in the abstract:
The technological developments associated with cybercrime mean that – while
traditional laws can be applied to some extent – legislation must also grapple with new
concepts and objects, not traditionally addressed by law. In many states, laws on
technical developments date back to the 19th century. These laws were, and to a great
extent, still are, focused on physical objects – around which the daily life of industrial
society revolved. For this reason, many traditional general laws do not take into account
the particularities of information and information technology that are associated with
cybercrime and crimes generating electronic evidence. These acts are largely
characterized by new intangible objects, such as data or information.
xxxx

This raises the question of whether cybercrime should be covered by general, existing
criminal law provisions, or whether new, computer-specific offences are required. The
question cannot be answered generally, but rather depends upon the nature of
individual acts, and the scope and interpretation of national laws.[84] (Emphasis
provided)
II (F)

The Lack of a Universal

Policy Consensus: Political
Nature of the Content of
Cybercrime Legislation

The description of the acts in cyberspace which relates to “new concepts and objects,
not traditionally addressed by law”[85] challenges the very concept of crimes. This is of
preeminent significance as there can be no crime where there is no law punishing an act
(nullum crimen, nulla poena sine lege).[86]

The Comprehensive Study on Cybercrime prepared by UNODC for the

Intergovernmental Expert Group on Cybercrime, February 2013, reports that a survey of
almost 200 pieces of national legislation fails to establish a clear definition of
cybercrime. If at all, domestic laws tend to evade having to use the term “cybercrime”
altogether:
Out of almost 200 items of national legislation cited by countries in response to the
Study questionnaire, fewer than five per cent used the word “cybercrime” in the title or
scope of legislative provisions. Rather, legislation more commonly referred
to “computer crimes,” “electronic communications,” “information technologies,” or
“high-tech crime.” In practice, many of these pieces of legislation created criminal
offences that are included in the concept of cybercrime, such as unauthorized access to
a computer system, or interference with a computer system or data. Where national
legislation did specifically use cybercrime in the title of an act or section (such as
“Cybercrime Act”), the definitional section of the legislation rarely included a definition
for the word “cybercrime.” When the term “cybercrime” was included as a legal
definition, a common approach was to define it simply as “the crimes referred to in this
law.”[87]
International or regional legal instruments are also important for states because they
articulate a consensus, established or emerging, among several jurisdictions. With
respect to international or legal instruments however, the United Nations Office on
Drugs and Crime notes the same lack of a conceptual consensus as to what makes
cybercrimes:
In a similar manner, very few international or regional legal instruments define
cybercrime. Neither the Council of Europe Cybercrime Convention, the League of Arab
States Convention, nor the Draft African Union Convention, for example, contains a
definition of cybercrime for the purposes of the instrument. The Commonwealth of
Independent States Agreement, without using the term “cybercrime,” defines an
“offence relating to computer information” as a “criminal act of which the target is
computer information.” Similarly, the Shanghai Cooperation Organization Agreement
defines “information offences” as “the use of information resources and (or) the impact
on them in the informational sphere for illegal purposes.” [88]
More than defining the term “cybercrime,” international legal instruments list acts
which may be considered as falling under the broad umbrella of cybercrimes. As
surveyed in 'The Comprehensive Study on Cybercrime prepared by UNODC for the
Intergovernmental Expert Group on Cybercrime, February 2013,' there are sixteen (16)
international or regional instruments which exist with the objective of countering
cybercrime. The UNODC notes that nine (9) of these instruments are binding,[89] while
seven (7) are non-binding.[90] In all, these instruments include a total of eighty-two (82)
countries which have signed and/or ratified them. Of these, it is the Council of Europe
Cybercrime Convention which has the widest coverage: Forty-eight (48) countries,
[91]
 including five (5) non-member states of the Council of Europe, have ratified and/or
acceded to it. Other instruments have significantly smaller scopes. For example, the
League of Arab States Convention only included eighteen (18) countries or territories;
the Commonwealth of Independent States Agreement, with ten (10) countries; and the
Shanghai Cooperation Organization Agreement, with six (6) countries.[92]

Surveying these sixteen (16) instruments, the United Nations Office on Drugs and Crime
summarizes acts of cybercrimes vis-a-vis the instruments (and specific provisions of such
instruments) covering each act as follows:

Criminalized Act
  African Union[93]
  COMESA[94]
  The Commonwealth[95]
  Commonwealth of Independent States[96]
Council of Europe
 
(Budapest Convention)[97]
Council of Europe
 
(Lanzarote Convention)[98]
  ECOWAS[99]
European Union
 
(Framework Decision 2005/222/JHA)[100]
European Union
 
(Directive Proposal 2010/0273)[101]
European Union      
 
(Directive Framewrok Decision 2001/413/JHA)[102]
European Union 
 
(Directive 2011/92/EU and 2002/58/EC)[103]
ITU / CARICOM / CTU   
 
(Model Legislative Texts[104]
League of Arab States
 
(Convention)[105]
League of Arab States
 
(Model Law)[106]
  Shanghai Cooperation Organization[107]
United Nations
 
(CRC OP)[108]
1 Illegal access Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
to a 18 5 2 2 2(1 3 4 6 3,
computer       and and and ) and 5,
system III 19 7 3 5 15
(15) and
22
   
III
(16)
2 Illegal access, Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
interception III 19 5 3 2 6 6 6 6, 7 3
or acquisition (23) and and (1) and and and and
of computer 21 8 (a) 3 8 18 8
data
3 Illegal Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
intereference III 20 6 3 4 5 4 5 3 7 8 6
with (19) and (1) and
computer , 22(a (c) 7
data (20) )
and
(24)
4 Illegal Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
intereference III 22 7 3 5 4 3 4 3 9 6 7
with a (18) (a) (1)
computer and (c)
system (19)
5 Computer Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.
misuse tools III 22 9 3 6 12 5 7 4 10 9
(22) (b) (1)
and (b)
(c)
6 Breach of Art. Art. Art. Art.
privacy or III 3 11 15
data (27) (a)
protection and (1)
measures (54)
7 Computer- Art. Art. Art. Art. Art. Art. Art. Art.
related III 23 7 8 2 11 10 4
forgery (24) and and
and 4 18
(25)
8 Computer- Art. Art. Art. Art. Art. Art. Art. Art.
related fraud III 24 8 9, 2 12 11 10,
(25) (a) 10 and 11
, and and 4 and
(26) (b) 23 12
and
 (41)
9 Electronic Art. Art. Art.
payment 2 18 11
tools offenses
10 Identity- Art.
related crime 14
11 Computer- Art. Art. Art. Art.
related 3 10 17 14
copyright and (1)
trademark (d)
offenses
12 Spam Art. Art. Art.
19 13 15
(g) (3)
13 Computer- Art. Art. Art. Art.
related III 25 18 9
harassment, (40)
extortion or and
acts causing (41)
personal
harm
14 Computer- Art. Art. Art.
related acts III 3, 18,
involving (34) 4, 5 19
racism or , (OP and
xenophobia (35) ) 20
and
(36)
15 Computer- Art. Art. Art.
related denial III 6 21
or (37) (OP
justification )
of genocide
or crimes
against
humanity
16 Computer- Art. Art. Art. Art. Art, Art. Art. Art. Art.
related III 10 9 20 14, 5 13 12 3
production, (29) 15,
distribution, , 16
or possession (30) and
of child , 17
pornography (31)
and
(32)
17 Computer- Art. Art.
related 23 6
solicitation or
 ‘grooming’ of
children
18 Computer- Art. Art. Art. Art.
related acts III 18, 15 21
in support of (40) 19,
terrorism 20
and
22
(a)
19 Computer- Art. Art.
related 15 19
offenses
involving
money
laundering
20 Computer- Art. Art.
related 16 17
offenses and
involving 18
illicit
trafficking
21 Computer- Art. Art. Art.
related 14, 12, 13,
offenses 15, 13, 16
against public 16 14 and
order, and and 20
morality or 17 15
security
22 Law Art. Art. Art. Art. Art.
enforcement III 13 16 16 23
investigation- (54) and (3), and (3),
related 21 20 17 28
offenses (3) (3)
and and
21 29
(3) (3)
23 Aggravating Art. Art. Art.
circumstance III 22 21
s for (40)
conventional
crime
committed by
means of a
computer
system
24 Attempt and Art. Art. Art. Art.
aiding or 26 11 24 8
abetting and
7
 (OP
)
25 Corporate Art Art. Art.
liability 27 12 26

Informed by the various approaches and challenges to defining cybercrime, 'The

Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental
Expert Group on Cybercrime, February 2013' suggests that “cybercrime” is “best
considered as a collection of acts or conduct.”[109] Thus, in a manner consistent with the
approach adopted by international instruments such as the United Nations Convention
Against Corruption,[110] it “identifies a list, or ‘basket’, of acts which could constitute
cybercrime.”[111] The list, however, is tentative and not exhaustive, provided “with a view
to establishing a basis for analysis,”[112] rather than to “represent legal
definitions.”[113] These acts are “organized in three broad categories”,[114] as follows:

1. Acts against the confidentiality, integrity and availability of computer data or

systems

a. Illegal access to a computer system

b. Illegal access, interception or acquisition of computer data

c. Illegal interference with a computer system or computer data

d. Production, distribution or possession of computer misuse tools

e. Breach of privacy or data protection measures

2. Computer-related acts for personal or financial gain or harm

a. Computer-related fraud or forgery

b. Computer-related identity offences

c. Computer-related copyright or trademark offences

d. Sending or controlling sending of Spam

e. Computer-related acts causing personal harm

f. Computer-related solicitation or 'grooming' of children

3. Computer content-related acts

 a. Computer-related acts involving hate speech

b. Computer-related production, distribution or possession of child

pornography

c. Computer-related acts in support of terrorism offences[115]

Apart from the conceptual and definitional mooring of cybercrimes, equally significant
are the “procedural powers including search, seizure, orders for computer data, real-
time collection of computer data, and preservation of data x x x.”[116] As noted by the
United Nations Office on Drugs and Crime, these procedural powers, along with the
criminalization of certain acts and obligations for international cooperation, form the
“core provisions” shared by international and legal instruments.[117]

The United Nations Office on Drugs and Crime’s survey of key international and regional
instruments summarizes each instrument’s provision of procedural powers as follows:

Procedural Power
  African Union[118]
  COMESA[119]
  The Commonwealth[120]
  Commonwealth of Independent States[121]
  Council of Europe
  (Budapest Convention)[122]
  Council of Europe
  (Lanzarote Convention)[123]
  ECOWAS[124]
European Union
 
(Framework Decision 2005/222/JHA)[125]
European Union
 
(Directive Proposal 2010/0273)[126]
European Union
 
(Directive Framewrok Decision 2001/413/JHA)[127]
European Union
 
(Directive 2011/92/EU and 2002/58/EC)[128]
ITU / CARICOM / CTU
 
(Model Legislative Texts[129]
League of Arab States
 
(Convention)[130]
League of Arab States
 
(Model Law)[131]
  Shanghai Cooperation Organization[132]
United Nations
 
(CRC OP)[133]

1 Search for Art. Art. Art.   Art.   Art.         Art. Art.      

computer III 37 12 19 33 20 26
 hardware or (50 (a) (1)
data ) and and
(b) (2)
2 Seizure of Art. Art. Art.   Art.   Art.         Art. Art.      
computer III 37 12 19 33 20 27
hardware or (51 (c) and (3) (1)
data ) 14
3 Order for   Art. Art.   Art.             Art. Art.      
stored 36 15 18 22 25
computer (a) (1) (a) (1)
date (1)
4 Order for   Art.     Art.             Art. Art.      
subscriber 36 18 22 25
information (b) (1) (b) (2)
(b)
5 Order for   Art. Art.   Art.             Art. Art.      
stored 34 16 17 24 24
traffic data (a) (1)
(ii) (b)
6 Real-time   Art. Art.   At.             Art. Art.      
collection of 38 19 20 25 28
traffic data
7 Real-time Art. Art. Art.   Art.             Art. Art.      
collection of III 39 18 21 26 29
content- (55
data )
8 Expedited Art. Art. Art.   Art.   Art.         Art. Art.      
preservatio III 33, 17 16, 33 23 23
n of (53 34 17 (2)
computer- ) (a) (1)
data (i) (a)
and
35
9 Use of           Art.         Art. Art.        
(remote) 30 15 27
forensic (5)
tools
10 Trans-   Art.     Art.               Art.      
border 49 32 40
access to (b) (b) (2)
computer
data
11 Provision of   Art. Art.   Art.             Art. Art.      
assistance 37 13 19 21 27
(d) (4) (2)
12 Retention of   Art.               Art.            
computer 29, 3
data 30 and
 and 6
31

In the Philippines, Republic Act No. 10175 adopts an approach which is similar to the
UNODC’s appreciation of cybercrimes as a “collection of acts or conduct.” We have thus
transplanted some of the provisions that are still part of an emerging consensus. Thus,
the Cybercrime Prevention Act of 2012 in question provides for the following “basket”
of punishable acts:

CHAPTER II

PUNISHABLE ACTS
SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(1)  Illegal Access. – The access to the whole or any part of a computer system without
right.

(2)  Illegal Interception. – The interception made by technical means without right of any
non-public transmission of computer data to, from, or within a computer system
including electromagnetic emissions from a computer system carrying such computer
data.

(3)  Data Interference. — The intentional or reckless alteration, damaging, deletion or

deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.

(4)  System Interference. — The intentional alteration or reckless hindering or

interference with the functioning of a computer or computer network by inputting,
transmitting, damaging, deleting, deteriorating, altering or suppressing computer data
or program, electronic document, or electronic data message, without right or
authority, including the introduction or transmission of viruses.

(5)  Misuse of Devices.

(i) The use, production, sale, procurement, importation, distribution, or otherwise

making available, without right, of:

(aa) A device, including a computer program, designed or adapted primarily for the
purpose of committing any of the offenses under this Act; or

(bb) A computer password, access code, or similar data by which the whole or any part
of a computer system is capable of being accessed with intent that it be used for the
purpose of committing any of the offenses under this Act.

(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent
to use said devices for the purpose of committing any of the offenses under this section.

(6)  Cyber-squatting. – The acquisition of a domain name over the internet in bad faith
to profit, mislead, destroy reputation, and deprive others from registering the same, if
such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration:

(ii) Identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

(b)  Computer-related Offenses:

(1)  Computer-related Forgery. —

(i) The input, alteration, or deletion of any computer data without right resulting in
inauthentic data with the intent that it be considered or acted upon for legal purposes
as if it were authentic, regardless whether or not the data is directly readable and
intelligible; or

(ii) The act of knowingly using computer data which is the product of computer-related
forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest
design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of

computer data or program or interference in the functioning of a computer system,
causing damage thereby with fraudulent intent: Provided, That if no damage has yet
been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer,
possession, alteration or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided, That if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.

(c) Content-related Offenses:

(1)  Cybersex. — The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.

(2)  Child Pornography. — The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.

(3)  Unsolicited Commercial Communications. — The transmission of commercial

electronic communication with the use of computer system which seek to advertise,
sell, or offer for sale products and services are prohibited unless:

(i)   There is prior affirmative consent from the recipient; or

(ii)  The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii)   The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;

(bb) The commercial electronic communication does not purposely disguise the source
of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

(4)  Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets
or aids in the commission of any of the offenses enumerated in this Act shall be held
liable.

(b)  Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.
II (G)

No Actual Controversy

The overview of the internet and the context of cyberspace regulation should readily
highlight the dangers of proceeding to rule on the constitutional challenges presented
by these consolidated petitions barren of actual controversies. The platforms and
technologies that move through an ever expanding network of networks are varied. The
activities of its users, administrators, commercial vendors, and governments are also as
complex as they are varied.

The internet continues to grow. End User License Agreements (EULA) of various
applications may change its terms based on the feedback of its users. Technology may
progress to ensure that some of the fears that amount to a violation of a constitutional
right or privilege will be addressed. Possibly, the violations, with new technologies, may
become more intrusive and malignant than jurisprudential cures that we can only
imagine at present.

All these point to various reasons for judicial restraint as a natural component of
judicial review when there is no actual case. The court’s power is extraordinary and
residual. That is, it should be invoked only when private actors or other public
instrumentalities fail to comply with the law or the provisions of the Constitution. Our
faith in deliberative democracy requires that we presume that political forums are as
competent to read the Constitution as this court.

Also, the court’s competence to deal with these issues needs to evolve as we
understand the context and detail of each technology implicated in acts that are
alleged to violate law or the Constitution. The internet is an environment, a
phenomenon, a network of complex relationships and, thus, a subject that cannot be
fully grasped at first instance. This is where adversarial positions with concrete
contending claims of rights violated or duties not exercised will become important.
Without the benefit of these adversarial presentations, the implications and
consequences of judicial pronouncements cannot be fully evaluated.

Finally, judicial economy and adjudicative pragmatism requires that we stay our hand
when the facts are not clear. Our pronouncements may not be enough or may be too
detailed. Parties might be required to adjudicate again. Without an actual case, our
pronouncements may also be irrelevant to the technologies and relationships that
really exist. This will tend to undermine our own credibility as an institution.

We are possessed with none of the facts. We have no context of the assertion of any
right or the failure of any duty contained in the Constitution. To borrow a meme that
has now become popular in virtual environments: We cannot be asked to doubt the
application of provisions of law with most of the facts in the cloud.

III

Limited Exception: Overbreadth Doctrine

There is, however, a limited instance where facial review of a statute is not only allowed
but essential: when the provision in question is so broad that there is a clear and
imminent threat that actually operates or it can be used as a prior restraint of speech.
This is when there can be an invalidation of the statute “on its face” rather than “as
applied.”

The use of the doctrine gained attention in this jurisdiction within a separate opinion by
Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources,[134] thus:
The only instance where a facial challenge to a statute is allowed is when it operates
in the area of freedom of expression. In such instance, the overbreadth doctrine
permits a party to challenge the validity of a statute even though as applied to him it is
not unconstitutional but it might be if applied to others not before the Court whose
activities are constitutionally protected. Invalidation of the statute “on its face” rather
than “as applied” is permitted in the interest of preventing a “chilling” effect on
freedom of expression. But in other cases, even if it is found that a provision of a statute
is unconstitutional, courts will decree only partial invalidity unless the invalid portion is
so far inseparable from the rest of the statute that a declaration of partial invalidity is
not possible.[135] (Emphasis supplied)
The doctrine was again revisited in the celebrated plunder case of former President
Joseph Estrada, when Justice Mendoza, in his concurring opinion, explained at length
when a facial challenge may be allowed:
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible “chilling effect” upon protected speech. The theory is
that “[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.” The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area
of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized
an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”
In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words” and, again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to
protected conduct.” For this reason, it has been held that “a facial challenge to a
legislative Act is … the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would
be valid.” As for the vagueness doctrine, it is said that a litigant may challenge a statute
on its face only if it is vague in all its possible applications. “A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.”

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing “on their faces” statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the established rule is that
“one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons
or other situations in which its application might be unconstitutional.” As has been
pointed out, “vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter
of due process typically are invalidated [only] ‘as applied’ to a particular
defendant.”Consequently, there is no basis for petitioner’s claim that this Court review
the Anti-Plunder Law on its face and in its entirety.[136]
The overbreadth doctrine in the context of a facial challenge was refined further
in David v. Arroyo,[137] where this court speaking through Justice Sandoval-Gutierrez
disallowed petitioners from challenging Proclamation No. 1017 on its face for being
overbroad. In doing so, it laid down the guidelines for when a facial challenge may be
properly brought before this court, thus:
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
“on their faces” statutes in free speech cases, also known under the American Law as
First Amendment cases.

xxxx

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
“reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.” x x x

xxxx

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only “spoken words” and again, that “overbreadth claims,
if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct.” Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be

used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for
this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied unconstitutionally to
others, i.e., in other situations not before the Court. A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute “on its
face,” not merely “as applied for” so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the “chilling;”
deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s “very existence may cause others
not before the court to refrain from constitutionally protected speech or expression.”
An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris, it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.[138] (Emphasis originally provided)
The Mendoza opinion, however, found its way back into the legal spectrum when it was
eventually adopted by this court in the cases of Romualdez v.
Sandiganbayan[139] and Romualdez v. Commission on Elections.[140] Upon motion for
reconsideration in Romualdez v. Commission on Elections,[141] however, this court revised
its earlier pronouncement that a facial challenge only applies to free speech cases,
thereby expanding its scope and usage. It stated that:
x x x The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge.[142]
However, the latest pronouncement of this court on the doctrine was the case
of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council.[143] In it,
this court, while reiterating Justice Mendoza’s opinion as cited in the Romualdez cases,
explained further the difference between a “facial” challenge and an “as applied”
challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the “chilling effect” on protected speech, the exercise of which should not at all times
be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts formerly considered innocent and
lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.

The Court reiterated that there are “critical limitations by which a criminal statute may
be challenged” and “underscored that an ‘on-its-face’ invalidation of penal statutes x x x
may not be allowed.”

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the State’s
ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding that
the law is clear as applied to him.

It is settled, on the other hand, that the application of the overbreadth doctrine is

limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the
litigants.

xxxx

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment, and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are
justified by the “transcendent value to all society of constitutionally protected
expression.”[144] (Emphasis and underscoring originally supplied)
III (A)
 Test for Allowable Facial Review

In my view, the prevailing doctrine now is that a facial challenge only applies to cases
where the free speech and its cognates are asserted before the court. While as a
general rule penal statutes cannot be subjected to facial attacks, a provision in a
statute can be struck down as unconstitutional when there is a clear showing that
there is an imminent possibility that its broad language will allow ordinary law
enforcement to cause prior restraints of speech and the value of that speech is such
that its absence will be socially irreparable.

This, therefore, requires the following:

First, the ground for the challenge of the provision in the statute is that it violates
freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an interpretation
that will allow prior restraints;

Fourth, the “chilling effect” is not simply because the provision is found in a penal
statute but because there can be a clear showing that there are special circumstances
which show the imminence that the provision will be invoked by law enforcers;

Fifth, the application of the provision in question will entail prior restraints; and

Sixth, the value of the speech that will be restrained is such that its absence will be
socially irreparable. This will necessarily mean balancing between the state interests
protected by the regulation and the value of the speech excluded from society.

III (B)

Reason for the Doctrine

The reason for this exception can be easily discerned.

The right to free speech and freedom of expression take paramount consideration
among all the rights of the sovereign people. In Philippine Blooming Mills Employment
Organization et al. v. Philippine Blooming Mills, Co. Inc.,[145] this court discussed this
hierarchy at length:
(1) In a democracy, the preservation and enhancement of the dignity and worth of the
human personality is the central core as well as the cardinal article of faith of our
civilization. The inviolable character of man as an individual must be "protected to the
largest possible extent in his thoughts and in his beliefs as the citadel of his person."

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security
"against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, and the scorn and derision of those who have no patience with
general principles."
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to
withdraw "certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials, and to establish them as legal principles to
be applied by the courts. One's rights to life, liberty and property, to free speech, or free
press, freedom of worship and assembly, and other fundamental rights may not be
submitted to a vote; they depend on the outcome of no elections." Laski proclaimed
that "the happiness of the individual, not the well-being of the State, was the criterion
by which its behaviour was to be judged. His interests, not its power, set the limits to
the authority it was entitled to exercise."

(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the
ideas we cherish; or as Socrates insinuated, not only to protect the minority who want
to talk, but also to benefit the majority who refuse to listen. And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one
are not safe unless the liberties of all are protected.

(4) The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment. Thru these freedoms the citizens can participate not
merely in the periodic establishment of the government through their suffrage but also
in the administration of public affairs as well as in the discipline of abusive public
officers. The citizen is accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights
over property rights is recognized. Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of sanctions
may deter their exercise almost as potently as the actual application of sanctions," they
"need breathing space to survive," permitting government regulation only "with narrow
specificity."

Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the influential and
powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."

The superiority of these freedoms over property rights is underscored by the fact that a
mere reasonable or rational relation between the means employed by the law and its
object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive
— would suffice to validate a law which restricts or impairs property rights. On the other
hand, a constitutional or valid infringement of human rights requires a more stringent
criterion, namely existence of a grave and immediate danger of a substantive evil which
the State has the right to prevent.[146] (Citations omitted)
The right to freedom of expression is a primordial right because it is not only an
affirmation but a positive execution of the basic nature of the state defined in Article II,
Section 1 of the 1987 Constitution:
The Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them.
The power of the State is derived from the authority and mandate given to it by the
people, through their representatives elected in the legislative and executive branches
of government. The sovereignty of the Filipino people is dependent on their ability to
freely express themselves without fear of undue reprisal by the government.
Government, too, is shaped by comments and criticisms of the various publics that it
serves.

The ability to express and communicate also defines individual and collective
autonomies. That is, we shape and refine our identity and, therefore, also our thoughts
as well as our viewpoints through interaction with others. We choose the modes of our
expression that will also affect the way that others receive our ideas. Thoughts
remembered when expressed with witty eloquence are imbibed through art. Ideas,
however, can be rejected with a passion when expressed through uncouth caustic
verbal remarks or presented with tasteless memes. In any of these instances, those who
receive the message see the speaker in a particular way, perhaps even belonging to a
category or culture.

Furthermore, what we learn from others bears on what we think as well as what and
how we express. For the quality of our own expression, it is as important to tolerate the
expression of others.

This fundamental and primordial freedom has its important inherent and utilitarian
justifications. With the imminent possibility of prior restraints, the protection must be
extraordinarily vigilant.

In Chavez v. Gonzales,[147] the court elaborated further on the primacy of the right to

freedom of speech:
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. When atrophied, the right becomes meaningless. The right belongs as
well – if not more – to those who question, who do not conform, who differ. 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.” To paraphrase Justice Holmes, it is freedom for the thought that we
hate, no less than for the thought that agrees with us.
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, 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. (Citations
omitted) [148]
III (C)

Overbreadth versus Vagueness

A facial challenge, however, can only be raised on the basis of overbreadth, not
vagueness. Vagueness relates to a violation of the rights of due process. A facial
challenge, on the other hand, can only be raised on the basis of overbreadth, which
affects freedom of expression.

Southern Hemisphere provided the necessary distinction:

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control
or prevent activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain from
that behavior, even though some of it is protected.[149]
The facial challenge is different from an “as-applied” challenge or determination of a
penal law. In an “as-applied” challenge, the court undertakes judicial review of the
constitutionality of legislation “as applied” to particular facts, parties or defendants and
on a case-to-case basis. In a challenge “as applied,” the violation also involves an
abridgement of the due process clause. In such instances, the burden of the petitioner
must be to show that the only reasonable interpretation is one that is arbitrary or
unfair.
 III (D)

“Chilling Effect”

In the petitions before this court, the facial challenge can be used but only insofar as
those provisions that are so broad as to ordinarily produce a “chilling effect” on speech.

We have transplanted and adopted the doctrine relating to “chilling effects” from the
jurisprudence of the United States Supreme Court. The evolution of their doctrine,
therefore, should be advisory but not binding for this court.

The concept of a “chilling effect” was first introduced in the case of Wieman v.
Updegraff.[150] In that case, the United States Supreme Court declared as
unconstitutional Oklahoma state legislature which authorized the docking of salaries of
employees within the state who failed to render a “loyalty oath” disavowing
membership in communist organizations. The validity of the Oklahama state legislature
included teachers in public schools who alleged violations of the Due Process Clause. In
his concurring opinion, Justice Frankfurter first introduced the concept of a “chilling
effect,” stating:
By limiting the power of the States to interfere with freedom of speech and freedom of
inquiry and freedom of association, the Fourteenth Amendment protects all persons, no
matter what their calling. But, in view of the nature of the teacher's relation to the
effective exercise of the rights which are safeguarded by the Bill of Rights and by
the Fourteenth Amendment, inhibition of freedom of thought, and of action upon
thought, in the case of teachers brings the safeguards of those amendments vividly into
operation. Such unwarranted inhibition upon the free spirit of teachers affects not only
those who, like the appellants, are immediately before the Court. It has an unmistakable
tendency to chill that free play of the spirit which all teachers ought especially to
cultivate and practice; it makes for caution and timidity in their associations by potential
teachers.[151]
The concept of a “chilling effect” was further elaborated in the landmark case of New
York Times v. Sullivan:[152]
We should be particularly careful, therefore, adequately to protect the liberties which
are embodied in the First and Fourteenth Amendments. It may be urged that
deliberately and maliciously false statements have no conceivable value as free speech.
That argument, however, is not responsive to the real issue presented by this case,
which is whether that freedom of speech which all agree is constitutionally protected
can be effectively safeguarded by a rule allowing the imposition of liability upon a jury's
evaluation of the speaker's state of mind. If individual citizens may be held liable in
damages for strong words, which a jury finds false and maliciously motivated, there can
be little doubt that public debate and advocacy will be constrained. And if newspapers,
publishing advertisements dealing with public issues, thereby risk liability, there can also
be little doubt that the ability of minority groups to secure publication of their views on
public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers
Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 530. The opinion of the Court
conclusively demonstrates the chilling effect of the Alabama libel laws on First
Amendment freedoms in the area of race relations. The American Colonists were not
willing, nor should we be, to take the risk that "[m]en who injure and oppress the
people under their administration [and] provoke them to cry out and complain" will also
be empowered to "make that very complaint the foundation for new oppressions and
prosecutions." The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721-722 (1735)
(argument of counsel to the jury). To impose liability for critical, albeit erroneous or
even malicious, comments on official conduct would effectively resurrect "the obsolete
doctrine that the governed must not criticize their governors." Cf. Sweeney v. Patterson,
76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458.[153]
In National Association for the Advancement of Colored People v. Button,[154] the United
States Supreme Court categorically qualified the concept of a “chilling effect”:
Our concern is with the impact of enforcement of Chapter 33 upon First Amendment
freedoms.

xxxx

For, in appraising a statute's inhibitory effect upon such rights, this Court has not
hesitated to take into account possible applications of the statute in other factual
contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98; Winters
v. New York, supra,at 333 U. S. 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It
makes no difference that the instant case was not a criminal prosecution, and not based
on a refusal to comply with a licensing requirement. The objectionable quality of
vagueness and overbreadth does not depend upon absence of fair notice to a
criminally accused or upon unchanneled delegation of legislative powers, but upon
the danger of tolerating, in the area of First Amendment freedoms, the existence of a
penal statute susceptible of sweeping and improper application. Marcus v. Search
Warrant, 367 U. S. 717, 367 U. S. 733. These freedoms are delicate and vulnerable, as
well as supremely precious in our society. The threat of sanctions may deter their
exercise almost as potently as the actual application of sanctions. Cf. Smith v.
California, supra, at 361 U. S. 151-154; Speiser v. Randall, 357 U. S. 513, 357 U. S. 526.
Because First Amendment freedoms need breathing space to survive, government may
regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296,
3 310 U. S. 11. (Emphasis supplied)[155]
Philippine jurisprudence has incorporated the concept of a “chilling effect,” but the
definition has remained abstract. In Chavez v. Gonzales,[156] this court stated that a
“chilling effect” took place upon the issuance of a press release by the National
Telecommunications Commission warning radio and television broadcasters from using
taped conversations involving former President Gloria Macapagal-Arroyo and the
allegations of fixing elections:
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 person’s 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.
[157]

Taking all these into consideration, as mentioned earlier, a facial attack of a provision
can only succeed when the basis is freedom of expression, when there is a clear
showing that there is an imminent possibility that its broad language will allow
ordinary law enforcement to cause prior restraints of speech, and when the value of
that speech is such that its absence will be socially irreparable.
Among all the provisions challenged in these consolidated petitions, there are only four
instances when the “chilling effect” on speech can be palpable: (a) the “take down”
provision; (b) the provision on cyber libel; (c) the provision on cybersex; and (d) the
clause relating to unbridled surveillance of traffic data. The provisions that provide for
higher penalties for these as well as for dual prosecutions should likewise be declared
unconstitutional because they magnify the “chilling effect” that stifles protected
expression.

For this reason alone, these provisions and clauses are unconstitutional.

IV

The “Take Down” Clause

Section 19 of Republic Act No. 10175 is unconstitutional because it clearly allows prior
restraint. This section provides:
SEC. 19. Restricting or Blocking Access to Computer Data — When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.
Among all the provisions, this is the sole provision that the Office of the Solicitor General
agrees to be declared as unconstitutional.

IV (A)

A Paradigmatic Example of Prior Restraint

There is no doubt of the “chilling effect” of Section 19 of Republic Act No. 10175. It is
indeed an example of an instance when law enforcers are clearly invited to do prior
restraints within vague parameters. It is blatantlyunconstitutional.

Chavez v. Gonzales presents a clear and concise summary of the doctrines governing

prior restraint:
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive, legislative
or judicial branch of the government. Thus, it precludes governmental acts that required
approval of a proposal to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or official that requires some form
of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts.

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, and "any act
that restrains speech is hobbled by the presumption of invalidity and should be greeted
with furrowed brows," 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.
As worded, Section 19 provides an arbitrary standard by which the Department of
Justice may exercise this power to restrict or block access. A prima facie finding is sui
generis and cannot be accepted as basis to stop speech even before it is made. It does
not provide for judicially determinable parameters. It, thus, ensures that all computer
data will automatically be subject to the control and power of the Department of
Justice. This provision is a looming threat that hampers the possibility of free speech and
expression through the internet. The sheer possibility that the State has the ability to
unilaterally decide whether data, ideas or thoughts constitute evidence of a prima
facie commission of a cybercrime will limit the free exchange of ideas, criticism, and
communication that is the bulwark of a free democracy.

There is no question that Section 19 is, thus, unconstitutional.

Cyber Libel

Also unconstitutional is Section 4(c)(4) which reads:

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

(c) Content-related Offenses:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
The intent of this provision seems to be to prohibit the defense that libel committed
through the use of a computer is not punishable. Respondents counter that, to date,
libel has not been declared unconstitutional as a violation of the rights to free speech,
freedom of expression, and of the press.

Reference to Article 355 of the Revised Penal Code in Section 4(c)(4) resulted in the
implied incorporation of Articles 353 and 354 as well. Articles 353 to 355 of the Revised
Penal Code provide:
Title Thirteen

CRIMES AGAINST HONOR

Chapter One

LIBEL

Section One. — Definitions, forms, and punishment of this crime.

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of
a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be

malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1. A private communication made by any person to another in the performance of any

legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The ponencia claims that “libel is not a constitutionally protected speech” and “that
government has an obligation to protect private individuals from defamation.”[158]

I strongly dissent from the first statement. Libel is a label that is often used to stifle
protected speech. I agree with the second statement but only to the extent that
defamation can be protected with civil rather than criminal liabilities.

Given the statutory text, the history of the concept of criminal libel and our court’s
experience with libel, I am of the view that its continued criminalization especially in
platforms using the internet unqualifiedly produces a “chilling effect” that stifles our
fundamental guarantees of free expression. Criminalizing libel contradicts our notions
of a genuinely democratic society.

V (B)

As Currently Worded, Libel is Unconstitutional

The crime of libel in its 1930 version in the Revised Penal Code was again reenacted
through the Cybercrime Prevention Act of 2012. It simply added the use of the internet
as one of the means to commit the criminal acts. The reenactment of these archaic
provisions is unconstitutional for many reasons. At minimum, it failed to take into
consideration refinements in the interpretation of the old law through decades of
jurisprudence. It now stands starkly in contrast with the required constitutional
protection of freedom of expression.

The ponencia fails to account for the evolution of the requirement of malice in
situations involving public officers and public figures. At best, the majority will have us
believe that jurisprudence can be read into the current text of the libel law as referred
to in the Cybercrime Prevention Act of 2012.
However, this does not appear to be the intent of the legislature based on the text of
the provision. Congress reenacted the provisions defining and characterizing the crime
of libel as it was worded in 1930. I concur with Justice Carpio’s observations that the law
as crafted fails to distinguish the malice requirement for criticisms of public officers (and
public figures) on the one hand and that for ordinary defamation of private citizens
carefully crafted by jurisprudence. Understandably, it creates doubt on the part of those
who may be subject to its provisions. The vagueness of the current text, reenacted by
reference by Rep. Act No. 10175 is as plain as day.

It is difficult to accept the majority’s view that present jurisprudence is read into the
present version of the law. This is troubling as it is perplexing. The majority of the 200
plus members of the House of Representatives and the 24 Senators chose the old text
defining the crime of libel. The old text does not conform to the delicate balance carved
out by jurisprudence. Just the sheer number of distinguished and learned lawyers in
both chambers would rule out oversight or negligence. As representatives of our
people, they would have wanted the crime to be clearly and plainly spelled out so that
the public will be properly informed. They could not have wanted the ordinary Filipino
to consult the volumes of Philippine Reports in order to find out that the text did not
mean plainly what it contained before they exercised their right to express.

It is, thus, reasonable to presume that Congress insists on the plain meaning of the old
text. Possibly, through inaction, they would replace jurisprudential interpretation of the
freedom of expression clause in relation to defamation by reenacting the same 1930
provisions.

V (C)

Negating the Balance Struck

Through Jurisprudence

A survey of these constant efforts in jurisprudence to qualify libel as provided in the old
statute is needed to understand this point.

United States v. Bustos[159] interpreted the requirement of malice for libel under Act No.
277.[160] This court ruled that “malice in fact” is required to sustain a conviction under
the law when there are “justifiable motives present” in a case. Thus:
In an action for libel suppose the defendant fails to prove that the injurious publication
or communication was true. Can he relieve himself from liability by showing that it was
published with "justifiable motives" whether such publication was true or false or even
malicious? There is no malice in law when "justifiable motives" exist, and, in the
absence of malice, there is no libel under the law. (U. S. vs. Lerma, supra.) But if there
is malice in fact, justifiable motives can not exist. The law will not allow one person to
injure another by an injurious publication, under the cloak of "good ends" or "justifiable
motives," when, as a matter of fact, the publication was made with a malicious intent. It
is then a malicious defamation. The law punishes a malicious defamation and it was
not intended to permit one to maliciously injure another under the garb of "justifiable
motives." When malice in fact is shown to exist the publisher can not be relieved from
liability by a pretense of "justifiable motives." Section 3 relieves the plaintiff from the
necessity of proving malice simply when no justifiable motives are shown, but it does
not relieve the defendant from liability under the guise of "justifiable motives" when
malice actually is proved. The defense of "the truth" of the "injurious publication" (sec.
4) and its character as a privileged communication (sec. 9) means nothing more than the
truth in one instance and the occasion of making it in the other together with proof of
justifiable motive, rebuts the prima facie inference of malice in law and throws upon the
plaintiff or the State, the onus of proving malice in fact. The publication of a malicious
defamation, whether it be true or not, is clearly an offense under Act No. 277.
[161]
 (Emphasis supplied)
Actual malice as a requirement evolved further.

It was in the American case of New York Times Co. v. Sullivan,[162] which this court
adopted later on,[163] that the “actual malice”[164] requirement was expounded and
categorically required for cases of libel involving public officers. In resolving the issue of
“whether x x x an action brought by a public official against critics of his official conduct,
abridges the freedom of speech and of the press that is guaranteed by the First and
Fourteenth Amendments”,[165] the New York Times case required that actual malice
should be proven when a case for defamation “includes matters of public concern,
public men, and candidates for office.”[166] Thus:
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business, and the various other formulae for the repression of
expression that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy
the First Amendment.

The general proposition that freedom of expression upon public questions is secured by
the First Amendment has long been settled by our decisions. The constitutional
safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people." Roth v.
United States, 354 U.S. 476, 484.

The maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system.

xxxx

Injury to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error. Where judicial officers are involved, this
Court has held that concern for the dignity and reputation of the courts does not
justify the punishment as criminal contempt of criticism of the judge or his
decision. Bridges v. California, 314 U.S. 252.This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342,
343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present
danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367; Wood v.
Georgia, 370 U.S. 375. If judges are to be treated as "men of fortitude, able to thrive in a
hardy climate," Craig v. Harney, supra, 331 U.S. at 376, surely the same must be true of
other government officials, such as elected city commissioners. Criticism of their official
conduct does not lose its constitutional protection merely because it is effective
criticism, and hence diminishes their official reputations. Stromberg v. California, 283
U.S. 359, 369.[167] (Emphasis supplied)
Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M.
Capulong,[168] as affirmed in the case of Borjal v. Court of Appeals,[169] adopted the
doctrine in New York Times to “public figures.” In Ayer Productions:
A limited intrusion into a person's privacy has long been regarded as permissible where
that person is a public figure and the information sought to be elicited from him or to be
published about him constitute of a public character. Succinctly put, the right of privacy
cannot be invoked resist publication and dissemination of matters of public interest. The
interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate public concern.[170]
Public figures were defined as:
A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be included in this category
are those who have achieved some degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball player, a pugilist, or any other
entertainment. The list is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and
no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public attention is focused upon him as a
person.

Such public figures were held to have lost, to some extent at least, their tight to privacy.
Three reasons were given, more or less indiscriminately, in the decisions" that they had
sought publicity and consented to it, and so could not complaint when they received it;
that their personalities and their affairs has already public, and could no longer be
regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News"
includes all events and items of information which are out of the ordinary hum-drum
routine, and which have 'that indefinable quality of information which arouses public
attention.' To a very great extent the press, with its experience or instinct as to what its
readers will want, has succeeded in making its own definition of news, as a glance at any
morning newspaper will sufficiently indicate. It includes homicide and other crimes,
arrests and police raids, suicides, marriages and divorces, accidents, a death from the
use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old
girl, the reappearance of one supposed to have been murdered years ago, and
undoubtedly many other similar matters of genuine, if more or less deplorable, popular
appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination
of news in the scene of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line,
the courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt.[171] (Emphasis supplied)
This doctrine was reiterated in Vasquez v. Court of Appeals.[172] Petitioner was charged
with libel for allegedly defaming his Barangay Chairperson in an article published in the
newspaper, Ang Tinig ng Masa. Petitioner allegedly caused the dishonor and discredit of
the Barangay Chairperson through the malicious imputation that the public officer
landgrabbed and that he was involved in other illegal activities. In acquitting the
petitioner:
The question is whether from the fact that the statements were defamatory, malice can
be presumed so that it was incumbent upon petitioner to overcome such presumption.
Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against
a public official with respect to the discharge of his official duties and functions and the
truth of the allegation is shown, the accused will be entitled to an acquittal even though
he does not prove that the imputation was published with good motives and for
justifiable ends.

xxxx

In denouncing the barangay chairman in this case, petitioner and the other residents of
the Tondo Foreshore Area were not only acting in their self-interest but engaging in the
performance of a civic duty to see to it that public duty is discharged faithfully and well
by those on whom such duty is incumbent. The recognition of this right and duty of
every citizen in a democracy is inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if it
relates to official conduct, unless the public official concerned proves that the
statement was made with actual malice—that is, with knowledge that it was false or
with reckless disregard of whether it was false or not. This is the gist of the ruling in
the landmark case of New York Times v. Sullivan, which this Court has cited with
approval in several of its own decisions. This is the rule of “actual malice.”

A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations
would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all,
infringe on the constitutionally guaranteed freedom of expression. Such a rule would
deter citizens from performing their duties as members of a self-governing community.
Without free speech and assembly, discussions of our most abiding concerns as a nation
would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and
the “greatest menace to freedom is an inert people.”[173] (Emphasis supplied)
Guingguing v. Court of Appeals[174] involved the publication of information on private
complainant’s criminal cases including photographs of him being arrested. This court
again reiterated:
[Article 354 of the Revised Penal Code], as applied to public figures complaining of
criminal libel, must be construed in light of the constitutional guarantee of free
expression, and this Court’s precedents upholding the standard of actual malice with the
necessary implication that a statement regarding a public figure if true is not libelous.
The provision itself allows for such leeway, accepting as a defense “good intention and
justifiable motive.” The exercise of free expression, and its concordant assurance of
commentary on public affairs and public figures, certainly qualify as “justifiable motive,”
if not “good intention.”

xxxx

As adverted earlier, the guarantee of free speech was enacted to protect not only
polite speech, but even expression in its most unsophisticated form. Criminal libel
stands as a necessary qualification to any absolutist interpretation of the free speech
clause, if only because it prevents the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to safeguard against
fears that the public debate might be muted due to the reckless enforcement of libel
laws, truth has been sanctioned as a defense, much more in the case when the
statements in question address public issues or involve public figures.[175] (Emphasis
supplied)
In Villanueva v. Philippine Daily Inquirer, Inc.,[176] despite the respondents’ false
reporting, this court continued to apply the actual malice doctrine that evolved
from Ayer Productions. Hence:
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
malice or damages, i.e. libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.[177]
V (D)

Overbreadth by Reenactment

With the definite evolution of jurisprudence to accommodate free speech values, it is

clear that the reenactment of the old text of libel is now unconstitutional. Articles 353,
354, and 355 of the Revised Penal Code — and by reference, Section 4(c)4 of the law in
question — are now overbroad as it prescribes a definition and presumption that have
been repeatedly struck down by this court for several decades.

A statute falls under the overbreadth doctrine when “a governmental purpose may not
be achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.”[178] Section 4(c)(4) of Rep. Act No. 10175 and Articles 353, 354,
and 355 produce a chilling effect on speech by being fatally inconsistent with Ayer
Productions as well as by imposing criminal liability in addition to civil ones. Not only
once, but several times, did this court uphold the freedom of speech and expression
under Article III, Section 4 of the 1987 Constitution[179] over an alleged infringement of
privacy or defamation. This trend implies an evolving rejection of the criminal nature of
libel and must be expressly recognized in view of this court’s duty to uphold the
guarantees under the Constitution.
The threat to freedom of speech and the public’s participation in matters of general
public interest is greater than any satisfaction from imprisonment of one who has
allegedly “malicious[ly] imput[ed] x x x a crime, or x x x a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or xxx blacken[ed] the
memory of [the] dead.”[180] The law provides for other means of preventing abuse and
unwarranted attacks on the reputation or credibility of a private person. Among others,
this remedy is granted under the Chapter on Human Relations in the Civil Code,
particularly Articles 19,[181] 20,[182] 21,[183] and even 26.[184] There is, thus, no cogent
reason that a penal statute would overbroadly subsume the primordial right of
freedom of speech provided for in the Constitution.

V (E)

Dangers to Protected Speech Posed by Libel

Exacerbated in the Internet

The effect on speech of the dangerously broad provisions of the current law on libel is
even more palpable in the internet.

Libel under Article 353 is textually defined as the:

x x x public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead. (Emphasis supplied)
Social media allows users to create various groups of various sizes. Some of these sites
are for specific purposes. Others are only open to a select group of “friends” or
“followers”. The ponencia’s distinction between the author and those who share (or
simply express their approval) of the posted message oversimplifies the phenomenon of
exchanges through these sites.

Social media or social networking sites are websites that primarily exist to allow users to
post a profile online and exchange or broadcast messages and information with their
friends and contacts.[185]

Social media or social networking as it is used today began in the United States in 1994
when Beverly Hills Internet created the online community known as Geocities.[186] In
Geocities, individuals were able to design custom-made websites using hypertext mark-
up language or HTML and upload content online. This community then paved the way
for widespread online interaction, leading to the inception of America Online’s Instant
Messenger, where subscribers of the internet service provider could send real-time
exchanges through the network. This led to the prevalence of instant messaging
applications such as ICQ and online chatrooms such as mIRC.[187] In 1999, British website
Friends Reunited was the first popular online hub whose primary purpose was to allow
users to interact and reconnect with former classmates through the internet.
[188]
 Friendster, launched in 2002, became one the first and largest online social
networking sites, reaching up to 117 million users before its decline.[189] The site was
dedicated to connecting with as many people as possible, without a need for prior
physical contact or established relationships. MySpace, another social networking site
launched in 2003, garnered more visitors than popular search engine sites Google and
Yahoo in 2006.[190] These online social networking sites have had several popular
iterations such as Multiply, LiveJournal or Blogger, which serve as venues for individuals
who wish to post individual journal entries, photographs or videos.

Today, the most popular social networking sites are Facebook and Twitter. Facebook,
which was initially known as Facesmash for exclusive use of Harvard University students
and alumni, began in 2003. Eventually, Facebook became the most prevalent and
ubiquitous online social networking site, with some 750 million users worldwide, as of
July 2011.[191]

Twitter gained popularity immediately after its founding in 2006. It gained prominence
by positioning itself as a real-time information network while allowing ease of access
and immediate sharing to an expanding set of users. To date, Twitter has about 750
million registered users, with about 200 million users making use of the platform on a
regular basis.[192] In its latest initial public offering, Twitter disclosed that there are over
500 million tweets (messages with a140-character limit) made in a day.[193]

The most recent social networking phenomenon is Instagram, which was launched in
October 2010. This application allows instantaneous sharing of photographs especially
through smartphones. Today, Instagram has 150 million active users and with over 1.5
billion “likes” of photos shared on the network every day.[194]

These platforms in social media allow users to establish their own social network. It
enables instantaneous online interaction, with each social networking platform thriving
on its ability to engage more and more users. In order to acquire more users, the
owners and developers of these social media sites constantly provide their users with
more features, and with more opportunities to interact. The number of networks grows
as each participant is invited to bring in more of their friends and acquaintances to use
the platforms. Social media platforms, thus, continue to expand in terms of its influence
and its ability to serve as a medium for human interaction. These also encourage self-
expression through words, pictures, video, and a combination of these genres.

There can be personal networks created through these platforms simply for
conversations among friends. Like its counterpart in the real world, this can be similar to
a meeting over coffee where friends or acquaintances exchange views about any and all
matters of their interest. In normal conversation, the context provided by the
participants’ relationships assure levels of confidence that will allow them to exchange
remarks that may be caustic, ironic, sarcastic or even defamatory.

With social media, one’s message in virtual conversations may be reposted and may
come in different forms. On Facebook, the post can be “shared” while on Twitter, the
message can be “retweeted.” In these instances, the author remains the same but the
reposted message can be put in a different context by the one sharing it which the
author may not have originally intended. The message that someone is a thief and an
idiot in friendly and private conversation when taken out of that context will become
defamatory. This applies regardless of the standing of the subject of conversation: The
person called a thief and an idiot may be an important public figure or an ordinary
person.
The ponencia proposes to exonerate the user who reposts but maintain the liability of
the author. This classification is not clear anywhere in the text of the law.
Parenthetically, whether calling someone a thief or an idiot is considered defamatory is
not also clear in the text of the law.

Even if we assume arguendo that this is a reasonable text-based distinction, the result
proposed by the majority does not meet the proposed intent of the law. Private
individuals (as opposed to public officials or figures) are similarly maligned by reposts.

This shows the arbitrariness of the text of the law as well as the categorization proposed
by the ponencia. It leaves too much room for the law enforcer to decide which kinds of
posts or reposts are defamatory. The limits will not be clear to the speaker or writer.
Hence, they will then limit their expression or stifle the sharing of their ideas. They are
definite victims of the chilling effect of the vagueness of the provisions in question.

The problem becomes compounded with messages that are reposted with or without
comment. The following tweets are examples which will provide the heuristic to
understand the problem:
Form A: “@marvicleonen: RT @somebody: Juan is a liar, a thief and an idiot” #thetruth

Form B: “@marvicleonen: This! RT @somebody: Juan is a liar, a thief and an idiot”

#thetruth
Both are posts from a user with the handle @marvicleonen. RT means that the following
message was only reposted (retweeted), and the hashtag #thetruth is simply a way of
categorizing one’s messages. The hashtag itself may also contain speech elements.

Form A is a simple repost. The reasons for reposting are ambiguous. Since reposting is
only a matter of a click of a button, it could be that it was done without a lot of
deliberation. It is also possible that the user agreed with the message and wanted his
network to know of his agreement. It is possible that the user also wanted his network
to understand and accept the message.

Form B is a repost with a comment “This!”. While it may be clearer that there is some
deliberation in the intent to share, it is not clear whether this is an endorsement of the
statement or simply sarcasm. This form is not part of the categorization proposed by the
ponencia.

There are other permutations as there are new platforms that continue to emerge.
Viber and WhatsApp for instance now enable SMS users to create their own network.

There are other problems created by such broad law in the internet. The network made
by the original author may only be of real friends of about 10 people. The network
where his or her post was shared might consist of a thousand participants. Again, the
current law on libel fails to take these problems of context into consideration.

A post, comment or status message regarding government or a public figure has the
tendency to be shared. It easily becomes “viral.” After all, there will be more interest
among those who use the internet with messages that involve issues that are common
to them or are about people that are known to them—usually public officers and public
figures. When the decision in this case will be made known to the public, it is certain to
stimulate internet users to initially post their gut reactions. It will also entice others to
write thought pieces that will also be shared among their friends and followers.

Then, there is the problem of extraterritoriality and the evils that it spawns on speech.
Enforcement of the crime of libel will be viable only if the speaker is within our national
territory. Those residing in other countries are beyond our jurisdiction. To be extradited,
they will have to have laws similar to ours. If they reside in a state different from our
1930 version of libel, then we will have the phenomenon of foreigners or expatriates
having more leeway to criticize and contribute to democratic exchanges than those who
have stayed within our borders.

The broad and simplistic formulation now in Article 353 of the Revised Penal Code
essential for the punishment of cyber libel can only cope with these variations produced
by the technologies in the internet by giving law enforcers wide latitude to determine
which acts are defamatory. There are no judicially determinable standards. The
approach will allow subjective case-by-case ad hoc determination. There will be no real
notice to the speaker or writer. The speaker or writer will calibrate speech not on the
basis of what the law provides but on who enforces it.

This is quintessentially the chilling effect of this law.

The threat of being prosecuted for libel stifles the dynamism of the conversations that
take place in cyberspace. These conversations can be loose yet full of emotion. These
can be analytical and the product of painstaking deliberation. Other conversations can
just be exponential combinations of these forms that provide canisters to evolving ideas
as people from different communities with varied identities and cultures come together
to test their messages.

Certainly, there will be a mix of the public and the private; the serious and the not so
serious. But, this might be the kind of democratic spaces needed by our society: a
mishmash of emotion and logic that may creatively spring solutions to grave public
issues in better and more entertaining ways than a symposium of scholars. Libel with its
broad bright lines, thus, is an anachronistic tool that may have had its uses in older
societies: a monkey wrench that will steal inspiration from the democratic mob.

V (F)

No State Interest in Criminalizing Libel

The kinds of speech that are actually deterred by libel law are more valuable than the
state interest that is sought to be protected by the crime. Besides, there are less
draconian alternatives which have very minimal impact on the public’s fundamental
right of expression. Civil actions for defamation do not threaten the public’s
fundamental right to free speech. They narrow its availability such that there is no
unnecessary chilling effect on criticisms of public officials or policy. They also place the
proper economic burden on the complainant and, therefore, reduce the possibility that
they be used as tools to harass or silence dissenters.

The purposes of criminalizing libel come to better light when we review its history. This
court has had the opportunity to trace its historical development. Guingguing v. Court
of Appeals[195] narrated:
Originally, the truth of a defamatory imputation was not considered a defense in the
prosecution for libel. In the landmark opinion of England's Star Chamber in the Libelis
Famosis case in 1603, two major propositions in the prosecution of defamatory remarks
were established: first, that libel against a public person is a greater offense than one
directed against an ordinary man, and second, that it is immaterial that the libel be true.
These propositions were due to the fact that the law of defamatory libel was
developed under the common law to help government protect itself from criticism
and to provide an outlet for individuals to defend their honor and reputation so they
would not resort to taking the law into their own hands.

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

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

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

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral
defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man
who once famously opined, “Were it left to me to decide whether we should have a
government without newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter.”[196]
It was in that case where the court noted the history of early American media that
focused on a “mad dog rhetoric” approach. This, in turn, led the court to conclude that
“[t]hese observations are important in light of the misconception that freedom of
expression extends only to polite, temperate, or reasoned expression. x x x Evidently,
the First Amendment was designed to protect expression even at its most rambunctious
and vitriolic form as it had prevalently taken during the time the clause was
enacted.”[197]

The case that has defined our understanding of the concept of modern libel – the New
York Times Co. v. Sullivan[198] – then followed. As discussed earlier, the New York
Times case required proof of actual malice when a case for defamation “includes
matters of public concern, public men, and candidates for office.”[199]

The cases of Garrison v. Louisiana, and Curtis Publishing Co. v. Butts both expanded

the New York Times’ actual malice test to public officials and public figures, respectively.
[200]

Libel in the Philippines first emerged during the Spanish colonial times. The Spanish
Penal Code criminalized “rebellion, sedition, assaults, upon persons in authority, and
their agents, and contempts, insults, injurias, and threats against persons in authority
and insults, injurias, and threats against their agents and other public officers.”[201] Thus,
noting the developments in both the Spanish and American colonial periods, it was
correctly observed that:
The use of criminal libel to regulate speech – especially speech critical of foreign rule or
advocating Philippine independence – was a feature of both the Spanish and American
colonial regimes. The Spanish Penal Code and the Penal Code of the Philippines made
insult and calumny a crime. In the early 1900s, the Philippine Commission (whose
members were all appointed by the President of the United States) punished both civil
and criminal libel under Act No. 277, one of its earliest laws.[202]
During the American occupation, Governor-General William Howard Taft explained how
“libel was made into a criminal offense in the Philippines because ‘the limitations of free
speech are not very well understood’ unlike in the US’”[203] Then came the case of U.S. v.
Ocampo,[204] where Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes,
and Faustino Aguilar were charged with libel in connection with the publication of the
article “Birds of Prey” in the newspaper El Renacimiento. The article allegedly defamed
Philippine Commission member and Interior Secretary Mr. Dean C. Worcester. This
court affirmed the conviction of Ocampo and Kalaw stating that there were no
justifiable motives found in the publication of the article.

In essence, Philippine libel law is “a ‘fusion’ of the Spanish law on defamacion and the
American law on libel.”[205] It started as a legal tool to protect government and the status
quo. The bare text of the law had to be qualified through jurisprudential interpretation
as the fundamental right to expression became clearer. In theory, libel prosecution has
slowly evolved from protecting both private citizens and public figures to its modern
notion of shielding only private parties from defamatory utterances.

But, a survey of libel cases during the past two (2) decades will reveal that the libel cases
that have gone up to the Supreme Court[206] generally involved notable personalities for
parties. Relatively, libel cases that involve private parties before the Supreme Court are
sparse.[207] Dean Raul Pangalangan, former dean of the University of the Philippines
College of Law and now publisher of the Philippine Daily Inquirer, observed that “libel
cases are pursued to their conclusion mainly by public figures, x x x [since those filed] by
private persons are settled amicably before the prosecutor.”[208] Among the cases that
reached the Supreme Court were those involving offended parties who were electoral
candidates,[209] ambassadors and business tycoons,[210] lawyers,[211] actors or celebrities,
[212]
 corporations, [213] and, public officers.[214] Even court officials have been involved as
complainants in libel cases.[215]

This attests to the propensity to use the advantages of criminal libel by those who are
powerful and influential to silence their critics. Without doubt, the continuous evolution
and reiteration of the jurisprudential limitations in the interpretation of criminal libel as
currently worded has not been a deterrent. The present law on libel as reenacted by
Section 4(c)(4) of Rep. Act No. 10175 will certainly do little to shield protected speech.
This is clear because there has been no improvement in statutory text from its version in
1930.

Libel law now is used not so much to prosecute but to deter speech. What is charged as
criminal libel may contain precious protected speech. There is very little to support the
view of the majority that the law will not continue to have this effect on speech.

This court has adopted the American case of Garrison v. Louisiana, albeit qualifiedly, in
recognizing that there is an “international trend in diminishing the scope, if not the
viability, of criminal libel prosecutions.”[216] Garrison struck down the Louisiana Criminal
Defamation Statute and held that the statute incorporated constitutionally invalid
standards when it came to criticizing or commenting on the official conduct of public
officials.

It is time that we now go further and declare libel, as provided in the Revised Penal
Code and in the Cybercrime Prevention Act of 2012, as unconstitutional.

This does not mean that abuse and unwarranted attacks on the reputation or credibility
of a private person will not be legally addressed. The legal remedy is civil in nature and
granted in provisions such as the Chapter on Human Relations in the Civil Code,
particularly Articles 19, 20, and 21.[217] These articles provide:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

Article 21. Any person who wilfully causes loss or injury to another in manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
This court previously discussed the nature and applicability of Articles 19 to 21 of the
Civil Code, stating that:
[Article 19], known to contain what is commonly referred to as the principle of abuse of
rights, sets certain standards which must be observed not only in the exercise of one's
rights but also in the performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty and good faith. The
law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may nevertheless become the
source of some illegality. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal wrong
is thereby committed for which the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the government of human relations and for
the maintenance of social order, it does not provide a remedy for its violation.
Generally, an action for damages under either Article 20 or Article 21 would be proper.

Article 20, which pertains to damage arising from a violation of law, provides that:

Art. 20. Every person who contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.

x x x Article 21 of the Civil Code provides that:

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

This article, adopted to remedy the "countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and
moral injury" [Id.] should "vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to provide for specifically in the
statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18, 1978, 83 SCRA 237,
247].

In determining whether or not the principle of abuse of rights may be invoked, there is
no rigid test which can be applied. While the Court has not hesitated to apply Article 19
whether the legal and factual circumstances called for its application [See for e.g.,
Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union
Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL
v. CA, G.R. No. L-46558, July 31, 1981,106 SCRA 391; United General Industries, Inc, v.
Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911,
August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 or other
applicable provision of law, depends on the circumstances of each case. x x x.[218]
In affirming award of damages under Article 19 of the Civil Code, this court has said that
“[t]he legitimate state interest underlying the law of libel is the compensation of the
individuals for the harm inflicted upon them by defamatory falsehood. After all, the
individual’s right to protection of his own good name ‘reflects no more than our basic
concept of the essential dignity and worth of every human being – a concept at the root
of any decent system of ordered liberty.’”[219]

In a civil action, the complainant decides what to allege in the complaint, how much
damages to request, whether to proceed or at what point to compromise with the
defendant. Whether reputation is tarnished or not is a matter that depends on the
toleration, maturity, and notoriety of the person involved. Varying personal thresholds
exists. Various social contexts will vary at these levels of toleration. Sarcasm, for
instance, may be acceptable in some conversations but highly improper in others.
In a criminal action, on the other hand, the offended party does not have full control of
the case. He or she must get the concurrence of the public prosecutor as well as the
court whenever he or she wants the complaint to be dismissed. The state, thus, has its
own agency. It will decide for itself through the prosecutor and the court.

Criminalizing libel imposes a standard threshold and context for the entire society. It
masks individual differences and unique contexts. Criminal libel, in the guise of
protecting reputation, makes differences invisible.

Libel as an element of civil liability makes defamation a matter between the parties. Of
course, because trial is always public, it also provides for measured retribution for the
offended person. The possibility of being sued also provides for some degree of
deterrence.

The state’s interest to protect private defamation is better served with laws providing
for civil remedies for the affected party. It is entirely within the control of the offended
party. The facts that will constitute the cause of action will be narrowly tailored to
address the perceived wrong. The relief, whether injunctive or in damages, will be
appropriate to the wrong.

Declaring criminal libel as unconstitutional, therefore, does not mean that the state
countenances private defamation. It is just consistent with our democratic values.

VI

Cybersex is Unconstitutional

Section 4(c)(1) of Rep. Act No. 10175 is also overbroad and, therefore, unconstitutional.
As presently worded:
SEC. 4. Cybercrime Offenses. —The following acts constitute the offense of cybercrime
punishable under this Act:

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.
The ponencia invites us to go beyond the plain and ordinary text of the law and replace
it with the deliberations in committees that prepared the provision. Thus, it claims:
“(t)he Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and
pornography, i.e. by webcam.”[220]

The majority is not clear why the tighter language defining the crimes of prostitution
and white slavery was not referred to clearly in the provision. Neither does it explain the
state’s interest in prohibiting intimate private exhibition (even for favor or
consideration) by web cam as opposed to physical carnal knowledge required now in
the crime of prostitution.

Worse, the ponencia fails to appreciate the precarious balance that decades of
jurisprudence carved out in relation to criminalizing expression with sexual content.
Instead, the ponencia points out that the “x x x subject of section 4(c)(1)—lascivious
exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC
punishes ‘obscene publications and exhibitions and indecent shows.’”[221] Again, we are
thrown back to the 1930 version of the Revised Penal Code. With constant and
painstaking tests that will bring enlightenment to expression with sexual content
evolved through jurisprudence, it seems that we, as a society, are being thrown back to
the dark ages.

VI (B)

Sweeping Scope of Section 4(c)(1)

This provision is too sweeping in its scope.

As worded, it unreasonably empowers the state to police intimate human expression.

The standard for “lascivious exhibition” and the meaning of “sexual organ or sexual
activity” empowers law enforcers to pass off their very personal standards of their own
morality. Enforcement will be strict or loose depending on their tastes. Works of art sold
in the market in the form of photographs, paintings, memes, and other genre posted in
the internet would have to shape their expression in accordance with the tastes of local
law enforcers. Art — whether free, sold or bartered — will not expand our horizons; it
will be limited by the status quo in our culture wherein the dominant themes will
remain dominant. There will be patriarchal control over what is acceptable intimate
expression.

This provision, thus, produces a chilling effect. It provides for no restrictions to power
and allows power to determine what is “lascivious” and what is not.

Respondents concede that certain artistic works — even if they feature nudity and the
sexual act — are protected speech. They argue that the interpretation of the provision
should allow for these kinds of expression. However, this reading cannot be found from
the current text of the provision. The Solicitor General, though an important public
officer, is not the local policeman in either an urban or rural setting in the Philippines.

Certain art works that depict the nude human body or the various forms of human
intimacies will necessarily have a certain degree of lasciviousness. Human intimacy,
depicted in the sexual act, is not sterile. It is necessarily evocative, expressive, and full of
emotions. Sexual expression can be titillating and engaging. It is to be felt perhaps more
than it should be rationally understood.

Michaelangelo’s marble statue, David, powerfully depicted an exposed Biblical hero.

Sandro Boticelli’s painting, Birth of Venus, emphatically portrays the naked, full-grown
mythological Roman goddess Venus. The Moche erotic pots of Peru depict various
sexual acts. These representations of human nakedness may be lascivious for some but
expressively educational for others. This can be in images, video files, scientific
publications, or simply the modes of expression by internet users that can be exchanged
in public.
 VI (C)

Standards for “Obscenity”

This is not the first time that this court deals with sexually-related expression. This court
has carefully crafted operative parameters to distinguish the “obscene” from the
protected sexual expression. While I do not necessarily agree with the current standards
as these have evolved, it is clear that even these standards have not been met by the
provision in question. I definitely agree that “lascivious” is a standard that is too loose
and, therefore, unconstitutional.

Even for this reason, the provision cannot survive the constitutional challenge.

Obscenity is not easy to define.[222] In Pita v. Court of Appeals, we recognized that

“individual tastes develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five decades ago, is not
necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today.”[223]

Using the concept of obscenity or defining this term is far from being settled.[224] The
court’s task, therefore, is to “[evolve] standards for proper police conduct faced with
the problem” and not so much as to arrive at the perfect definition.[225]

In Gonzales v. Kalaw-Katigbak,[226] we noted the persuasiveness of Roth v. United

States[227] and borrowed some of its concepts in judging obscenity.
There is persuasiveness to the approach followed in Roth: ‘The early leading standard of
obscenity allowed material to be judged merely by the effect of an isolated excerpt
upon particularly susceptible persons. Regina v. Hicklin [1968] LR 3 QB 360. Some American
courts adopted this standard but later decisions have rejected it and substituted this
test: whether to the average person, applying contemporary community standards,
the dominant theme of the material taken as a whole appeals to prurient interest. The
Hicklin test, judging obscenity by the effect of isolated passages upon the most
susceptible persons, might well encompass material legitimately treating with sex, and
so it must be rejected as unconstitutionally restrictive of the freedoms of speech and
press. On the other hand, the substituted standard provides safeguards to withstand
the charge of constitutional infirmity.”[228] (Emphasis supplied)
Thus, at present, we follow Miller v. California,[229] a United States case, as the latest
authority on the guidelines in characterizing obscenity.[230] The guidelines, which already
integrated the Roth standard on prurient interest, are as follows:
a.  Whether the ‘average person, applying contemporary standards’ would find the
work, taken as a whole, appeals to the prurient interest x x x;

b.  Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and

c.  Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.[231]
The guidelines in Miller were adopted in Pita v. Court of Appeals[232] and Fernando v.
Court of Appeals.[233] It was also cited in the 2009 case of Soriano v.
Laguardia[234] wherein we stated:
Following the contextual lessons of the cited case of Miller v. California a patently
offensive utterance would come within the pale of the term obscenity should it appeal
to the prurient interest of an average listener applying contemporary standards.[235]
The tests or guidelines cited above were created and applied as demarcations between
protected expression or speech and obscene expressions. The distinction is crucial
because censorship or prohibition beyond these guidelines is a possible danger to the
protected freedom. For this reason, the courts, as “guard[ians] against any
impermissible infringement on the freedom of x x x expression,” “should be mindful that
no violation of such is freedom is allowable.”[236]

The scope of the cybersex provision is defective. Contrary to the minimum standards
evolved through jurisprudence, the law inexplicably reverts to the use of the term
“lascivious” to qualify the prohibited exhibition of one’s sexuality. This effectively
broadens state intrusion. It is an attempt to reset this court’s interpretation of the
constitutional guarantee of freedom of expression as it applies to sexual expression.

First, the current text does not refer to the standpoint of the “average person, applying
contemporary standards.” Rather it refers only to the law enforcer’s taste.

Second, there is no requirement that the “work depicts or describes in a patently

offensive way sexual conduct”[237] properly defined by law. Instead, it simply requires
“exhibition of sexual organs or sexual activity”[238] without reference to its impact on its
audience.

Third, there is no reference to a judgment of the “work taken as a whole”[239] and that

this work “lacks serious literary, artistic, political or scientific” value. Rather, it simply
needs to be “lascivious.”[240]

Roth v. United States[241] sheds light on the relationship between sex and obscenity, and
ultimately, cybersex as defined in Rep. Act No. 10175 and obscenity:
However, sex and obscenity are not synonymous. Obscene material is material which
deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. in
art, literature and scientific works, is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a great and mysterious
motive force in human life, has indisputably been a subject of absorbing interest to
mankind through the ages; it is one of the vital problems of human interest and public
concern.[242]
This court adopted these views in Gonzales v. Kalaw-Katigbak.[243]

VI (D)

Obscenity and Equal Protection

Some of the petitioners have raised potential violations of the equal protection clause in
relation to provisions relating to obscenity.

We are aware that certain kinds of offensive and obscene expression can be stricken
down as unconstitutional as it violates the equal protection clause. At this point, any
assessment of this argument must require the framework of adversarial positions arising
from actual facts. However, a survey of this argument may be necessary in order to
show that even the current text will not be able to survive this challenge.

Catharine MacKinnon suggests that there is a conflict between the application of

doctrines on free expression and the idea of equality between the sexes.[244] The issue of
obscenity, particularly pornography, is “legally framed as a vehicle for the expression of
ideas.”[245] Pornography, in essence, is treated as “only words” or expressions that are
distinct from what it does (from its acts).[246] As such, it is accorded the status of
preferred freedom, without regard to its harmful effects, that is perpetuating a social
reality that women are subordinate to men.[247] Hence, in protecting pornography as an
expression, the actions depicted become protected in the name of free expression.[248]

The issue of inequality had, in the past, been rendered irrelevant when faced with the
issue of obscenity or pornography.[249] This was not addressed by our jurisprudence on
obscenity.[250] The guidelines on determining what is obscene are premised on the idea
that men and women are equal and viewed equally — which basically pertains to the
male’s point of view of equality that women are inferior.[251]

In treating pornography, therefore, as protected expression, it is alleged that the State

protects only the men’s freedom of speech.[252] Simultaneously, however, women’s
freedom of speech is trampled upon.[253] Each time pornography is protected as free
expression, the male view of equality is perpetuated.[254] It becomes more and more
integrated into the consciousness of the society, silencing women, and rendering the
reality of female subordination so unremarkable that it becomes inconsequential and
even doubtful.[255]

Others do not agree with MacKinnon’s view. According to Edwin Baker, MacKinnon’s
theory “fails to recognize or provide for the primary value of or justification for
protecting expression.”[256] It fails to recognize the status of this freedom vis a
vis individual liberty, and why this freedom is fundamental.[257] More than through
arguments about ideas, people induce changes and transform their social and political
environments through expressive behavior.[258] Also, being able to participate in the
process of social and political change is “encompassed in the protected liberty.”[259]

Baker provides an example, thus:

Even expression that is received less as argument than “masturbation material”,
becomes a part of a cultural or behavioral “debate” about sexuality, about the nature of
human relations, and about pleasure and morality, as well as about the roles of men and
women. Historically, puritanical attempts to suppress sexually explicit materials appear
largely designed to shut down this cultural contestation in favor of a traditional practice
of keeping women in the private sphere. Opening up this cultural debate has in the past,
and can in the future, contribute to progressive change.[260]
Baker also points out that MacKinnon disregards that receivers of communicated
expressions are presumably autonomous agents who bear the responsibility for their
actions and are capable of moral choice.[261]

The expression should also be treated as independent of the act or offense. The
expression or “autonomous act of the speaker does not itself cause x x x harm. Rather,
the harm occurs through how the other person, presumably an autonomous agent
whom we normally treat as bearing the responsibility for her own acts, responds.”[262]

Baker agrees that expressions “[construct] the social reality in which [offenses] take
place.”[263] However, the expression itself is not the offense.[264]
Part of the reason to protect speech, or, more broadly, to protect liberty, is a
commitment to the view that people should be able to participate in constructing their
world, or to the belief that this popular participation provides the best way to move
toward a better world. The guarantee of liberty represents a deep faith in people and in
democracy.[265]
Punishing or even threatening to punish “lascivious exhibition of sexual organs or sexual
activity” through “the aid of a computer system” for “favor or consideration” does
nothing to alleviate the subordination of women. Rather, it facilitates the patriarchy. It
will allow control of what a woman does with her body in a society that will be
dominated by men or by the ideas that facilitate men’s hegemony.

The current provision prohibiting cybersex will reduce, through its chilling effect, the
kind of expression that can be the subject of mature discussion of our sexuality. The
public will, therefore, lose out on the exchanges relating to the various dimensions of
our relationships with others. The cybersex provisions stifles speech, aggravates
inequalities between genders, and will only succeed to encrust the views of the
powerful.

If freedom of expression is a means that allows the minority to be heard, then the
current version of this law fails miserably to protect it. It is overbroad and
unconstitutional and should not be allowed to exist within our constitutional order.

VI (E)

Child Pornography Different from Cybersex

It is apt to express some caution about how the parties confused child pornography
done through the internet and cybersex.

Section 4(c)(2), which pertains to child pornography, is different from the cybersex
provision. The provision on child pornography provides:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
In my view, this provision should survive constitutional challenge. Furthermore, it is not
raised in this case. The explicit reference to the Anti-Pornography Law or Republic Act
No. 9775 constitutes sufficient standard within which to base the application of the law
and which will allow it to survive a facial challenge for now.

VII

Traffic Data and Warrants

Section 12 of the Cybercrime Prevention Act of 2012 provides:
Real-Time Collection of Traffic Data — Law enforcement authorities, with due cause,
shall be authorized to collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted by means of a
computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in
the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant and
the witnesses he may produce and the showing:

(1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed:

(2) that there are reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to the prevention
of, any such crimes; and

(3) that there are no other means readily available for obtaining such evidence.
VII (B)

Traffic Data and Expression

Traffic data, even as it is defined, still contains speech elements. When, how, to whom,
and how often messages are sent in the internet may nuance the content of the speech.
The message may be short (as in the 140-character limit of a tweet) but when it is
repeated often enough in the proper context, it may imply emphasis or desperation.
That a message used the email with a limited number of recipients with some blind
carbon copies (Bcc) characterizes the message when it is compared to the possibility of
actually putting the same content in a public social media post.

The intended or unintended interception of these parts of the message may be enough
deterrent for some to make use of the space provided in cyberspace. The parameters
are so loosely and broadly defined as “due cause” to be determined by “law enforcers”.
Given the pervasive nature of the internet, it can rightly be assumed by some users that
law enforcers will make use of this provision and, hence, will definitely chill their
expression.

Besides, the provision — insofar as it allows warrantless intrusion and interception by

law enforcers upon its own determination of due cause — does not specify the limits of
the technologies that they can use. Traffic data is related to and intimately bound to the
content of the packets of information sent from one user to the other or from one user
to another server. The provision is silent on the limits of the technologies and methods
that will be used by the law enforcer in tracking traffic data. This causes an
understandable apprehension on the part of those who make use of the same servers
but who are not the subject of the surveillance. Even those under surveillance — even
only with respect to the traffic data — have no assurances that the method of
interception will truly exclude the content of the message.

As observed by one author who sees the effect of general and roving searches on
freedom of expression:
Most broadly, freedom from random governmental monitoring—of both public spaces
and recorded transactions—might be an essential predicate for self definition and
development of the viewpoints that make democracy vibrant. This reason to be
concerned about virtual searches, while somewhat amorphous, is important enough to
have been remarked on by two Supreme Court justices. The first wrote, ‘walking and
strolling and wandering…have been in part responsible for giving our people the feeling
of independence and self-confidence, the feeling of creativity. These amenities have
dignified the right to dissent and have honoured the right to be nonconformists and the
right to defy submissiveness. They have encouraged lives of high spirits rather than
hushed suffocating silence.’ The second justice wrote:

Suppose that the local police in a particular jurisdiction were to decide to station a
police car at the entrance to the parking lot of a well-patronised bar from 5:30 p.m. to
7:30 p.m. every day…I would guess that the great majority of people…would say that
this is not a proper police function…There would be an uneasiness, and I think a justified
uneasiness, if those who patronised the bar felt that their names were being taken
down and filed for future reference…This ought not to be governmental function when
the facts are as extreme as I put them.[266]
It will be different if it will be in the context of a warrant from a court of law. Its
duration, scope, and targets can be more defined. The methods and technologies that
will be used can be more limited. There will thus be an assurance that the surveillance
will be reasonably surgical and provided on the basis of probable cause. Surveillance
under warrant, therefore, will not cause a chilling effect on internet expression.

In Blo Umpar Adiong v. COMELEC, [267] this court reiterated:

A statute is considered void for overbreadth when "it offends the constitutional
principle that a governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed
2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for
achieving the same basic purpose.

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

ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia,
without a license, pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155,
60 S Ct. 146, the Court dealt with ordinances of four different municipalities which
either banned or imposed prior restraints upon the distribution of handbills. In holding
the ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be astute to
examine the effect of the challenged legislation. Mere legislative preferences or beliefs
respecting matters of public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as diminishes the exercise of rights
so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v
Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of society," but pointed out
that in each case "the power to regulate must be so exercised as not, in attaining a
permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v.
Tucker, 364 US 479 [1960][268]
Section 12 of Rep. Act No. 10175 broadly authorizes law enforcement authorities “with
due cause” to intercept traffic data in real time. “Due cause” is a uniquely broad
standard different from the “probable cause” requirement in the constitution or the
parameters of “reasonable searches” in our jurisprudence.

The statute does not care to make use of labels of standards replete in our
jurisprudence. It foists upon the public a standard that will only be defined by those who
will execute the law. It therefore amounts to a carte blanche and roving authority whose
limits are not statutorily limited. Affecting as it does our fundamental rights to
expression, it therefore is clearly unconstitutional.

VII (C)

Traffic Data and Privacy Rights

Traffic data is defined by the second paragraph of Section 12 of Rep. Act No. 10175,
thus:
Traffic data refer only to the communication’s origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.
As worded, the collection, aggregation, analysis, storage and dissemination of these
types of data may implicate both the originator’s and the recipient’s rights to privacy.

That these data move through privately owned networks, administered by private
internet service providers, and run through privately owned internet exchange nodes is
no moment. We will have to decide in some future case (where the facts and
controversy would be clearer and more concrete) the nature and levels of intrusion that
would be determined as a “reasonable search” and the uses of such data that would be
reasonable “seizures” within the meaning of Article III, Section 2 of the Constitution. In
such cases, we will have to delimit the privacy interests in the datum in question as well
as in the data that may be collaterally acquired.

There are many types of “searches”.

There are instances when the observation is done only for purposes of surveillance. In
these types of “searches,” the law enforcers may not yet have a specific criminal act in
mind that has already been committed. Perhaps, these are instances when government
will just want to have access to prevent the occurrence of cyber attacks of some kind.
Surveillance can be general, i.e., one where there is no specific actor being observed.
Some general surveillance may also be suspicionless. This means that there is no
concrete indication that there will be some perpetrator. It is the surveillance itself that is
the preventive action to deter any wrongdoing. It can also be specific, i.e., that there is
already an actor or a specific group or classification of actors that is of interest to the
government.

Then, there are the “searches” which are more properly called investigations. That is,
that there is already a crime that has been committed or certain to be committed and
law enforcers will want to find evidence to support a case. Then there is the “search”
that simply enables law enforcers to enter a physical or virtual space in order to retrieve
and preserve evidence already known to law enforcers.

For the moment, it is enough to take note that almost all of our jurisprudence in this
regard has emerged from physical intrusions into personal spaces.

In In the Matter of the Petition for the Writ of the Petition for Issuance of Writ of Habeas
Corpus of Camilo L. Sabio v. Gordon,[269] this court explained the determination of a
violation of the right of privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two
guarantees that explicitly create zones of privacy. It highlights a person's "right to be let
alone" or the "right to determine what, how much, to whom and when information
about himself shall be disclosed." Section 2 guarantees "the right of the people to be
secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose." Section 3 renders inviolable the
"privacy of communication and correspondence" and further cautions that "any
evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if so, whether
that expectation has been violated by unreasonable government intrusion.[270]
“Reasonable expectations of privacy,” however, may not be the only criterion that may
be useful in situations arising from internet use. Some have suggested that in view of
the infrastructure or the permeability of the networks created virtually and its
cosmopolitarian or cross-cultural character, it may be difficult to identify what may be
the normative understanding of all the participants with respect to privacy.[271] It has
been suggested that privacy may best be understood in its phases, i.e., a core
inalienable category where personal information is within the control of the individual,
the right to initial disclosure, and the right for further dissemination.[272]

In People v. Chua Ho San,[273] this court made an explicit connection between the right to
privacy and the right against unreasonable searches and seizures. Even then, based on
the facts there alleged, a search was described as a “State intrusion to a person’s body,
personal effects or residence”:
Enshrined in the Constitution is the inviolable right to privacy of home and person. It
explicitly ordains that people have the right to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and
for any purpose. Inseparable, and not merely corollary or incidental to said right and
equally hallowed in and by the Constitution, is the exclusionary principle which decrees
that any evidence obtained in violation of said right is inadmissible for any purpose in
any proceeding.

The Constitutional proscription against unreasonable searches and seizures does not, of
course, forestall reasonable searches and seizure. What constitutes a reasonable or
even an unreasonable search in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. Verily, the rule is, the
Constitution bars State intrusions to a person's body, personal effects or residence
except if conducted by virtue of a valid search warrant issued in compliance with the
procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise
such search and seizure become ‘unreasonable’ within the meaning of the
aforementioned constitutional provision.”[274]
In the more recent case of Valeroso v. People,[275] this court held that:
Unreasonable searches and seizures are the menace against which the constitutional
guarantees afford full protection. While the power to search and seize may at times be
necessary for public welfare, still it may be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for no enforcement of any statute
is of sufficient importance to justify indifference to the basic principles of government.
Those who are supposed to enforce the law are not justified in disregarding the rights of
an individual in the name of order. Order is too high a price to pay for the loss of liberty.
[276]

Very little consideration, if any, has been taken of the speed of information transfers
and the ephemeral character of information exchanged in the internet.

I concede that the general rule is that in order for a search to be considered reasonable,
a warrant must be obtained. In Prudente v. Dayrit:[277]
For a valid search warrant to issue, there must be probable cause, which is to be
determined personally by the judge, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. The probable cause must be in
connection with one specific offense and the judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and
under oath, the complainant and any witness he may produce, on facts personally
known to them and attach to the record their sworn statements together with any
affidavits submitted.

The "probable cause" for a valid search warrant, has been defined "as such facts and
circumstances which would lead a reasonably discreet arid prudent man to believe that
an offense has been committed, and that objects sought in connection with the offense
are in the place sought to be searched." This probable cause must be shown to be
within the personal knowledge of the complainant or the witnesses he may produce and
not based on mere hearsay.[278] (Citations omitted)
However, not all searches without a warrant are per se invalid. Jurisprudence is replete
with the exceptions to the general rule.

In People v. Rodrigueza,[279] this court reiterated the enumeration of the instances when

a search and seizure may be conducted reasonably without the necessity of a search
warrant:
As provided in the present Constitution, a search, to be valid, must generally be
authorized by a search warrant duly issued by the proper government authority. True, in
some instances, this Court has allowed government authorities to conduct searches and
seizures even without a search warrant. Thus, when the owner of the premises waives
his right against such incursion; when the search is incidental to a lawful arrest; when it
is made on vessels and aircraft for violation of customs laws; when it is made on
automobiles for the purpose of preventing violations of smuggling or immigration laws;
when it involves prohibited articles in plain view; or in cases of inspection of buildings
and other premises for the enforcement of fire, sanitary and building regulations, a
search may be validly made even without a search warrant.[280] (Citations omitted)
In specific instances involving computer data, there may be analogies with searches of
moving or movable vehicles. People v. Bagista[281] is one of many that explains this
exception:
The constitutional proscription against warrantless searches and seizures admits of
certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search
had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.

With regard to the search of moving vehicles, this had been justified on the ground that
the mobility of motor vehicles makes it possible for the vehicle to be searched to move
out of the locality or jurisdiction in which the warrant must be sought.

This in no way, however, gives the police officers unlimited discretion to conduct
warrantless searches of automobiles in the absence of probable cause. When a vehicle
is stopped and subjected to an extensive search, such a warrantless search has been
held to be valid only as long as the officers conducting the search have reasonable or
probable cause to believe before the search that they will find the instrumentality or
evidence pertaining to a crime, in the vehicle to be searched.[282] (Citations omitted)
Then again in People v. Balingan,[283] this court held that there was a valid search and
seizure, even if done in a moving vehicle. It gave the rationale for this holding:
We also find no merit in appellant's argument that the marijuana flowering tops should
be excluded as evidence, they being the products of an alleged illegal warrantless
search. The search and seizure in the case at bench happened in a moving, public
vehicle. In the recent case of People vs. Lo Ho Wing, 193 SCRA 122 (1991), this Court
gave its approval to a warrantless search done on a taxicab which yielded the illegal
drug commonly known as shabu. In that case, we raciocinated:

xxxx
The contentions are without writ. As correctly averred by appellee, that search and
seizure must be supported by a valid warrant is not an absolute rule. There are at least
three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs.
Sandiganbayan, these are: [1] a search incidental to an arrest, [2] a search of a moving
vehicle, and [3] seizure of evidence in plain view (emphasis supplied). The circumstances
of the case clearly show that the search in question was made as regards a moving
vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant
and his co-accused.

In this connection, We cite with approval the averment of the Solicitor General, as
contained in the appellee's brief, that the rules governing search and seizure have over
the years been steadily liberalized whenever a moving vehicle is the object of the search
on the basis of practicality. This is so considering that before a warrant could be
obtained, the place, things and persons to be searched must be described to the
satisfaction of the issuing judge — a requirement which borders on the impossible in the
case of smuggling effected by the use of a moving vehicle that can transport contraband
from one place to another with impunity. We might add that a warrantless search of a
moving vehicle is justified on the ground that "it is not practicable to secure a warrant
because the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought."[284]
Another instance of a reasonable and valid warrantless search which can be used
analogously for facts arising from internet or computer use would be in instances where
the existence of the crime has been categorically acknowledged. People v. De Gracia,
[285]
 explains:

The next question that may be asked is whether or not there was a valid search and
seizure in this case. While the matter has not been squarely put in issue, we deem it our
bounden duty, in light of advertence thereto by the parties, to delve into the legality of
the warrantless search conducted by the raiding team, considering the gravity of the
offense for which herein appellant stands to be convicted and the penalty sought to be
imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not
armed with a search warrant at that time. The raid was actually precipitated by
intelligence reports that said office was being used as headquarters by the RAM. Prior to
the raid, there was a surveillance conducted on the premises wherein the surveillance
team was fired at by a group of men coming from the Eurocar building. When the
military operatives raided the place, the occupants thereof refused to open the door
despite requests for them to do so, thereby compelling the former to break into the
office. The Eurocar Sales Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives and ammunition. It is
primarily and solely engaged in the sale of automobiles. The presence of an unusual
quantity of high-powered firearms and explosives could not be justifiably or even
colorably explained. In addition, there was general chaos and disorder at that time
because of simultaneous and intense firing within the vicinity of the office and in the
nearby Camp Aguinaldo which was under attack by rebel forces. The courts in the
surrounding areas were obviously closed and, for that matter, the building and houses
therein were deserted.
Under the foregoing circumstances, it is our considered opinion that the instant case
falls under one of the exceptions to the prohibition against a warrantless search. In the
first place, the military operatives, taking into account the facts obtaining in this case,
had reasonable ground to believe that a crime was being committed. There was
consequently more than sufficient probable cause to warrant their action. Furthermore,
under the situation then prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. The trial judge himself manifested that on
December 5, 1989 when the raid was conducted, his court was closed. Under such
urgency and exigency of the moment, a search warrant could lawfully be dispensed
with.[286]

But the internet has created other dangers to privacy which may not be present in the
usual physical spaces that have been the subject of searches and seizures in the past.
Commercial owners of servers and information technologies as well as some
governments have collected data without the knowledge of the users of the internet. It
may be that our Data Privacy Law[287] may be sufficient.

Absent an actual case therefore, I am not prepared to declare Section 12 of Rep. Act
10175 as unconstitutional on the basis of Section 2 or Section 3(a) of Article III of the
Constitution. My vote only extends to its declaration of unconstitutionality because the
unlimited breadth of discretion given to law enforcers to acquire traffic data for “due
cause” chills expression in the internet. For now, it should be stricken down because it
violates Article III, Section 4 of the Constitution.

VIII

Limitations on Commercial Speech

are Constitutional

I dissent from the majority in their holding that Section 4(c)(3) of Rep. Act No. 10175 is
unconstitutional. This provides:
“(3) Unsolicited Commercial Communications. – The transmission of commercial
electronic communication with the use of computer system which seek to advertise,
sell, or offer for sale product and services are prohibited unless:

“(i) there is prior affirmative consent from the recipient; or

“(ii) the primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

“(iii) the following conditions are present:

“(aa) the commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt
out) from the same source;

“(bb) the commercial electronic communication does not purposely disguise the source
of the electronic message; and

“(cc) the commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.”
On the origins of this provision, the Senate Journal’s reference to the deliberations on
the Cybercrime Law[288] states:
Unsolicited Commercial Communications in Section 4(C)(3)

This offense is not included in the Budapest Convention. Although there is an ongoing
concern against receiving spams or unsolicited commercial e-mails sent in bulk through
the computer or telecommunication network, Section 4(C)(3) is too general in the sense
it can include a simple email from one person to another person, wherein the sender
offers to sell his house or car to the receiver. Therefore, to avoid such acts of injustice,
Section 4(C)(3) should be narrowed.

Senator Angara accepted the recommendation as he clarified that what the bill covers is
unsolicited emails in bulk.[289]
VIII (B)

Section 4(c)(3) Has No Chilling Effect

on Speech of Lower Value

Section 4(c)(3) of Rep. Act No. 10175 on unsolicited commercial communication has no
chilling effect. It is narrowly drawn. Absent an actual case, it should not be declared as
unconstitutional simply on the basis of its provisions. I dissent, therefore, in the
majority’s holding that it is unconstitutional.

Commercial speech merited attention in 1996 in Iglesia ni Cristo v. Court of Appeals.

[290]
 In Iglesia ni Cristo, this court stated that commercial speech is “low value” speech to
which the clear and present danger test is not applicable.[291]

In 2007, Chief Justice Reynato Puno had the opportunity to expound on the treatment
of and the protection afforded to commercial speech in his concurring and separate
opinion in Pharmaceutical and Health Care Association of the Philippines v. Duque III.
[292]
 Writing “to elucidate another reason why the absolute ban on the advertising and
promotion of breastmilk substitutes x x x should be struck down,”[293] he explained the
concept of commercial speech and traced the development of United States
jurisprudence on commercial speech:
The advertising and promotion of breastmilk substitutes properly falls within the ambit
of the term commercial speech-that is, speech that proposes an economic transaction.
This is a separate category of speech which is not accorded the same level of protection
as that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.

A look at the development of jurisprudence on the subject would show us that initially
and for many years, the United States Supreme Court took the view that commercial
speech is not protected by the First Amendment. It fastened itself to the view that the
broad powers of government to regulate commerce reasonably includes the power to
regulate speech concerning articles of commerce.

This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, the U.S. Supreme court struck down a law prohibiting the
advertising of prices for prescription drugs. It held that price information was important
to consumers, and that the First Amendment protects the "right to receive information"
as well as the right to speak. It ruled that consumers have a strong First Amendment
interest in the free flow of information about goods and services available in the
marketplace and that any state regulation must support a substantial interest.

Central Hudson Gas & Electric v. Public Service Commission is the watershed case that
established the primary test for evaluating the constitutionality of commercial speech
regulations. In this landmark decision, the U.S. Supreme Court held that the regulation
issued by the Public Service Commission of the State of New York, which reaches all
promotional advertising regardless of the impact of the touted service on overall energy
use, is more extensive than necessary to further the state's interest in energy
conservation. In addition, it ruled that there must be a showing that a more limited
restriction on the content of promotional advertising would not adequately serve the
interest of the State. In applying the First Amendment, the U.S. Court rejected the highly
paternalistic view that the government has complete power to suppress or regulate
commercial speech.

Central Hudson provides a four-part analysis for evaluating the validity of regulations of

commercial speech. To begin with, the commercial speech must "concern lawful activity
and not be misleading" if it is to be protected under the First Amendment. Next, the
asserted governmental interest must be substantial. If both of these requirements are
met, it must next be determined whether the state regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary
to serve that interest.[294] (Citations omitted)
In his separate concurring opinion in Chavez v. Gonzales,[295] Justice Antonio Carpio,
citing Pharmaceutical and Health Care Association of the Philippines, stated that “false
or misleading advertisement” is among the instances in which “expression may be
subject to prior restraint,”[296] thus:
The exceptions, when expression may be subject to prior restraint, apply in this
jurisdiction to only four categories of expression, namely: pornography, false or
misleading advertisement, advocacy of imminent lawless action, and danger to national
security. All other expression is not subject to prior restraint. As stated in Turner
Broadcasting System v. Federal Communication Commission, “[T]he First Amendment
(Free Speech Clause), subject only to narrow and well understood exceptions, does not
countenance governmental control over the content of messages expressed by private
individuals.”[297] (Citations omitted)
Further in his separate concurring opinion, Justice Carpio reiterates this point. Making
reference to the norm in the United States, he states that “false or deceptive
commercial speech is categorized as unprotected expression that may be subject to
prior restraint”.[298] Conformably, he also cited Pharmaceutical and Health Care
Association of the Philippines and its having “upheld the constitutionality of Section 6 of
the Milk Code requiring the submission to a government screening committee of
advertising materials for infant formula milk to prevent false or deceptive claims to the
public.”

In his twelfth footnote, Justice Carpio made reference to the state interest, articulated
in the Constitution itself, in regulating advertisements:
Another fundamental ground for regulating false or misleading advertisement is Section
11(2), Article XVI of the Constitution which states : “The advertising industry is
impressed with public interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare.”[299]
As acknowledged by the majority, “[c]ommercial speech is a separate category of
speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to
protection.”[300]

I agree that the basis of protection accorded to commercial speech rests in its
informative character: “[t]he First Amendment's concern for commercial speech is
based on the informational function of advertising”:[301]
Commercial expression not only serves the economic interest of the speaker, but also
assists consumers and furthers the societal interest in the fullest possible [447 U.S. 557,
562] dissemination of information. In applying the First Amendment to this area, we
have rejected the "highly paternalistic" view that government has complete power to
suppress or regulate commercial speech. "[P]eople will perceive their own best interest
if only they are well enough informed, and . . . the best means to that end is to open the
channels of communication, rather than to close them. . . ." Id., at 770; see Linmark
Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising
communicates only an incomplete version of the relevant facts, the First Amendment
presumes that some accurate information is better than no information at all. Bates v.
State Bar of Arizona, supra, at 374.[302]
Since it is valuable only to the extent of its ability to inform, advertising is not at par with
other forms of expression such as political or religious speech. The other forms of
speech are indispensable to the democratic and republican mooring of the state
whereby the sovereignty residing in the people is best and most effectively exercised
through free expression. Business organizations are not among the sovereign people.
While business organizations, as juridical persons, are granted by law a capacity for
rights and obligations, they do not count themselves as among those upon
whom human rights are vested.

The distinction between commercial speech and other forms of speech is, thus, self-
evident. As the United States Supreme Court noted in a discursive footnote in Virginia
Pharmacy Board:[303]
In concluding that commercial speech enjoys First Amendment protection, we have not
held that it is wholly undifferentiable from other forms. There are commonsense
differences between speech that does "no more than propose a commercial
transaction," Pittsburgh Press Co., v. Human Relations Comm'n, 413 U.S., at 385, and
other varieties. Even if the differences do not justify the conclusion that commercial
speech is valueless, and thus subject to complete suppression by the State, they
nonetheless suggest that a different degree of protection is necessary to insure that
the flow of truthful and legitimate commercial information is unimpaired. The truth of
commercial speech, for example, may be more easily verifiable by its disseminator than,
let us say, news reporting or political commentary, in that ordinarily the advertiser seeks
to disseminate information about a specific product or service that he himself provides
and presumably knows more about than anyone else. Also, commercial speech may be
more durable than other kinds. Since advertising is the sine qua non of commercial
profits, there is little likelihood of its being chilled by proper regulation and forgone
entirely.

Attributes such as these, the greater objectivity and hardiness of commercial

speech, may make it less necessary to tolerate inaccurate statements for fear of
silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
with Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it
appropriate to require that a commercial message appear in such a form, or include
such additional information, warnings, and disclaimers, as are necessary to prevent its
being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974),
with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom.
Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf. United States v. 95 Barrels of
Vinegar, 265 U.S. 438, 443 (1924) ("It is not difficult to choose statements, designs and
devices which will not deceive"). They may also make inapplicable the prohibition
against prior restraints. Compare New York Times Co. v. United States, 403 U.S.
713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v.
Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735,
739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957).[304] (Emphasis supplied)
It follows, therefore, that the state may validly suppress commercial speech that fails to
express truthful and accurate information. As emphasized in Central Hudson:[305]
The First Amendment's concern for commercial speech is based on the informational
function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765,
783 (1978). Consequently, there can be no constitutional objection to the suppression
of commercial messages that do not accurately inform the public about lawful
activity. The government may ban forms of communication more likely to deceive the
public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State
Bar Assn., supra, at 464-465, or [447 U.S. 557, 564] commercial speech related to illegal
activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973).

If the communication is neither misleading nor related to unlawful activity, the

government's power is more circumscribed. The State must assert a substantial interest
to be achieved by restrictions on commercial speech. Moreover, the regulatory
technique must be in proportion to that interest. The limitation on expression must be
designed carefully to achieve the State's goal. Compliance with this requirement may be
measured by two criteria. First, the restriction must directly advance the state interest
involved; the regulation may not be sustained if it provides only ineffective or remote
support for the government's purpose. Second, if the governmental interest could be
served as well by a more limited restriction on commercial speech, the excessive
restrictions cannot survive.[306]
Section 4(c) (3) of the Rep. Act No. 10175 refers only to commercial speech since it
regulates communication that advertises or sells products or services. These
communications, in turn, proposes only commercial or economic transactions. Thus, the
parameters for the regulation of commercial speech as articulated in the preceding
discussions are squarely applicable.

Definitely, there is no occasion for Section 4(c)(3) to chill speech of fundamental value.
Absent an actual case, judicial review should not go past that test. Hence, this provision
should not be declared unconstitutional.
 VIII (C)

The Provision has a Valid Purpose

As noted by the majority, Section 4(c)(3) refers to what, in contemporary language, has
been referred to as “spam”. The origin of the term is explained as follows:
The term “spam,” as applied to unsolicited commercial email and related undesirable
online communication, is derived from a popular Python sketch set in a cafe that
includes the canned meat product SPAM in almost every dish. As the waitress describes
the menu with increasing usage of the word “spam,” a group of Vikings in the cafe start
singing, “Spam, spam, spam, spam, spam,” drowning out all other communication with
their irrelevant repetitive song.[307]
Spam is typified by its being unsolicited and repetitive as well as by its tendency to
drown out other communication. Compared with other forms of advertising, spam has
been distinguished as a negative externality. This means that it imposes upon a party a
cost despite such party’s not having chosen to engage in any activity that engenders
such cost. Thus:
How does spam differ from legitimate advertising? If you enjoy watching network
television, using a social networking site, or checking stock quotes online, you know that
you will be subjected to advertisements, many of which you may find relevant or even
annoying. Google, Yahoo!, Microsoft, Facebook, and others provide valuable consumer
services, such as search, news, and email, supported entirely by advertising revenue.
While people may resent advertising, most consumers accept that advertising is a price
they pay for access to content and services that they value. By contrast, unsolicited
commercial email imposes a negative externality on consumers without any market-
mediated benefit, and without the opportunity to opt-out.[308]
The noxious effects of spam are clearly demonstrable. Any email user knows the
annoyance of having to sift through several spam messages in a seemingly never ending
quest to weed them out. Moreover, while certain spam messages are readily
identifiable, a significant number are designed (or disguised) in such a way as to make a
user think that they contain legitimate content.

For instance, spam emails are given titles or headings like, “Please update your
information,” “Conference Invitation,” “Please Confirm,” “Alert,” “Hello My Dearest,”
and “Unclaimed Check.” Spam messages also make reference to current events and civic
causes.

Similarly, spam messages disguise themselves as coming from legitimate sources by

using subtle or inconspicuous alterations in sender information. Thus, a letter “i,” which
appears in the middle of a word, is replaced with the number “1,” a letter “o” may be
replaced with the number zero; a spam message may be made to appear to come from
the legitimate online financial intermediary PayPal, when in fact, the sending address is
“paypol.com”. At times, entirely false names are used, making spam messages appear to
come from relatively unfamiliar but ostensibly legitimate senders such as low-key
government agencies or civic organizations. As noted by Cisco Systems: “The content in
the message looks and sounds much more legitimate and professional than it used to.
Spam often closely mimics legitimate senders' messages—not just in style but by
‘spoofing’ the sender information, making it look like it comes from a reputable
sender.”[309]
The damage cost by spamming is manifest in calculable financial and economic costs
and not just in the nebulous vexation it causes users. IT research firm Nuclear Research
found that as far back as eleven (11) years ago, in 2003, an average employee receives
13.3 spam messages a day. Moreover, a person may spend as much as ninety (90)
minutes a day managing spam. This translates to 1.4% lost productivity per person per
year and an average cost of US$ 874 per employee per year.[310] A 2012 study also noted
that some US$20 billion is spent annually to fend off unwanted email with US$6 billion
spent annually on anti-spam software.[311]

Apart from being associated with the vexation of users and costs undermining
productivity and efficiency, spamming is also a means for actually attacking IT systems.
The 2000 attack of the “I Love You” Worm, which was earlier noted in this opinion, was
committed through means of email messages sent out to a multitude of users. While
defensive technologies against spamming have been developed (e.g., IP blacklisting,
crowd sourcing, and machine learning), spammers have likewise improved on their
mechanisms. The present situation is thus indicative of escalation, an arms race playing
out in cyberspace. As is typical of escalation, the capacity of spammers to inflict damage
has significantly increased. In 2003, spamming botnets began to be used, thereby
enabling the spread of malware (i.e., malicious software):
Blacklists gradually made it impossible for spammers to use their own servers (or others’
open relay servers) with fixed IP addresses. Spammers responded with a “Whack-a-
Mole” strategy, popping up with a new computer IP address every time the old one got
shut down. This strategy was observed and named as early as 1996, and eventually
became considerably cheaper with another major innovation in spam: the botnet.

A botnet is a network of “zombie” computers infected by a piece of malicious software

(or “malware”) designed to enslave them to a master computer. The malware gets
installed in a variety of ways, such as when a user clicks on an ad promising “free
ringtones.” The infected computers are organized in a militaristic hierarchy, where early
zombies try to infect additional downstream computers and become middle managers
who transmit commands from the central “command and control” servers down to the
frontline computers

The first spamming botnets appeared in 2003. Static blacklists are powerless against
botnets. In a botnet, spam emails originate from tens of thousands of IP addresses that
are constantly changing because most individual consumers have their IP addresses
dynamically allocated by Dynamic Host Control Protocol (DHCP). Dynamic blacklisting
approaches have since been developed; Stone-Gross, Holz, Stringhini, and Vigna (2011)
document that 90 percent of zombie computers are blacklisted before the end of each
day. However, if the cable company assignsa zombie computer a new IP address each
day, that computer gets a fresh start and can once again successfully send out spam.[312]
Spam’s capacity to deceive recipients through false and misleading headers, content,
and senders likewise makes it a viable means for phishing and identity theft, thereby
enabling spammers to gain control of user accounts (e.g., online banking, social
networking). This is demonstrated by the case of Jeffrey Brett Goodin, the first person to
be convicted under the United States’ Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (more briefly and popularly known as the CAN-
SPAM Act). Goodin was found guilty of sending emails to users of America Online (AOL).
Posing as someone from AOL’s billing department, his emails directed users to go to
websites operated by Goodin himself. On the pretense that information was necessary
to prevent the termination of their AOL services, these websites prompted users to
supply personal and credit card information. This, in turn, enabled Goodin to engage in
fraudulent transactions.[313]

There can be no more direct way of curtailing spamming and its deleterious effects than
by prohibiting the “transmission of commercial electronic communication with the use
of computer system which seek to advertise, sell, or offer for sale products and
services”,[314] unless falling under any of the enumerated exceptions, as Section 4(c)(3)
does. The preceding discussion has clearly demonstrated the extent to which spamming
engenders or otherwise facilitates vexation, intrusions, larceny, deception, violence, and
economic damage. Spamming represents a hazard, and its riddance will entail the
concomitant curtailment of the perils it entails.

VIII (D)

The Provision is Narrowly Drawn

Section 4(c)(3) is phrased in a manner that is sufficiently narrow. It is not a blanket

prohibition of the “transmission of commercial electronic communication with the use
of computer system which seek to advertise, sell, or offer for sale products and
services.”[315] Quite the contrary, it recognizes instances in which commercial
information may be validly disseminated electronically. It provides multiple instances in
which such communications are not prohibited.

First, when there is prior affirmative consent from the recipient.

Second, when it is primarily in the nature of a service and/or administrative

announcement sent by a service provider to its clients.

Third, when there is a means to opt out of receiving such communication, such
communication not being deceptive in that it purposely disguises its source or does
not purposely contain misleading information.

The first exception, far from curtailing free commercial expression, actually recognizes
it. It vests upon the parties to a communication, albeit with emphasis on the receiver,
the freedom to will for themselves if the transmission of communication shall be
facilitated.

The second exception recognizes that there are instances when a service provider must
necessarily disseminate information (with or without the recipient’s consent) to ensure
the effective functioning and client’s use of its services.

The third exception directly deals with intentionally deceptive spam that intends to
ensnare users by not allowing them to opt out of receiving messages.

Section 4(c)(3) merely provides parameters to ensure that the dissemination of

commercial information online is done in a manner that is not injurious to others. For as
long as they are not vexatious (i.e., prior affirmative consent and opt-out requirement)
or misleading, to the extent that they are not intrusive on their recipients, they may
continue to be validly disseminated.

The opt-out provision provides the balance. Others may have as much right to speak
about their products and exaggerate as they offer to make a commercial transaction.
But that right is not an entitlement to vex others by their repetitive and insistent efforts
to insist that others listen even if the customer has already declined. Commercial speech
is protected only until it ceases to inform.

A FINAL NOTE
“Section 4. No law shall be passed abridging the freedom of speech, of expression or of
the press x x x”
Rather than act with tempered but decisive vigilance for the protection of these rights,
we have precariously perched the freedoms of our people on faith that those who are
powerful and influential will not use the overly broad provisions that prohibit libel,
cyber libel, and cybersex against their interests. We have exposed those that rely on our
succor to the perils of retaliation because we stayed our hand in declaring libel
provisions as unconstitutional. By diminishing the carefully drawn jurisprudential
boundaries of what is obscene and what is not, we have allowed the state to unleash
the dominant patriarchal notions of “lascivious” to police sexual expression.

On the other hand, the majority has opted to strike down what appears to be narrowly
tailored protections against unsolicited commercial communication through cyberspace.
I decline to endow this kind of speech — the commercial and the corporate — with
more value. The balance struck by the majority in this case weighs more heavily towards
those who have more resources and are more powerful. We have put the balance in
favor of what is in the hegemony. Legitimate dissent will be endangered.

That, to me, is not what the Constitution says.

The Constitution protects expression. It affirms dissent. The Constitution valorizes

messages and memes at the margins of our society. The Constitution also insists that we
will cease to become a democratic society when we diminish our tolerance for the raw
and dramatically delivered idea, the uncouth defamatory remark, and the occasional
lascivious representations of ourselves.

What may seem odd to the majority may perhaps be the very kernel that unlocks our
collective creativity.

ACCORDINGLY, I vote to declare as unconstitutional for being overbroad and violative

of Article III, Section 4 of the Constitution the following provisions of Republic Act No.
10175 or the Cybercrime Prevention Act of 2012:

(a) The entire Section 19 or the “take down” provision;

(b) The entire Section 4(c)(4) on cyber libel as well as Articles 353, 354, and 355 on libel
of the Revised Penal Code;
(c) The entire Section 4(c)(1) on cybersex;
(d) Section 5 as it relates to Sections 4(c)(1) and 4(c)(4);
(e) Section 6 as it increases the penalties to Sections 4(c)(1) and 4(c)(4);
(f) Section 7 as it allows impermissibly countless prosecution of Sections 4(c)(1) and
 4(c)(4); and
(g) Section 12 on warrantless real-time traffic data surveillance.

I dissent with the majority in its finding that Section 4(c)(3) on Unsolicited Commercial
Advertising is unconstitutional.

I vote to dismiss the rest of the constitutional challenges against the other provisions
in Republic Act No. 10175 as raised in the consolidated petitions for not being
justiciable in the absence of an actual case or controversy.

[1]
 Rep. Act No. 10175, sec. 1. The law was the product of Senate Bill No. 2796 and House
Bill No. 5808.

[2]
 Consti., art. VIII, sec. 1 which provides the following:

Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of Government.

[3]
 Consti., art. VIII, sec. 1.

[4]
 Consti., art. VIII, sec. 1.

[5]
 Tanada v. Cuenco, G.R. No. L-10520, 100 Phil. 1101 (1957) [Per J. Concepcion, En
Banc].

[6]
 Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil.
806, 809 (1955) [Per J. Bengzon, En Banc].

[7]
 Levy Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993, 224
SCRA 236, 242 [Per CJ Davide, Jr., En Banc].

[8]
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc].

[9]
 Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc], citing
Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91 (2007) [Per J.
Tinga, Second Division].

[10]
 499 Phil. 281 (2005) [Per C.J. Panganiban, En Banc].

[11]
 Id. at 304-305.

[12]
 G.R. No. 187883, June 16, 2009, 589 SCRA 356 [Per C.J. Puno, En Banc].
[13]
 Id. at 357-358.

[14]
 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

[15]
 Id. at 158.

[16]
 G.R. No. 204603, September 24, 2013 [Per J. Perlas-Bernabe, En Banc].

[17]
 Id.

[18]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc].

[19]
 Id. at 179.

[20]
 D. MACLEAN, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[21]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[22]
 'Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[23]
 Id.

[24]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[25]
 Id.

[26]
 Id. at 3.

[27]
 Id.

[28]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 282
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[29]
 ‘Brief History of the Internet’, p. 4 <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[30]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 278
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[31]
 Id.

[32]
 Id. at 279.

[33]
 Id.

[34]
 Id. Government or state-run.

[35]
 Id.

[36]
 Id.

[37]
 Id. at 282.

[38]
 Id. at 280.

[39]
 Some call this “generativity”, i.e. “a system’s capacity to produce unanticipated
change through unfiltered contributions from broad and varied audiences.” J. L.
ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 70 (2008).

[40]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

[41]
 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-
internet/history-internet/brief-history-internet> (visited October 16, 2013).

[42]
 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[43]
 ‘‘Measuring the Information Society 2012’, International Telecommunication Union,
2012, Geneva, Switzerland, 6-7 <http://www.itu.int/en/ITU-
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited
October 16, 2013). The International Telecommunication Union (ITU) is the United
Nations’ specialized agency for information and communication technologies (ICTs).

[44]
 Id. at 10.

[45]
 “In the ‘Internet of things,’ objects such as household appliances, vehicles, power and
water meters, medicines or even personal belongings such as clothes, will be capable of
being assigned an IP address, and of identifying themselves and communicating using
technology such as RFID and NFC.” ‘Comprehensive Study on Cybercrime’ prepared by
United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on
Cybercrime, February 2013, 2
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[46]
 Id.

[47]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 2
<http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/Documents/
cyber-crime.pdf> (visited October 16, 2013).

[48]
 The Global Internet User Survey is “[a] worldwide survey of more than 10,000
Internet users in 20 countries conducted by the Internet Society revealed attitudes
towards the Internet and user behavior online. The Global Internet User Survey is one of
the broadest surveys of Internet user attitudes on key issues facing the Internet. This
year's survey covered areas such as how users manage personal information online,
attitudes toward the Internet and human rights, censorship, and the potential for the
Internet to address issues such as economic development and education.” The results
are available at <https://www.Internetsociety.org/news/global-Internet-user-survey-
reveals-attitudes-usage-and-behavior> (visited October 16, 2013). See also ‘Global
Internet User Survey 2012’
<https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-
20121120_0.pdf> (visited October 16, 2013).

[49]
 ‘Measuring the Information Society 2012’, International Telecommunication Union,
2012, Geneva, Switzerland, 7 <http://www.itu.int/en/ITU-
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited
October 16, 2013).

[50]
 Id.

[51]
 Id. at 10.

[52]
 ‘Global Internet User Survey 2012’
<https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-
20121120_0.pdf> (visited October 16, 2013).

[53]
 Id.

[54]
 ‘The State of Broadband 2012: Achieving Digital Inclusion for All’, Report prepared by
the Broadband Commission for Digital Development, September 2012, 23
<http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited
October 16, 2013).

[55]
 As cited by the Broadband Commission for Digital Development in ‘The State of
Broadband 2012: Achieving Digital Inclusion for All’. The Broadband Commission was set
up by the ITU and the United Nations Educational, Scientific and Cultural Organization
(UNESCO) pursuant to the Millennium Development Goals (MDGs), 78
<http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited
October 16, 2013).
[56]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 96-97 (2008).

[57]
 “The term is said to have been coined in 1991 by D. James Bidzos, the then-president
of RSA Data Security, when he said that the government’s digital signature standard
provided ‘no assurance that foreign governments cannot break the system, running the
risk of a digital Pearl Harbor.’ x x x The term has since become prominent in public
debate, being employed most notably by former member of the National Security
Council Richard A. Clarke.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO
STOP IT 97 and 275 (2008).

[58]
 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About
Internet Governance’, Background Paper for the ITU Workshop on Internet Governance,
Geneva, February 26-27, 2004, 8
<http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-
internet-governance-background.pdf> (visited October 16, 2013).

[59]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5
<http://www.unodc.org/documents/commissions/CCPCJ_session22/13-
80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).

[60]
 Id. at 6-7.

[61]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 3 (visited October 16, 2013), citing National insecurity, Information
Age, January 26, 2011 and Stuxnet was about what happened next, FT.com, February 16,
2011.

[62]
 “In 1994, the United Nations Manual on the Prevention and Control of Computer
Related Crime noted that fraud by computer manipulation; computer forgery; damage
to or modifications of computer data or programs; unauthorized access to computer
systems and service; and unauthorized reproduction of legally protected computer
programs were common types of computer crime.” ‘Comprehensive Study on
Cybercrime’ prepared by United Nations Office on Drugs and Crime for the
Intergovernmental Expert Group on Cybercrime, February 2013, 5 (visited October 16,
2013).

[63]
 ‘Love bug hacker is Pandacan man, 23’
<http://www.philstar.com/networks/83717/love-bug-hacker-pandacan-man-23>
(visited October 16, 2013).

[64]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 2 (visited October 16, 2013).

[65]
 Id. at 2, citing Cyber attacks: from Facebook to nuclear weapons, The Telegraph,
February 4, 2011; A Good Decade for Cybercrime, McAfee, 2010; Spamhaus on March
10, 2011; PCMeg.com on March 10, 2011; and The cost of cybercrime, Detica, February
2011.
[66]
 ‘McAfee Q4 Threat Report Identifies New Attacks on Mobile Devices; Malware
Growth at All-Time High’
<http://www.mcafee.com/mx/about/news/2011/q1/20110208-01.aspx> (visited
October 16, 2013).

[67]
 Id.

[68]
 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG
International 2014, 6 (visited October 16, 2013)

[69]
 Id., citing The cost of cybercrime, Detica, February 2011.

[70]
 Id., citing Cybercrime in Germany on the rise, DW World, September 7, 2010.

[71]
 Id., citing The cost of cybercrime, Cabinet Office (UK), February 2011.

[72]
 M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH
HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at
<http://ssrn.com/abstract=1844720 (visited October 16, 2013).

[73]
 Id.

[74]
 Id.

[75]
 Id.

[76]
 Johnson, D. R. and D. Post (1995), 'Law and borders: The rise of law in
cyberspace', Stan. L. Rev.,48, 1367, cited in M. Ziewitz and I. Brown, A Prehistory of
Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27
(2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).

[77]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 3-
4 (visited October 16, 2013).

[78]
 R. H. Weber, ‘Accountability in Internet Governance’, University of Zurich Professor,
154 <http://ijclp.net/files/ijclp_web-doc_8-13-2009.pdf> (visited October 16, 2013).

[79]
 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).

[80]
 Id. at 3.

[81]
 Id. at 70.

[82]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
51 (visited October 16, 2013).
[83]
 Id. at 52.

[84]
 Id. at 51-52.

[85]
 Id. at 51.

[86]
 Id. at 53.

[87]
 Id. at 11-12.

[88]
 Id. at 12.

[89]
 Id. at 64.

[90]
 Id.

[91]
 Id. at 67.

[92]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
64 (visited October 16, 2013).

[93]
 African Union, 2012. Draft Convention on the Establishment of a Legal Framework
Conducive to Cybersecurity in Africa.

[94]
 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity
Draft Model Bill.

[95]
 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii)
Model Law on Electronic Evidence.

[96]
 Commonwealth of Independent States, 2001. Agreement on Cooperation in
Combating Offences related to Computer Information.

[97]
 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the
Convention on Cybercrime, concerning the criminalisation of acts of a racist and
xenophobic nature committed through computer systems.

[98]
 Council of Europe, 2007. Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.

[99]
 Economic Community of West African States (ECOWAS), 2009. Draft Directive on
Fighting Cybercrime within ECOWAS.

[100]
 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks
against information systems.

[101]
 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the
European Parliament and of the Council on attacks against information systems and
repealing Council Framework Decision 2005/222/JHA.

[102]
 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud
and counterfeiting of non-cash means of payment.

[103]
 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the
Council on combating the sexual abuse and sexual exploitation of children and child
pornography, and replacing Council Framework Decision 2004/68/JHA and European
Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council
concerning the processing of personal data and the protection of privacy in the
electronic communications sector.

[104]
 International Telecommunication Union (ITU)/Caribbean Community
(CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative
Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

[105]
 League of Arab States, 2010. Arab Convention on Combating Information Technology
Offences.

[106]
 League of Arab States, 2004. Model Arab Law on Combating Offences related to
Information Technology Systems.

[107]
 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of
International Information Security.

[108]
 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution, and child pornography.

[109]
 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs
and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013,
12 (visited October 16, 2013).

[110]
 The United Nations Convention Against Corruption “does not define ‘corruption’, but
rather obliges States Parties to criminalize a specific set of conduct which can be more
effectively described.” ‘Comprehensive Study on Cybercrime’ prepared by United
Nations Office on Drugs and Crime for the Intergovernmental Expert Group on
Cybercrime, February 2013, 12 (visited October 16, 2013).

[111]
 Id.

[112]
 Id. at 16.

[113]
 Id.

[114]
 Id.

[115]
 Id.

[116]
 Id. at 70.
[117]
 Id.

[118]
 African Union, 2012. Draft Convention on the Establishment of a Legal Framework
Conducive to Cybersecurity in Africa.

[119]
 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity
Draft Model Bill.

[120]
 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii)
Model Law on Electronic Evidence.

[121]
 Commonwealth of Independent States, 2001. Agreement on Cooperation in
Combating Offences related to Computer Information.

[122]
 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the
Convention on Cybercrime, concerning the criminalisation of acts of a racist and
xenophobic nature committed through computer systems.

[123]
 Council of Europe, 2007. Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.

[124]
 Economic Community of West African States (ECOWAS), 2009. Draft Directive on
Fighting Cybercrime within ECOWAS.

[125]
 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks
against information systems.

[126]
 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the
European Parliament and of the Council on attacks against information systems and
repealing Council Framework Decision 2005/222/JHA.

[127]
 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud
and counterfeiting of non-cash means of payment.

[128]
 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the
Council on combating the sexual abuse and sexual exploitation of children and child
pornography, and replacing Council Framework Decision 2004/68/JHA and European
Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council
concerning the processing of personal data and the protection of privacy in the
electronic communications sector.

[129]
 International Telecommunication Union (ITU)/Caribbean Community
(CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative
Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.

[130]
 League of Arab States, 2010. Arab Convention on Combating Information Technology
Offences.
[131]
 League of Arab States, 2004. Model Arab Law on Combating Offences related to
Information Technology Systems.

[132]
 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of
International Information Security.

[133]
 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution, and child pornography.

[134]
 400 Phil. 904 (2002) [Per Curiam, En Banc].

[135]
 See the Separate Opinion of Justice Mendoza in Cruz v. Secretary of Environment
and Natural Resources, 400 Phil. 904,1092 (2002) [Per Curiam, En Banc].

[136]
 See the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421
Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc] citing Gooding v. Wilson, 405 U.S.
518, 521, 31 L.Ed.2d 408, 413 (1972); United States v. Salerno, 481 U.S. 739, 745, 95
L.Ed.2d 697, 707 (1987); People v. De la Piedra, 403 Phil. 31 (2001); Broadrick v.
Oklahoma, 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973); Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369
(1982); United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960); Yazoo &
Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).

[137]
 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].

[138]
 David v. Arroyo, 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc] citing the
Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-
432 (2001) [Per J. Bellosillo, En Banc]; Broadrick v. Oklahoma, 413 U.S. 601
(1973); Younger v. Harris, 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971); United States
v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox,
492 U.S. 469, 106 L.Ed.2d 388 (1989).

[139]
 479 Phil. 265 (2004) [Per J. Panganiban, En Banc].

[140]
 576 Phil. 357 (2008) [Per J. Chico-Nazario, En Banc].

[141]
 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc].

[142]
 Romualdez v. Commission on Elections, G.R. No. 167011, December 11, 2008, 573
SCRA 639, 645 [Per J. Chico-Nazario, En Banc].

[143]
 G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].

[144]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 186-189 [Per J. Carpio-Morales, En Banc], citing
David v. Macapagal-Arroyo, 489 SCRA 160, 239 (2006) [Per J. Sandoval-Gutierrez, En
Banc]; Romualdez v. Commission on Elections, 573 SCRA 639 (2008) [Per J. Chico-
Nazario, En Banc]; Estrada v. Sandiganbayan, Phil. 290 (2001) [Per J. Bellosillo, En Banc];
Consti., art. III, sec. 4; People v. Siton, 600 SCRA 476, 485 (2009) [Per J. Ynares-Santiago,
En Banc]; Virginia v. Hicks, 539 U.S. 113, 156 L. Ed. 2d 148 (2003); Gooding v. Wilson,
405 U.S. 518, 31 L. Ed 2d 408 (1972).

[145]
 151-A Phil. 656 (1973) [Per J. Makasiar, En Banc].

[146]
 Philippine Blooming Mills Employment Organization et al v. Philippine Blooming
Mills, Co. Inc., 151-A Phil. 656, 674-676 (1973) [Per J. Makasiar, En Banc].

[147]
 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

[148]
 Chavez v. Gonzales, 569 Phil. 155, 197-198 (2008) [Per C.J. Puno, En Banc].

[149]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010, 632 SCRA 146, 185 [Per J. Carpio-Morales, En Banc].

[150]
 344 U.S. 183 (1952).

[151]
 Wieman v. Updegraff, 344 U.S. 183, 195 (1952).

[152]
 376 U.S. 254 (1964).

[153]
 New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

[154]
 371 U.S. 415 (1963).

[155]
 National Association for the Advancement of Colored People v. Button, 371 U.S. 415,
431-433 (1963).

[156]
 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].

[157]
 Chavez v. Gonzales, 569 Phil. 155, 219-221 (2008) [Per C.J. Puno, En Banc].

[158]
 Ponencia, J. Abad, p. 24.

[159]
 13 Phil. 690 (1918) [Per J. Johnson].

[160]
 “An Act defining the law of libel and threats to publish a libel, making libel and
threats to publish a libel misdemeanors, giving a right of civil action therefor, and
making obscene or indecent publications misdemeanors.” This was repealed by the
Revised Penal Code via Article 367, Repealing Clause.

[161]
 U.S. v. Bustos, 13 Phil. 690, 698 (1918) [Per J. Johnson].

[162]
 New York Times v. Sullivan, 376 U.S. 254 (1964).

[163]
 See Lopez v. Court of Appeals, 145 Phil. 219 (1970) [Per J. Fernando, En
Banc]; Mercado v. Court of First Instance, 201 Phil. 565 (1982) [Per J. Fernando, Second
Division]; and Adiong vs. Commission on Elections, G.R. No. 103956, March 31, 1992,
207 SCRA 712 [Per J. Gutierrez, En Banc].
[164]
 Actual malice may mean that it was with the “knowledge that it was false or with
reckless disregard of whether it was false or not.” See New York Times v. Sullivan, 376
U.S. 254, 268 (1964).

[165]
 New York Times v. Sullivan, 376 U.S. 254, 268 (1964).

[166]
 Id. at 281-282.

[167]
 Id. at 269-273.

[168]
 243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].

[169]
 361 Phil. 1 (1999) [Per J. Bellosillo, Second Division].

[170]
 Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M.
Capulong, 243 Phil. 1007, 1018-1019 (1988) [Per J. Feliciano, En Banc].

[171]
 Id. at 1023-1024, citing Professors William Lloyd Prosser and W. Page Keeton,
Prosser and Keeton on Torts, 5th ed. at 859–861 (1984).

[172]
 373 Phil. 238 (1999) [Per J. Mendoza, En Banc].

[173]
 Id. at 250-255.

[174]
 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

[175]
 Id. at 221-222.

[176]
 G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].

[177]
 Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA
1, 15 [Per J. Quisumbing, Second Division].

[178]
 Estrada v. Sandiganbayan, 421 Phil. 290, 353 (2001) [Per J. Bellosillo, En Banc] citing
NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker, 364
U.S. 479, 5 L.Ed.2d 231 (1960).

[179]
 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.

[180]
 Revised Penal Code, Art. 353.

[181]
 Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.

[182]
 Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
[183]
 Art. 21. Any person who wilfully causes loss or injury to another in manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

[184]
 Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though they
may not constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc., v. Islamic Da’wah
Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]. Justice
Carpio was of the view that the defamatory article published in the case fell under
Article 26 of the Civil Code.

[185]
 See Tucker, C. and A. Matthews, Social Networks, Advertising and Antitrust, in
GEORGE MASON LAW REVIEW, 19 Geo. Mason L. Rev. 1211, 1214.

[186]
 See <http://www2.uncp.edu/home/acurtis/NewMedia/SocialMedia/SocialMediaHist
ory.html> (visited February 19, 2014).

[187]
 See <http://im.about.com/od/imbasics/a/imhistory_3.htm> (visited February 19,
2014).

[188]
 See <http://www.friendsreunited.com/About> (visited February 19, 2014).

[189]
 D. Garcia, P. Mavrodiev, and F. Schweitzer, Social Resilience in Online Communities:
The Autopsy of Friendster. Available at <http://arxiv.org/pdf/1302.6109v1.pdf> (visited
February 19, 2014).

[190]
 See <http://www.huffingtonpost.com/2011/06/29/myspace-history-
timeline_n_887059.html#s299557&title=July_2006_Number> (visited February 19,
2014).

[191]
 See S. Davis, STUDENT COMMENT: Social Media Activity & the Workplace: Updating
the Status of Social Media, 39 Ohio N.U.L. Rev. 359, 361.

[192]
 See <http://venturebeat.com/2013/09/16/how-twitter-plans-to-make-its-750m-
users-like-its-250m-real-users/> (visited February 19, 2014).
[193]
 See <http://abcnews.go.com/Business/twitter-ipo-filing-reveals-500-million-tweets-
day/story?id=20460493> (visited February 19, 2014).

[194]
 See <http://sourcedigit.com/4023-instagram-timeline-history/> (visited February 19,
2014).

[195]
 Guingguing v. Court of Appeals, 508 Phil. 193 (2005) [Per J. Tinga, Second Division].

[196]
 Guingguing v. Court of Appeals, 508 Phil. 193, 204-206 (2005) [Per J. Tinga, Second
Division], citing New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).

[197]
 Id. at 207.

[198]
 376 U.S. 254 (1964).

[199]
 New York Times v. Sullivan, 376 U.S. 254, 281-282 (1964).

[200]
 See Guingguing v. Court of Appeals, 508 Phil. 193, 209-211 (2005) [Per J. Tinga,
Second Division], citing Garrison v. Louisiana, 379 U.S. 64 (1964) and Curtis Publishing
Co. v. Butts, 388 U.S. 130, 163-164 (1967), CJ Warren, concurring.

[201]
 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 70 (2008).

[202]
 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 17-18 (2008).

[203]
 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 71 (2008).

[204]
 18 Phil. 1 (1910) [Per J. Johnson].

[205]
 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 18 (2008) citing
People v. Del Rosario, 86 Phil. 163 (1950).

[206]
 These include cases that resolved the issue of guilt for the offense as well as cases
that tackled procedural or jurisdictional issues and remanded the main issue to the trial
court.

[207]
 See Magno v. People, 516 Phil. 72 (2006) [Per J. Garcia, Second Division]; See also
MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230
(2004) [Per J. Bellosillo, En Banc]; Villamar-Sandoval v. Cailipan, G.R. No. 200727, March
4, 2013, 692 SCRA 339 (2013) [Per J. Perlas-Bernabe, Second Division].

[208]
 R. Pangalangan, Libel as Politics, in Libel as Politics 11 (2008). Note, however, our
ruling in Crespo v. Mogul, 235 Phil. 465 (1987), where we said that, “it is the duty of the
fiscal to proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the accused
should be convicted or acquitted. x x x The rule therefore in this jurisdiction is that once
a complaint or information is filed in Court any disposition of the case as its dismissal or
the conviction or acquittal of the accused rests in the sound discretion of the Court.”
[209]
 See Brillante v. Court of Appeals, 483 Phil. 568 (2004) [Per J. Tinga, Second Division];
Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1
[Per J. Quisumbing, Second Division].

[210]
 See Yuchengco v. Manila Chronicle Publishing Corporation, G.R. No. 184315,
November 25, 2009, 605 SCRA 684 [Per J. Chico-Nazario, Third Division]; Bonifacio v.
Regional Trial Court of Makati, Branch 149, G.R. No. 184800, May 5, 2010, 620 SCRA 268
[Per J. Carpio-Morales, First Division]. This case involved allegedly libelous articles
published in websites.

[211]
 See Buatis v. People, 520 Phil. 149 (2006) [Per J. Austria-Martinez, First Division]; See
also Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division]; and Fortun
v. Quinsayas, G.R. No. 194578, February 13, 2013, 690 SCRA 623 [Per J. Carpio, Second
Division]. This case originated as a special civil action for contempt involving Atty. Sigfrid
A. Fortun and several media outfits. However, this court expanded the concept of public
figures to lawyers, stating that lawyers of high-profile cases involving public concern
become public figures.

[212]
 See Fermin v. People, G.R. No. 157643, March 28, 2008, 550 SCRA 132 [Per J.
Nachura, Third Division]; Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24,
2012, 684 SCRA 521 [Per J. Peralta, Third Division].

[213]
 See Banal III v. Panganiban, 511 Phil. 605 (2005) [Per J. Ynares-Santiago, First
Division]. See also Insular Life Assurance Company, Limited v. Serrano, 552 Phil. 469
(2007) [Per C.J. Puno, First Division].

[214]
 See Lagaya v. People, G.R. No. 176251, July 25, 2012, 677 SCRA 478 [Per J. Del
Castillo, First Division]; Lopez v. People, G.R. No. 172203, February 14, 2011 642 SCRA
668 [Per J. Del Castillo, First Division]; Binay v. Secretary of Justice, 532 Phil. 742 (2006)
[Per J. Ynares-Santiago, First Division]; See also Jalandoni v. Drilon, 383 Phil. 855 (2000)
[Per J. Buena, Second Division]; Macasaet v. Co, Jr., G.R. No. 156759, June 5, 2013, 697
SCRA 187; Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division].

[215]
 See Yambot v. Tuquero, G.R. No. 169895, March 23, 2011, 646 SCRA 249 [Per J.
Leonardo-De Castro, First Division].

[216]
 Guingguing v. Court of Appeals, 508 Phil. 193, 214 (2005), citing Garrison, 379 U.S.
64 (1964). This court in Guingguing said that:
Lest the impression be laid that criminal libel law was rendered extinct in regards to
public officials, the Court made this important qualification in Garrison:

The use of calculated falsehood, however, would put a different cast on the
constitutional question. Although honest utterance, even if inaccurate, may further the
fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like immunity. At the time
the First Amendment was adopted, as today, there were those unscrupulous enough
and skillful enough to use the deliberate or reckless falsehood as an effective political
tool to unseat the public servant or even topple an administration. That speech is used
as a tool for political ends does not automatically bring it under the protective mantle of
the Constitution. For the use of the known lie as a tool is at once with odds with the
premises of democratic government and with the orderly manner in which economic,
social, or political change is to be effected.
[217]
 See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc. v. Islamic
Da’wah Council of the Philippines, Inc. 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]
where he opined that the defamatory article published in the case falls under Article 26
of the Civil Code.

Article 26. Every person shall respect the dignity, personality, privacy and peace of mind
of his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention
and other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

[218]
 Globe Mackay Cable and Radio Corp. v. Court of Appeals, 257 Phil. 783, 783-785
(1989) [Per J. Cortes, Third Division].

[219]
 Philippine Journalists, Inc. (People’s Journal) v. Thoenen, 513 Phil. 607, 625 (2005)
[Per J. Chico-Nazario, Second Division], citing Garrison v. Louisiana, 379 US 64 (1964),
which in turn cited Justice Stewart’s concurring opinion in Rosenblatt v. Baer, 383 US 75
(1966).

[220]
 Ponencia, J. Abad, 17-18. Citations omitted.

[221]
 Id. at 18.

[222]
 Pita v. Court of Appeals, 258-A Phil. 134, 146 (1989) [Per J. Sarmiento, En
Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 416 (2006) [Per J.
Quisumbing, Third Division].

[223]
 Id., citing Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the
movie version in Lady Chatterley's Lover.

[224]
 Id. at 146.

[225]
 Id. at 147.

[226]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].

[227]
 354 US 476, 487 (1957).
[228]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985).

[229]
 413 US 15 (1973).

[230]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],
cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006) [Per J. Quisumbing,
Third Division].

[231]
 Id., cited in Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) and cited in
Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006).

[232]
 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc].

[233]
 539 Phil. 407, 417 [Per J. Quisumbing, Third Division].

[234]
 G.R. No. 164785 and G.R. No. 165636, April 29, 2009, 587 SCRA 79 [Per J. Velasco, En
Banc].

[235]
 Id. at 101.

[236]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985) [Per C.J. Fernando, En Banc].

[237]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

[238]
 Rep. Act No. 10175, sec. 4(c)(1).

[239]
 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],

[240]
 Rep. Act No. 10175, sec. 4(c)(1).

[241]
 354 US 476 (1957).

[242]
 Id.

[243]
 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 233 (1985) [Per C.J. Fernando, En Banc].

[244]
 See C. MacKinnon, ONLY WORDS (1993).

[245]
 Id. at 14.

[246]
 Id. at 14-15, 89-90.

[247]
 Id. at 14-15, 88-91. Catharine MacKinnon and Andrea Dworkin proposed a law that
defines pornography as “graphic sexually explicit materials that subordinate women
through pictures or words,” p. 22.

[248]
 Id. at 9.

[249]
 Id. at 87-88.
[250]
 Id at 87. See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in
DOING ETHICS 303 (2009).

[251]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 301.

[252]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 309.

[253]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics.

[254]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 300-302.

[255]
 See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography,
Civil Rights, and Speech, in Doing Ethics 301-302, 307.

[256]
 Baker, E. C. REVIEW: Of Course, More Than Words. Only Words. Catharine A.
MacKinnon. 61 U. Chi. L. Rev. 1181 (1994) 1197.

[257]
 Id.

[258]
 Id.

[259]
 Id.

[260]
 Id. at 1194.

[261]
 Id. at 1197-1211.

[262]
 Id. at 1199.

[263]
 Id. at 1203.

[264]
 Id. at 1204.

[265]
 Id.

[266]
 C. Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in J. Rosen
and B. Wittes, eds., Constitution 3.0, 23 (2011), citing Justice Douglas in Papachristou v
Jacksonville, 405 U.S. 156, 164 (1972) and W. H. Rehnquist, Is an Expanded Right of
Privacy Consistent with Fair and Effective Law Enforcement?; or Privacy, You’ve Come a
Long Way, Baby, 23 Kansas Law Review 1, 9 (1974).

[267]
 G.R. No. 103956, March 31, 1992, 207 SCRA 712.

[268]
 Id. at 719-720.
[269]
 535 Phil. 687 (2006).

[270]
 Id. at 714-715.

[271]
 See for instance J. Rosen et al., CONSTITUTION 3.0 FREEDOM AND TECHNOLOGICAL
CHANGE (2011).

[272]
 See E.C. Baker, ‘Autonomy and Informational Privacy, or Gossip: The Central
Meaning of the First Amendment’, (visited February 21, 2014).

[273]
 367 Phil. 703 (1999).

[274]
 Id. at 715.

[275]
 G.R. No. 164815, September 3, 2009, 598 SCRA 41.

[276]
 Id. at 59.

[277]
 259 Phil. 541 (1989).

[278]
 Id. at 549.

[279]
 G.R. No. 95902, February 4, 1992, 205 SCRA 791.

[280]
 Id. at 798.

[281]
 G.R. No. 86218, September 18, 1992, 214 SCRA 63.

[282]
 Id. at 68-69.

[283]
 G.R. No. 105834, February 13, 1995, 241 SCRA 277.

[284]
 Id. at 283-284.

[285]
 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.

[286]
 Id. at 728-729.

[287]
 Rep. Act No. 10173, otherwise known as the “Data Privacy Act of 2012.?

[288]
 Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session

[289]
 Id. at 279.

[290]
 328 Phil. 893 (1996) [Per J. Puno, En Banc].

[291]
 Id. at 933. “Presently in the United States, the clear and present danger test is not
applied to protect low value speeches such as obscene speech, commercial speech and
defamation.”

[292]
 561 Phil. 386 (2007) [En Banc].

[293]
 Id. at 449.

[294]
 Id. at 449-450.

[295]
 569 Phil. 155 (2008) [En Banc].

[296]
 Id. at 237.

[297]
 Id.

[298]
 Id. at 244.

[299]
 Id.

[300]
 Page 14 of Justice Roberto Abad’s February 7, 2014 draft.

[301]
 Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980)
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557>
(visited February 13, 2014).

[302]
 Id.

[303]
 Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976)
<http://caselaw.lp.findlaw.com/cgi bin/getcase.pl?
friend=llrx&navby=volpage&court=us&vol=425&page=765> (visited February 21, 2014).

[304]
 Id.

[305]
 Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980)
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557>
(visited February 13, 2014).

[306]
 Id. There are contrary opinions, but their reasoning is not as cogent. As explained by
Justice Clarence Thomas in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996): I do not see a philosophical or historical basis for asserting that
"commercial" speech is of "lower value" than "noncommercial" speech. Indeed, some
historical materials suggest the contrary.

As noted by Aaron A. Scmoll, referring to the United States Supreme Court Decision
in 44 Liquormart,: “While Stevens and several other Justices seemed willing to apply
strict scrutiny to regulations on truthful advertising, a majority seemed content to
continue down the path Central Hudson created. The strongest reading drawn from 44
Liquormart may be that as to complete bans on commercial speech, the Court will
strictly apply Central Hudson so that in those cases, the analysis resembles strict
scrutiny.” Schmoll, Aaron A. (1998) "Sobriety Test: The Court Walks the Central Hudson
Line Once Again in 44 Liquormart, but Passes on a New First Amendment Review,
"Federal Communications Law Journal: Vol. 50: Iss. 3, Article 11.

[307]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[308]
 Id.

[309]
 ‘The Bad Guys from Outside:
Malware’, http://www.ciscopress.com/articles/article.asp?p=1579061&seqNum=4 (visit
ed February 14, 2014).

[310]
 ‘Spam: The Silent ROI Killer’, < http://www.spamhelp.org/articles/d59.pdf> (visited
February 14, 2014).

[311]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[312]
 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC
PERSPECTIVES, 26(3): 87-110 (2012).

[313]
 ‘California Man Guilty of Defrauding AOL Subscribers, U.S. Says’, (visited February
14, 2014). On spam laws, < http://www.spamlaws.com/aol-phishing.html> (visited
February 14, 2014).

[314]
 Rep. Act No. 10175, sec. 4 (c) (3).

[315]
 Rep. Act No. 10175, sec. 4 (c) (3).

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 c.    Imbong vs. Ochoa, April 8, 2014

732 Phil. 1

EN BANC

[ G.R. No. 204819, April 08, 2014 ]

JAMES M. IMBONG AND LOVELY-ANN C. IMBONG, FOR THEMSELVES AND IN BEHALF

OF THEIR MINOR CHILDREN, LUCIA CARLOS IMBONG AND BERNADETTE CARLOS
IMBONG AND MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., PETITIONERS, VS.
HON. PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, HON. FLORENCIO B. ABAD,
SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT, HON. ENRIQUE T. ONA,
SECRETARY, DEPARTMENT OF HEALTH, HON. ARMIN A. LUISTRO, SECRETARY,
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS AND HON. MANUEL A. ROXAS II,
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. NO. 204934]

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], REPRESENTED BY

ITS PRESIDENT, MARIA CONCEPCION S. NOCHE, SPOUSES REYNALDO S. LUISTRO &
ROSIE B. LUISTRO, JOSE S. SANDEJAS & ELENITA S.A. SANDEJAS, ARTURO M. GORREZ
& MARIETTA C. GORREZ, SALVADOR S. MANTE, JR. & HAZELEEN L. MANTE, ROLANDO
M. BAUTISTA & MARIA FELISA S. BAUTISTA, DESIDERIO RACHO & TRAQUILINA RACHO,
FERNAND ANTONIO A. TANSINGCO & CAROL ANNE C. TANSINGCO FOR THEMSELVES
AND ON BEHALF OF THEIR MINOR CHILDREN, THERESE ANTONETTE C. TANSINGCO,
LORENZO JOSE C. TANSINGCO, MIGUEL FERNANDO C. TANGSINGCO, CARLO
JOSEMARIA C. TANSINGCO & JUAN PAOLO C. TANSINGCO, SPOUSES MARIANO V.
ARANETA & EILEEN Z. ARANETA FOR THEMSELVES AND ON BEHALF OF THEIR MINOR
CHILDREN, RAMON CARLOS Z. ARANETA & MAYA ANGELICA Z. ARANETA, SPOUSES
RENATO C. CASTOR & MILDRED C. CASTOR FOR THEMSELVES AND ON BEHALF OF
THEIR MINOR CHILDREN, RENZ JEFFREY C. CASTOR, JOSEPH RAMIL C. CASTOR, JOHN
PAUL C. CASTOR & RAPHAEL C. CASTOR, SPOUSES ALEXANDER R. RACHO & ZARA Z.
RACHO FOR THEMSELVES AND ON BEHALF OF THEIR MINOR CHILDREN MARGARITA
RACHO, MIKAELA RACHO, MARTIN RACHO, MARI RACHO & MANOLO RACHO,
SPOUSES ALFRED R. RACHO & FRANCINE V. RACHO FOR THEMSELVES AND ON BEHALF
OF THEIR MINOR CHILDREN MICHAEL RACHO, MARIANA RACHO, RAFAEL RACHO,
MAXI RACHO, CHESSIE RACHO & LAURA RACHO, SPOUSES DAVID R. RACHO &
ARMILYN A. RACHO FOR THEMSELVES AND ON BEHALF OF THEIR MINOR CHILD
GABRIEL RACHO, MINDY M. JUATAS AND ON BEHALF OF HER MINOR CHILDREN ELIJAH
 GERALD JUATAS AND ELIAN GABRIEL JUATAS, SALVACION M. MONTEIRO, EMILY R.
LAWS, JOSEPH R. LAWS & KATRINA R. LAWS, PETITIONERS, VS. HON. PAQUITO N.
OCHOA, JR., EXECUTIVE SECRETARY, HON. ENRIQUE T. ONA, SECRETARY,
DEPARTMENT OF HEALTH, HON. ARMIN A. LUISTRO, SECRETARY, DEPARTMENT OF
EDUCATION, CULTURE AND SPORTS, HON. CORAZON SOLIMAN, SECRETARY,
DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT, HON. MANUEL A. ROXAS II,
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, HON. FLORENCIO
B. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT, HON. ARSENIO
M. BALISACAN, SOCIO-ECONOMIC PLANNING SECRETARY AND NEDA DIRECTOR-
GENERAL, THE PHILIPPINE COMMISSION ON WOMEN, REPRESENTED BY ITS
CHAIRPERSON, REMEDIOS IGNACIO-RIKKEN, THE PHILIPPINE HEALTH INSURANCE
CORPORATION, REPRESENTED BY ITS PRESIDENT EDUARDO BANZON, THE LEAGUE OF
PROVINCES OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT ALFONSO UMALI,
THE LEAGUE OF CITIES OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT OSCAR
RODRIGUEZ, AND THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, REPRESENTED
BY ITS PRESIDENT DONATO MARCOS, RESPONDENTS.

[G.R. NO. 204957]

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. AND VALERIANO S. AVILA,
PETITIONERS, VS. HON. PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; HON.
FLORENCIO B. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT;
HON. ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF EDUCATION; AND HON.
MANUEL A. ROXAS II, SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

[G.R. NO. 204988]

SERVE LIFE CAGAYAN DE ORO CITY, INC., REPRESENTED BY DR. NESTOR B. LUMICAO,
M.D., AS PRESIDENT AND IN HIS PERSONAL CAPACITY, ROSEVALE FOUNDATION INC.,
REPRESENTED BY DR. RODRIGO M. ALENTON, M.D., AS MEMBER OF THE SCHOOL
BOARD AND IN HIS PERSONAL CAPACITY, ROSEMARIE R. ALENTON, IMELDA G.
IBARRA, CPA, LOVENIA P. NACES, PHD., ANTHONY G. NAGAC, EARL ANTHONY C.
GAMBE AND MARLON I. YAP, PETITIONERS, VS. OFFICE OF THE PRESIDENT, SENATE OF
THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR.,
EXECUTIVE SECRETARY, HON. FLORENCIO B. ABAD, SECRETARY, DEPARTMENT OF
BUDGET AND MANAGEMENT; HON. ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF
HEALTH; HON. ARMIN A. LUISTRO, SECRETARY, DEPARTMENT OF EDUCATION AND
HON. MANUEL A. ROXAS II, SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

[G.R. NO. 205003]

EXPEDITO A. BUGARIN, JR., PETITIONER, VS. OFFICE OF THE PRESIDENT OF THE

REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF THE
HOUSE OF REPRESENTATIVES AND HON. SOLICITOR GENERAL, RESPONDENTS.

[G.R. NO. 205043 ]

 EDUARDO B. OLAGUER AND THE CATHOLIC XYBRSPACE APOSTOLATE OF THE
PHILIPPINES, PETITIONERS, VS. DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR
SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUEL A.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, RESPONDENTS.

[G.R. NO. 205138]

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), HEREIN REPRESENTED BY ITS

NATIONAL PRESIDENT, ATTY. RICARDO M. RIBO, AND IN HIS OWN BEHALF, ATTY. LINO
E.A. DUMAS, ROMEO B. ALMONTE, OSMUNDO C. ORLANES, ARSENIO Z. MENOR,
SAMUEL J. YAP, JAIME F. MATEO, ROLLY SIGUAN, DANTE E. MAGDANGAL, MICHAEL
EUGENIO O. PLANA, BIENVENIDO C. MIGUEL, JR., LANDRITO M. DIOKNO AND
BALDOMERO FALCONE, PETITIONERS, VS. HON. PAQUITO N. OCHOA, JR., EXECUTIVE
SECRETARY, HON. FLORENCIO B. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND
MANAGEMENT, HON. ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF HEALTH, HON.
ARMIN A. LUISTRO, SECRETARY, DEPARTMENT OF EDUCATION, HON. MANUEL A.
ROXAS II, SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, HON.
CORAZON J. SOLIMAN, SECRETARY, DEPARTMENT OF SOCIAL WELFARE AND
DEVELOPMENT, HON. ARSENIO BALISACAN, DIRECTOR-GENERAL, NATIONAL
ECONOMIC AND DEVELOPMENT AUTHORITY, HON. SUZETTE H. LAZO, DIRECTOR-
GENERAL, FOOD AND DRUGS ADMINISTRATION, THE BOARD OF DIRECTORS,
PHILIPPINE HEALTH INSURANCE CORPORATION, AND THE BOARD OF
COMMISSIONERS, PHILIPPINE COMMISSION ON WOMEN, RESPONDENTS.

[G.R. NO. 205478]

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO,

M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D., COLLECTIVELY KNOWN AS DOCTORS
FOR LIFE, AND ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO
PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, AND GABRIEL DY LIACCO
COLLECTIVELY KNOWN AS FILIPINOS FOR LIFE, PETITIONERS, VS. HON. PAQUITO N.
OCHOA, JR., EXECUTIVE SECRETARY; HON. FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT; HON. ENRIQUE T. ONA, SECRETARY
OF THE DEPARTMENT OF HEALTH; HON. ARMIN A. LUISTRO, SECRETARY OF THE
DEPARTMENT OF EDUCATION; AND HON. MANUEL A. ROXAS II, SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. NO. 205491]

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, FOR
THEMSELVES, THEIR POSTERITY, AND THE REST OF FILIPINO POSTERITY PETITIONERS,
VS. OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, RESPONDENT.

[G.R. NO. 205720]

PRO-LIFE PHILIPPINES FOUNDATION, INC., REPRESENTED BY LORNA MELEGRITO, AS

EXECUTIVE DIRECTOR, AND IN HER PERSONAL CAPACITY, JOSELYN B. BASILIO, ROBERT
Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL
ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III,
PETITIONERS, VS. OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, HON.
FLORENCIO B. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF HEALTH, HON. ARMIN A.
LUISTRO, SECRETARY, DEPARTMENT OF EDUCATION AND HON. MANUEL A. ROXAS II,
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. NO. 206355]

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA

BORROMEO-GARCIA, STELLA ACEDERA, ATTY. BERTENI CATALUÑA CAUSING,
PETITIONERS, VS. OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, RESPONDENTS.

[G.R. NO. 207111]

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS AND LOTA LAT-GUERRERO,
PETITIONERS VS. HON. PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, HON.
FLORENCIO ABAD, SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT, HON.
ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF HEALTH, HON. ARMIN A. LUISTRO,
SECRETARY, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS AND HON. MANUEL
A. ROXAS II, SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
RESPONDENTS.

[G.R. NO. 207172]

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI

SARMIENTO AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS
FRANCIS A. RODRIGO, JR. AND DEBORAH MARIE VERONICA N. RODRIGO.
PETITIONERS, VS. HON. PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, HON.
FLORENCIO B. ABAD, SECRETARY, DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. ENRIQUE T. ONA, SECRETARY, DEPARTMENT OF HEALTH, HON. ARMIN A.
LUISTRO, SECRETARY, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS AND
HON. MANUEL A. ROXAS II, SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, RESPONDENTS.

[G.R. NO. 207563]

ALMARIM CENTI TILLAH AND ABDULHUSSEIN M. KASHIM, PETITIONERS, VS. HON.

PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, HON. ENRIQUE T. ONA, SECRETARY
OF THE DEPARTMENT OF HEALTH, AND HON. ARMIN A. LUISTRO,SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, RESPONDENTS.

DECISION

MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental
law. And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good." [1]

To this day, poverty is still a major stumbling block to the nation’s emergence as a
developed country, leaving our people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social services remains to be a
problem that concerns not only the poor, but every member of society. The government
continues to tread on a trying path to the realization of its very purpose, that is, the
general welfare of the Filipino people and the development of the country as a whole.
The legislative branch, as the main facet of a representative government, endeavors to
enact laws and policies that aim to remedy looming societal woes, while the executive is
closed set to fully implement these measures and bring concrete and substantial
solutions within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that merely casts its watchful eyes
on clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its solemn duty to interpret
legislation vis-à-vis the most vital and enduring principle that holds Philippine society
together — the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population
growth control, abortion and contraception. As in every democratic society,
diametrically opposed views on the subjects and their perceived consequences freely
circulate in various media. From television debates[2] to sticker campaigns,[3] from rallies
by socio-political activists to mass gatherings organized by members of the clergy[4] – the
clash between the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society. Despite calls
to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was
enacted by Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from
various sectors of society came knocking on the doors of the Court, beckoning it to
wield the sword that strikes down constitutional disobedience. Aware of the profound
and lasting impact that its decision may produce, the Court now faces the iuris
controversy as presented in fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:

(1) Petition for Certiorari  and Prohibition,[5] filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and
on behalf of their minor children; and the Magnificat Child Learning Center, Inc., a
domestic, privately-owned educational institution (Imbong);

(2) Petition for Prohibition,[6] filed by the Alliance for the Family Foundation Philippines,
Inc., through its president, Atty. Maria Concepcion S. Noche[7] and several others[8] in
their personal capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,[9] filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari  and Prohibition,[10] filed by Serve Life Cagayan De Oro City, Inc.,
[11]
 Rosevale Foundation, Inc.,[12] a domestic, privately-owned educational institution, and
several others,[13]in their capacities as citizens (Serve Life);

(5) Petition,[14] filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,[15] filed by Eduardo Olaguer and the Catholic

Xybrspace Apostolate of the Philippines,[16] in their capacities as a citizens and taxpayers
(Olaguer);

(7) Petition for Certiorari and Prohibition,[17] filed by the Philippine Alliance of

Xseminarians Inc.,[18] and several others[19] in their capacities as citizens and taxpayers
(PAX);

(8) Petition,[20] filed by Reynaldo J. Echavez, M.D. and several others,[21] in their capacities
as citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,[22] filed by spouses Francisco and Maria Fenny

C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf
of those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member
of the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,[23] filed by Pro-Life Philippines Foundation Inc.

[24]
 and several others,[25] in their capacities as citizens and taxpayers and on behalf of its
associates who are members of the Bar (Pro-Life);

(11) Petition for Prohibition,[26] filed by Millennium Saint Foundation, Inc.,[27] Attys.

Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Cataluña Causing, in
their capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,[28] filed by John Walter B. Juat and several

others,[29] in their capacities as citizens (Juat);

(13) Petition for Certiorari and Prohibition,[30] filed by Couples for Christ Foundation, Inc.

and several others,[31] in their capacities as citizens (CFC);

(14) Petition for Prohibition[32] filed by Almarim Centi Tillah and Abdulhussein M. Kashim
in their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,[33] filed by Atty. Samson S. Alcantara in his capacity as a

citizen and a taxpayer (Alcantara); and

(16) Petition-In-Intervention,[34] filed by Buhay Hayaang Yumabong (BUHAY), an

accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following

GROUNDS:

 The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the
RH Law would authorize the purchase of hormonal contraceptives, intra-uterine
devices and injectables which are abortives, in violation of Section 12, Article II of
the Constitution which guarantees protection of both the life of the mother and
the life of the unborn from conception.[35]
 The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one’s health, as it causes cancer
and other health problems.[36]
 The RH Law violates the right to religious freedom. The petitioners contend that
the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For the
petitioners, the use of public funds for purposes that are believed to be contrary
to their beliefs is included in the constitutional mandate ensuring religious
freedom.[37]

It is also contended that the RH Law threatens conscientious objectors of criminal

prosecution, imprisonment and other forms of punishment, as it compels medical
practitioners 1] to refer patients who seek advice on reproductive health programs to
other doctors; and 2] to provide full and correct information on reproductive health
programs and service, although it is against their religious beliefs and convictions.[38]

In this connection, Section 5.23 of the Implementing Rules and Regulations of the RH
Law (RH-IRR),[39] provides that skilled health professionals who are public officers such
as, but not limited to, Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with the duty to implement these
Rules, cannot be considered as conscientious objectors.[40]

It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious beliefs.[41]

While the petitioners recognize that the guarantee of religious freedom is not absolute,
they argue that the RH Law fails to satisfy the “clear and present danger test” and the
“compelling state interest test” to justify the regulation of the right to free exercise of
religion and the right to free speech.[42]

 The RH Law violates the constitutional provision on involuntary servitude.

According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro bono services for
indigent women, under threat of criminal prosecution, imprisonment and other
 forms of punishment.[43]

The petitioners explain that since a majority of patients are covered by

PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners’ services.[44]

 The RH Law violates the right to equal protection of the law. It is claimed that the
RH Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use. The petitioners argue
that, rather than promoting reproductive health among the poor, the RH Law
seeks to introduce contraceptives that would effectively reduce the number of
the poor.[45]

 The RH Law is “void-for-vagueness” in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for “any
violation,” it is vague because it does not define the type of conduct to be treated
as “violation” of the RH Law. [46]

In this connection, it is claimed that “Section 7 of the RH Law violates the right to due
process by removing from them (the people) the right to manage their own affairs and
to decide what kind of health facility they shall be and what kind of services they shall
offer.”[47] It ignores the management prerogative inherent in corporations for employers
to conduct their affairs in accordance with their own discretion and judgment.

 The RH Law violates the right to free speech. To compel a person to explain a full
range of family planning methods is plainly to curtail his right to expound only his
own preferred way of family planning. The petitioners note that although
exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to
perform the service or procedure.[48]

 The RH Law intrudes into the zone of privacy of one’s family protected by the

Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.[49]

It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually decide on matters pertaining to
the overall well-being of their family. In the same breath, it is also claimed that the
parents of a child who has suffered a miscarriage are deprived of parental authority to
determine whether their child should use contraceptives.[50]

 The RH Law violates the constitutional principle of non-delegation of legislative

authority. The petitioners question the delegation by Congress to the FDA of the
power to determine whether a product is non-abortifacient and to be included in
the Emergency Drugs List (EDL).[51]
  The RH Law violates the one subject/one bill rule provision under Section 26(1),
Article VI of the Constitution.[52]
 The RH Law violates Natural Law.[53]
 The RH Law violates the principle of Autonomy of Local Government
Units (LGUs) and the Autonomous Region of Muslim Mindanao (ARMM). It is
contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to
LGUs and the ARMM under the Local Government Code and R.A. No. 9054.[54]

Various parties also sought and were granted leave to file their respective comments-in-
intervention in defense of the constitutionality of the RH Law. Aside from the Office of
the Solicitor General (OSG) which commented on the petitions in behalf of the
respondents,[55] Congressman Edcel C. Lagman,[56] former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,[57] the
Filipino Catholic Voices for Reproductive Health (C4RH),[58] Ana Theresa “Risa”
Hontiveros,[59]and Atty. Joan De Venecia[60] also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.[61]

The respondents, aside from traversing the substantive arguments of the petitioners,
pray for the dismissal of the petitions for the principal reasons that 1] there is no actual
case or controversy and, therefore, the issues are not yet ripe for judicial
determination.; 2] some petitioners lack standing to question the RH Law; and 3] the
petitions are essentially petitions for declaratory relief over which the Court has no
original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued
the Status Quo Ante Order (SQAO), enjoining the effects and implementation of the
assailed legislation for a period of one hundred and twenty (120) days, or until July 17,
2013.[62]

On May 30, 2013, the Court held a preliminary conference with the counsels of the
parties to determine and/or identify the pertinent issues raised by the parties and the
sequence by which these issues were to be discussed in the oral arguments. On July 9
and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of the
Court.[63]

Thereafter, the Court directed the parties to submit their respective memoranda within
sixty (60) days and, at the same time posed several questions for their clarification on
some contentions of the parties.[64]

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation
and distribution of contraceptive drugs and devices. As far back as June 18, 1966, the
country enacted R.A. No. 4729 entitled “An Act to Regulate the Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and Devices.” Although contraceptive drugs
and devices were allowed, they could not be sold, dispensed or distributed “unless such
sale, dispensation and distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical practitioner.”[65]

In addition, R.A. No. 5921,[66] approved on June 21, 1969, contained provisions relative

to “dispensing of abortifacients or anti-conceptional substances and devices.” Under
Section 37 thereof, it was provided that “no drug or chemical product or device capable
of provoking abortion or preventing conception as classified by the Food and Drug
Administration shall be delivered or sold to any person without a proper prescription by
a duly licensed physician.”

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population,

which recognized that the population problem should be considered as the principal
element for long-term economic development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population growth. [67] Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled “An Act Establishing a
National Policy on Population, Creating the Commission on Population and for Other
Purposes.” The law envisioned that “family planning will be made part of a broad
educational program; safe and effective means will be provided to couples desiring to
space or limit family size; mortality and morbidity rates will be further reduced.”

To further strengthen R.A. No. 6365, then President Ferdinand E. Marcos

issued Presidential Decree. (P.D.) No. 79,[68] dated December 8, 1972, which, among
others, made “family planning a part of a broad educational program,” provided “family
planning services as a part of over-all health care,” and made “available all acceptable
methods of contraception, except abortion, to all Filipino citizens desirous of spacing,
limiting or preventing pregnancies.”

Through the years, however, the use of contraceptives and family planning methods
evolved from being a component of demographic management, to one centered on the
promotion of public health, particularly, reproductive health.[69] Under that policy, the
country gave priority to one’s right to freely choose the method of family planning to be
adopted, in conformity with its adherence to the commitments made in the
International Conference on Population and Development.[70] Thus, on August 14, 2009,
the country enacted R.A. No. 9710 or “The Magna Carta for Women,” which, among
others, mandated the State to provide for comprehensive health services and programs
for women, including family planning and sex education.[71]

The RH Law

Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the year 2000
and over 92 million in 2010.[72] The executive and the legislative, thus, felt that the
measures were still not adequate. To rein in the problem, the RH Law was enacted to
provide Filipinos, especially the poor and the marginalized, access and information to
the full range of modern family planning methods, and to ensure that its objective to
provide for the peoples’ right to reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health providers to provide information on
the full range of modern family planning methods, supplies and services, and for schools
to provide reproductive health education. To put teeth to it, the RH Law criminalizes
certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective
the current laws on contraception, women’s health and population control.

Prayer of the Petitioners – Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional.
Petitioner ALFI, in particular, argues that the government sponsored contraception
program, the very essence of the RH Law, violates the right to health of women and the
sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays
that “the status quo ante – the situation prior to the passage of the RH Law – must be
maintained.”[73] It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As
provided under Republic Act No. 5921 and Republic Act No. 4729, the sale and
distribution of contraceptives are prohibited unless dispensed by a prescription duly
licensed by a physician. What the Petitioners find deplorable and repugnant under the
RH Law is the role that the State and its agencies – the entire bureaucracy, from the
cabinet secretaries down to the barangay officials in the remotest areas of the country –
is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers’ money. The State then will be the funder and provider
of all forms of family planning methods and the implementer of the program by
ensuring the widespread dissemination of, and universal access to, a full range of family
planning methods, devices and supplies.[74]

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over
the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life
 2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Governments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it
behooves the Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over
the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it
should submit to the legislative and political wisdom of Congress and respect the
compromises made in the crafting of the RH Law, it being “a product of a majoritarian
democratic process”[75] and “characterized by an inordinate amount of
transparency.”[76] The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari  is “weak,” since the Constitution vests the
discretion to implement the constitutional policies and positive norms with the political
departments, in particular, with Congress.[77] It further asserts that in view of the Court’s
ruling in Southern Hemisphere v. Anti-Terrorism Council,[78] the remedies
of certiorari  and prohibition utilized by the petitioners are improper to assail the validity
of the acts of the legislature.[79]

Moreover, the OSG submits that as an “as applied challenge,” it cannot prosper
considering that the assailed law has yet to be enforced and applied to the petitioners,
and that the government has yet to distribute reproductive health devices that are
abortive. It claims that the RH Law cannot be challenged “on its face” as it is not a
speech-regulating measure. [80]

In many cases involving the determination of the constitutionality of the actions of the
Executive and the Legislature, it is often sought that the Court temper its exercise of
judicial power and accord due respect to the wisdom of its co-equal branch on the basis
of the principle of separation of powers. To be clear, the separation of powers is a
fundamental principle in our system of government, which obtains not through express
provision but by actual division in our Constitution. Each department of the government
has exclusive cognizance of matters within its jurisdiction and is supreme within its own
sphere.[81] Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;[82] (b) the executive power shall be vested in
the President of the Philippines;[83] and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.[84] The
Constitution has truly blocked out with deft strokes and in bold lines, the allotment of
powers among the three branches of government.[85]

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation
of powers which imposes upon the courts proper restraint, born of the nature of their
functions and of their respect for the other branches of government, in striking down
the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.[86]

It has also long been observed, however, that in times of social disquietude or political
instability, the great landmarks of the Constitution are apt to be forgotten or marred, if
not entirely obliterated.[87] In order to address this, the Constitution impresses upon the
Court to respect the acts performed by a co-equal branch done within its sphere of
competence and authority, but at the same time, allows it to cross the line of separation
– but only at a very limited and specific point – to determine whether the acts of the
executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.[88] Thus, while the Court may not pass upon questions of
wisdom, justice or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results.[89] The Court must demonstrate
its unflinching commitment to protect those cherished rights and principles embodied in
the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may
be limited, the Constitution makes no distinction as to the kind of legislation that may
be subject to judicial scrutiny, be it in the form of social legislation or otherwise. The
reason is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is
not to review their collective wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review.[90] This is in line
with Article VIII, Section 1 of the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. [Emphases supplied]

As far back as Tañada v. Angara, [91] the Court has unequivocally declared that certiorari,

prohibition and mandamus are appropriate remedies to raise constitutional issues and
to review and/or prohibit/nullify, when proper, acts of legislative and executive officials,
as there is no other plain, speedy or adequate remedy in the ordinary course of law. This
ruling was later on applied in Macalintal v. COMELEC,[92] Aldaba v. COMELEC,
[93]
 Magallona v. Ermita,[94] and countless others. In Tañada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an action
of the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute.
“The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld.” Once a
“controversy as to the application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino

Feliciano, “judicial review is essential for the maintenance and enforcement of the
separation of powers and the balancing of powers among the three great departments
of government through the definition and maintenance of the boundaries of authority
and control between them. To him, judicial review is the chief, indeed the only, medium
of participation - or instrument of intervention - of the judiciary in that balancing
operation."[95]

Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by four
exacting requisites, viz: (a) there must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis
mota of the case.[96]

Actual Case or Controversy

Proponents of the RH Law submit that the subject petitions do not present any actual
case or controversy because the RH Law has yet to be implemented.[97] They claim that
the questions raised by the petitions are not yet concrete and ripe for adjudication since
no one has been charged with violating any of its provisions and that there is no
showing that any of the petitioners’ rights has been adversely affected by its operation.
[98]
 In short, it is contended that judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate

or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion.[99] The rule is that courts do not sit to adjudicate
mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable—definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as distinguished from
an opinion advising what the law would be upon a hypothetical state of facts.[100]

Corollary to the requirement of an actual case or controversy is the requirement of

ripeness.[101] A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is immediately
in danger of sustaining some direct injury as a result of the act complained of.[102]

In The Province of North Cotabato v. The Government of the Republic of the Philippines,
[103]
 where the constitutionality of an unimplemented Memorandum of Agreement on
the Ancestral Domain (MOA-AD) was put in question, it was argued that the Court has
no authority to pass upon the issues raised as there was yet no concrete act performed
that could possibly violate the petitioners’ and the intervenors’ rights. Citing precedents,
the Court ruled that the fact of the law or act in question being not yet effective does
not negate ripeness. Concrete acts under a law are not necessary to render the
controversy ripe. Even a singular violation of the Constitution and/or the law is enough
to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that
the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect and that budgetary measures to carry out
the law have already been passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also
a duty of the Judiciary to settle the dispute.[104]

Moreover, the petitioners have shown that the case is so because medical practitioners
or medical providers are in danger of being criminally prosecuted under the RH Law for
vague violations thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other benefits. They
must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged “on its face” as it is not a speech
regulating measure.[105]

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment. [106] These include religious freedom, freedom of the press, and the right
of the people to peaceably assemble, and to petition the Government for a redress of
grievances. [107] After all, the fundamental right to religious freedom, freedom of the
press and peaceful assembly are but component rights of the right to one’s freedom of
expression, as they are modes which one’s thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues,[108] it has expanded its scope to
cover statutes not only regulating free speech, but also those involving religious
freedom, and other fundamental rights.[109] The underlying reason for this modification
is simple. For unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
[110]
 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant
with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority
to take cognizance of these kindred petitions and to determine if the RH Law can indeed
pass constitutional scrutiny. To dismiss these petitions on the simple expedient that
there exist no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been transgressed, to the
detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective
petitions. It contends that the “as applied challenge” lodged by the petitioners cannot
prosper as the assailed law has yet to be enforced and applied against them, [111] and the
government has yet to distribute reproductive health devices that are abortive.[112]

The petitioners, for their part, invariably invoke the “transcendental importance”
doctrine and their status as citizens and taxpayers in establishing the requisite locus
standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the
challenged governmental act.[113] It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[114]

In relation to locus standi, the “as applied challenge” embodies the rule that one can
challenge the constitutionality of a statute only if he asserts a violation of his own rights.
The rule prohibits one from challenging the constitutionality of the statute grounded on
a violation of the rights of third persons not before the court. This rule is also known as
the prohibition against third-party standing.[115]

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that “the rule on standing is a matter
of procedure, hence, can be relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as when the matter
is of transcendental importance, of overreaching significance to society, or of
paramount public interest.”[116]
In Coconut Oil Refiners Association, Inc. v. Torres,[117] the Court held that in cases
of paramount importance where serious constitutional questions are involved, the
standing requirement may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial review. In the
first Emergency Powers Cases,[118] ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through
an “as-applied challenge, still, the Court has time and again acted liberally on the locus
standi requirement. It has accorded certain individuals standing to sue, not otherwise
directly injured or with material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked. The rule on locus standi is,
after all, a procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not have
been directly injured by the operation of a law or any other government act. As held
in Jaworski v. PAGCOR:[119]

Granting arguendo that the present action cannot be properly treated as a petition for

prohibition, the transcendental importance of the issues involved in this case warrants
that we set aside the technical defects and take primary jurisdiction over the petition
at bar. One cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the youth; hence,
their proper and just determination is an imperative need. This is in accordance with
the well-entrenched principle that rules of procedure are not inflexible tools designed
to hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate,
rather than promote substantial justice, must always be eschewed. (Emphasis
supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but
also to the bench and bar, the issues raised must be resolved for the guidance of all.
After all, the RH Law drastically affects the constitutional provisions on the right to life
and health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and reproductive
health have already caused deep division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of transcendental
importance warranting immediate court adjudication. More importantly, considering
that it is the right to life of the mother and the unborn which is primarily at issue, the
Court need not wait for a life to be taken away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the life
of either the mother or her child is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.[120] Suffice it to state
that most of the petitions are praying for injunctive reliefs and so the Court would just
consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive
reliefs, the Court may consider them as petitions for prohibition under Rule 65.[121]

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1), Article VI of the Constitution,[122] prescribing the one subject-one
title rule. According to them, being one for reproductive health with responsible
parenthood, the assailed legislation violates the constitutional standards of due process
by concealing its true intent – to act as a population control measure.[123]

To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure,[124] and that the concepts of “responsible parenthood” and
“reproductive health” are both interrelated as they are inseparable.[125]

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as
principally a population control measure. The corpus of the RH Law is geared towards
the reduction of the country’s population. While it claims to save lives and keep our
women and children healthy, it also promotes pregnancy-preventing products. As stated
earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and
the marginalized, with access to information on the full range of modern family planning
products and methods. These family planning methods, natural or modern, however,
are clearly geared towards the prevention of pregnancy. For said reason, the manifest
underlying objective of the RH Law is to reduce the number of births in the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care
as well. A large portion of the law, however, covers the dissemination of information
and provisions on access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners’ contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the RH Law.
[126]
 Indeed, remove the provisions that refer to contraception or are related to it and the
RH Law loses its very foundation.[127] As earlier explained, “the other positive provisions
such as skilled birth attendance, maternal care including pre-and post-natal services,
prevention and management of reproductive tract infections including HIV/AIDS are
already provided for in the Magna Carta for Women.”[128]

Be that as it may, the RH Law does not violate the one subject/one bill rule. In  Benjamin
E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G. Escudero, it
was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to
employ in the title of the enactment language of such precision as to mirror, fully index
or catalogue all the contents and the minute details therein. The rule is sufficiently
complied with if the title is comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the persons interested are
informed of the nature, scope and consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal rather than technical
construction of the rule "so as not to cripple or impede legislation.” [Emphases
supplied]

In this case, a textual analysis of the various provisions of the law shows that both
“reproductive health” and “responsible parenthood” are interrelated and germane to
the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. – The State recognizes and guarantees the human rights of
all persons including their right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and
make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be
“so uncertain that the average person reading it would not be informed of the purpose
of the enactment or put on inquiry as to its contents, or which is misleading, either in
referring to or indicating one subject where another or different one is really embraced
in the act, or in omitting any expression or indication of the real subject or scope of the
act.”[129] Considering the close intimacy between “reproductive health” and “responsible
parenthood” which bears to the attainment of the goal of achieving “sustainable human
development” as stated under its terms, the Court finds no reason to believe that
Congress intentionally sought to deceive the public as to the contents of the assailed
legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the
unborn child under Section 12, Article II of the Constitution. The assailed legislation
allowing access to abortifacients/abortives effectively sanctions abortion.[130]

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a)
of the RH Law considers contraceptives that prevent the fertilized ovum to reach and be
implanted in the mother’s womb as an abortifacient; thus, sanctioning contraceptives
that take effect after fertilization and prior to implantation, contrary to the intent of the
Framers of the Constitution to afford protection to the fertilized ovum which already has
life.

They argue that even if Section 9 of the RH Law allows only “non-abortifacient”
hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-
abortifacient and effective family planning products and supplies, medical research
shows that contraceptives use results in abortion as they operate to kill the fertilized
ovum which already has life.[131] As it opposes the initiation of life, which is a
fundamental human good, the petitioners assert that the State sanction of
contraceptive use contravenes natural law and is an affront to the dignity of man.[132]

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an
abortifacient, the assailed legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no
way it can truthfully make a certification that it shall not be used for abortifacient
purposes. [133]

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of
the Constitution was simply the prohibition of abortion. They contend that the RH Law
does not violate the Constitution since the said law emphasizes that only “non-
abortifacient” reproductive health care services, methods, devices products and
supplies shall be made accessible to the public.[134]

According to the OSG, Congress has made a legislative determination that

contraceptives are not abortifacients by enacting the RH Law. As the RH Law was
enacted with due consideration to various studies and consultations with the World
Health Organization (WHO) and other experts in the medical field, it is asserted that the
Court afford deference and respect to such a determination and pass judgment only
when a particular drug or device is later on determined as an abortive.[135]

For his part, respondent Lagman argues that the constitutional protection of one’s right
to life is not violated considering that various studies of the WHO show that life begins
from the implantation of the fertilized ovum. Consequently, he argues that the RH Law
is constitutional since the law specifically provides that only contraceptives that do not
prevent the implantation of the fertilized ovum are allowed.[136]

The Court’s Position

It is a universally accepted principle that every human being enjoys the right to life.
[137]
 Even if not formally established, the right to life, being grounded on natural law, is
inherent and, therefore, not a creation of, or dependent upon a particular law, custom,
or belief. It precedes and transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1,
Article III of the Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the
Philippines is not of recent vintage. From the enactment of R.A. No. 4729, entitled “An
Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices” on June 18, 1966, prescribing rules on contraceptive drugs and devices which
prevent fertilization,[138] to the promotion of male vasectomy and tubal ligation,[139] and
the ratification of numerous international agreements, the country has long recognized
the need to promote population control through the use of contraceptives in order to
achieve long-term economic development. Through the years, however, the use of
contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health,
particularly, reproductive health.[140]

This has resulted in the enactment of various measures promoting women’s rights and
health and the overall promotion of the family’s well-being. Thus, aside from R.A. No.
4729, R.A. No. 6365 or “The Population Act of the Philippines” and R.A. No. 9710,
otherwise known as the “The Magna Carta of Women” were legislated. Notwithstanding
this paradigm shift, the Philippine national population program has always been
grounded two cornerstone principles: “principle of no-abortion” and the “principle of
non-coercion.”[141] As will be discussed later, these principles are not merely grounded
on administrative policy, but rather, originates from the constitutional protection
expressly provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life
begins is a scientific and medical issue that should not be decided, at this stage, without
proper hearing and evidence. During the deliberation, however, it was agreed upon that
the individual members of the Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular
phrase of Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.

Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because, amazingly, there are
quarters who have conveniently disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view that life begins at implantation.
Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with
“fertilization” of the female ovum by the male sperm.[142] On the other side of the
spectrum are those who assert that conception refers to the “implantation” of the
fertilized ovum in the uterus.[143]

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be
interpreted in their plain and ordinary meaning. As held in the recent case of Chavez v.
Judicial Bar Council:[144]

One of the primary and basic rules in statutory construction is that where the words of a
statute are clear, plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. It is a well-settled principle of constitutional
construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the
words of the Constitution should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate that the framers
and the people mean what they say. Verba legis non est recedendum – from the words
of a statute there should be no departure.

The raison d’ être for the rule is essentially two-fold: First, because it is assumed that
the words in which constitutional provisions are couched express the objective sought
to be attained; and second, because the Constitution is not primarily a lawyer’s
document but essentially that of the people, in whose consciousness it should ever be
present as an important condition for the rule of law to prevail.

In conformity with the above principle, the traditional meaning of the word
“conception” which, as described and defined by all reliable and reputable sources,
means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming

pregnant, formation of a viable zygote; the fertilization that results in a new entity
capable of developing into a being like its parents.[145]

Black’s Law Dictionary gives legal meaning to the term “conception” as the fecundation
of the female ovum by the male spermatozoon resulting in human life capable of
survival and maturation under normal conditions.[146]

Even in jurisprudence, an unborn child has already a legal personality. In Continental

Steel Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S.
Montaño,[147] it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first
before he/she could die. Even a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from conception, that the State must
protect equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death. [Emphases
in the original]

In Gonzales v. Carhart,[148] Justice Anthony Kennedy, writing for the US Supreme Court,

said that the State “has respect for human life at all stages in the pregnancy” and “a
legitimate and substantial interest in preserving and promoting fetal life.” Invariably, in
the decision, the fetus was referred to, or cited, as a baby or a child.[149]
Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers
regarding the term “conception” used in Section 12, Article II of the Constitution. From
their deliberations, it clearly refers to the moment of “fertilization.” The records reflect
the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

“The State shall equally protect the life of the mother and the life of the unborn from
the moment of conception.”

When is the moment of conception?

xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized
by the sperm that there is human life. x x x.[150]

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of

human life, it was explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that
needs to be answered is: Is the fertilized ovum alive? Biologically categorically says yes,
the fertilized ovum is alive. First of all, like all living organisms, it takes in nutrients which
it processes by itself. It begins doing this upon fertilization. Secondly, as it takes in these
nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the
continuous process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical “yes.” At the
moment of conception, the nuclei of the ovum and the sperm rupture. As this happens
23 chromosomes from the ovum combine with 23 chromosomes of the sperm to form a
total of 46 chromosomes. A chromosome count of 46 is found only – and I repeat, only
in human cells. Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the
fertilized ovum is both alive and human, then, as night follows day, it must be human
life. Its nature is human.[151]

Why the Constitution used the phrase “from the moment of conception” and not “from
the moment of fertilization” was not because of doubt when human life begins, but
rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception” was described by us
here before with the scientific phrase “fertilized ovum” may be beyond the
comprehension of some people; we want to use the simpler phrase “from the moment
of conception.”[152]
Thus, in order to ensure that the fertilized ovum is given ample protection under the
Constitution, it was discussed:

Rev. Rigos: Yes, we think that the word “unborn” is sufficient for the purpose of writing
a Constitution, without specifying “from the moment of conception.”

Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner’s own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization; and that
would really be very, very, dangerous. It is now determined by science that life begins
from the moment of conception. There can be no doubt about it. So we should not give
any doubt to Congress, too.[153]

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually,
that is one of the questions I was going to raise during the period of interpellations but
it has been expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.
When it speaks of “from the moment of conception,” does this mean when the egg
meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether
certain contraceptives that we know today are abortifacient or not because it is a fact
that some of the so-called contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the fertilized ovum to travel
towards the uterus and to take root. What happens with some contraceptives is that
they stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we
take the provision as it is proposed, these so called contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned under
this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether

or not these certain contraceptives are abortifacient. Scientifically and based on the
provision as it is now proposed, they are already considered abortifacient.[154]

From the deliberations above-quoted, it is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the
unborn child from the earliest opportunity of life, that is, upon fertilization or upon the
union of the male sperm and the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from enacting measures that would
allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban
all contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas,
spearheading the need to have a constitutional provision on the right to life, recognized
that the determination of whether a contraceptive device is an abortifacient is a
question of fact which should be left to the courts to decide on based on established
evidence.[155] From the discussions above, contraceptives that kill or destroy the
fertilized ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female ovum,
and those that similarly take action prior to fertilization should be deemed non-
abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx       xxx        xxx       xxx

Mr. Gascon: x x x x. As I mentioned in my speech on the US bases, I am pro-life, to the

point that I would like not only to protect the life of the unborn, but also the lives of the
millions of people in the world by fighting for a nuclear-free world. I would just like to be
assured of the legal and pragmatic implications of the term “protection of the life of the
unborn from the moment of conception.” I raised some of these implications this
afternoon when I interjected in the interpellation of Commissioner Regalado. I would
like to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term “the life of the unborn from the moment
of conception” we are also actually saying “no,” not “maybe,” to certain contraceptives
which are already being encouraged at this point in time. Is that the sense of the
committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive.

There is no unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg which has
already been fertilized from taking route to the uterus. So if we say “from the moment
of conception,” what really occurs is that some of these contraceptives will have to be
unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.[156]

The fact that not all contraceptives are prohibited by the 1987 Constitution is even
admitted by petitioners during the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as abortifacients.[157]

Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.

Justice Bersamin:
To be protected.

Atty. Noche:
Under Section 12, yes.

Justice Bersamin:
So you have no objection to condoms?

Atty. Noche:
Not under Section 12, Article II.

Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?

Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am
discussing here Section 12, Article II, Your Honor, yes.

Justice Bersamin:
Alright.

Atty. Noche:
And it’s not, I have to admit it’s not an abortifacient, Your Honor.[158]

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby’s

Medical, Nursing, and Allied Health Dictionary defines conception as “the beginning of
pregnancy usually taken to be the instant a spermatozoon enters an ovum and forms a
viable zygote.”[159] It describes fertilization as “the union of male and female gametes to
form a zygote from which the embryo develops.”[160]

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),[161] used by medical

schools in the Philippines, also concludes that human life (human person) begins at the
moment of fertilization with the union of the egg and the sperm resulting in the
formation of a new individual, with a unique genetic composition that dictates all
developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development
begins after the union of male and female gametes or germ cells during a process
known as fertilization (conception). Fertilization is a sequence of events that begins with
the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with
the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the
mingling of their chromosomes to form a new cell. This fertilized ovum, known as a
zygote, is a large diploid cell that is the beginning, or primordium, of a human
being." [162]

The authors of Human Embryology & Teratology[163] mirror the same position. They
wrote: "Although life is a continuous process, fertilization is a critical landmark because,
under ordinary circumstances, a new, genetically distinct human organism is thereby
formed.... The combination of 23 chromosomes present in each pronucleus results in 46
chromosomes in the zygote. Thus the diploid number is restored and the embryonic
genome is formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a “Paper on

the Reproductive Health Bill (Responsible Parenthood Bill)” and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA
maintains its strong position that fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human embryology, a
human being begins immediately at fertilization and after that, there is no point along
the continuous line of human embryogenesis where only a "potential" human being can
be posited. Any philosophical, legal, or political conclusion cannot escape this
objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and
that the life of a new human being commences at a scientifically well defined “moment
of conception.” This conclusion is objective, consistent with the factual evidence, and
independent of any specific ethical, moral, political, or religious view of human life or
of human embryos.[164]

Conclusion: The Moment

of Conception is Reckoned from
Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance,
and more importantly, following the intention of the Framers of the Constitution, the
undeniable conclusion is that a zygote is a human organism and that the life of a new
human being commences at a scientifically well-defined moment of conception, that
is, upon fertilization.

For the above reasons, the ponente cannot subscribe to the theory advocated by Hon.
Lagman that life begins at implantation.[165] According to him, “fertilization and
conception are two distinct and successive stages in the reproductive process. They are
not identical and synonymous.”[166] Citing a letter of the WHO, he wrote that “medical
authorities confirm that the implantation of the fertilized ovum is the commencement
of conception and it is only after implantation that pregnancy can be medically
detected.”[167]

This theory of implantation as the beginning of life is devoid of any legal or scientific
mooring. It does not pertain to the beginning of life but to the viability of the fetus. The
fertilized ovum/zygote is not an inanimate object – it is a living human being complete
with DNA and 46 chromosomes.[168] Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would constitute
textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any
drug or device that would prevent the implantation of the fetus at the uterine wall. It
would be provocative and further aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes – abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting
the life of the unborn from conception was to prevent the Legislature from enacting a
measure legalizing abortion. It was so clear that even the Court cannot interpret it
otherwise. This intent of the Framers was captured in the record of the proceedings of
the 1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal
proponent of the protection of the unborn from conception, explained:

The intention…is to make sure that there would be no pro-abortion laws ever

passed by Congress or any pro-abortion decision passed by the Supreme Court.[169]

A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination, at this
stage, when life begins, it finds that the RH Law itself clearly mandates that protection
be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH
Law is replete with provisions that embody the policy of the law to protect to the
fertilized ovum and that it should be afforded safe travel to the uterus for implantation.
[170]

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the
Revised Penal Code, which penalizes the destruction or expulsion of the fertilized ovum.
Thus:

1] x x x.

Section 4. Definition of Terms. – For the purpose of this Act, the following terms shall be
defined as follows:

x x x.

(q)  Reproductive health care refers to the access to a full range of methods, facilities,
services and supplies that contribute to reproductive health and well-being by
addressing reproductive health-related problems. It also includes sexual health, the
purpose of which is the enhancement of life and personal relations. The elements of
reproductive health care include the following:
x x x.

(3) Proscription of abortion and management of abortion complications;

x x x.

2] x x x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide

freely and responsibly whether or not to have children; the number, spacing and timing
of their children; to make other decisions concerning reproduction, free of
discrimination, coercion and violence; to have the information and means to do so; and
to attain the highest standard of sexual health and reproductive health: Provided,
however, That reproductive health rights do not include abortion, and access to
abortifacients.

3] x x x.

SEC. 29. Repealing Clause. – Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction, administrative
order, rule or regulation contrary to or is inconsistent with the provisions of this Act
including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby
repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients.
To be clear, Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms  – x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of

a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and
be implanted in the mother’s womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the
moment of fertilization. By using the word “or,” the RH Law prohibits not only drugs or
devices that prevent implantation, but also those that induce abortion and those that
induce the destruction of a fetus inside the mother’s womb. Thus, an abortifacient is
any drug or device that either:

(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother’s womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother’s womb,

upon determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law,
consistent with the Constitution, recognizes that the fertilized ovum already has life
and that the State has a bounden duty to protect it. The conclusion becomes clear
because the RH Law, first, prohibits any drug or device that induces abortion (first kind),
which, as discussed exhaustively above, refers to that which induces the killing or the
destruction of the fertilized ovum, and, second, prohibits any drug or device the
fertilized ovum to reach and be implanted in the mother’s womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach
and be implanted in the mother’s womb is an abortifacient (third kind), the RH Law does
not intend to mean at all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there
is a need to protect the fertilized ovum which already has life, and two, the fertilized
ovum must be protected the moment it becomes existent – all the way until it reaches
and implants in the mother’s womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants – there is nothing to prevent
any drug or device from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the Court’s
position that life begins at fertilization, not at implantation. When a fertilized ovum is
implanted in the uterine wall, its viability is sustained but that instance of implantation
is not the point of beginning of life. It started earlier. And as defined by the RH Law, any
drug or device that induces abortion, that is, which kills or destroys the fertilized ovum
or prevents the fertilized ovum to reach and be implanted in the mother’s womb, is
an abortifacient.

Proviso Under Section 9 of the RH Law 

This notwithstanding, the Court finds that the proviso under Section 9 of the law that
“any product or supply included or to be included in the EDL must have a certification
from the FDA that said product and supply is made available on the condition that it is
not to be used as an abortifacient” as empty as it is absurd. The FDA, with all its
expertise, cannot fully attest that a drug or device will not all be used as an
abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.[171]

Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section 9, as
worded, should bend to the legislative intent and mean that “any product or supply
included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that  it cannot be used as
abortifacient.” Such a construction is consistent with the proviso under the second
paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means
emergency contraceptive pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely
abused their office when they redefined the meaning of abortifacient. The RH Law
defines “abortifacient” as follows:

SEC. 4. Definition of Terms. – For the purpose of this Act, the following terms shall be
defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of
a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and
be implanted in the mother’s womb upon determination of the FDA.

Section 3.01(a) of the IRR, however, redefines “abortifacient” as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum
to reach and be implanted in the mother’s womb upon determination of the Food and
Drug Administration (FDA). [Emphasis supplied]

Again in Section 3.01(j) of the RH-IRR, “contraceptive,” is redefined, viz:

j) Contraceptive  refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother’s womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows “contraceptives” and recognizes as

“abortifacient” only those that primarily induce abortion or the destruction of a fetus
inside the mother’s womb or the prevention of the fertilized ovum to reach and be
implanted in the mother’s womb.[172]

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As
they pointed out, with the insertion of the word “primarily,” Section 3.01(a) and (j) of
the RH-IRR[173] must be struck down for being ultra vires.

Evidently, the addition of the word “primarily,” in Section 3.01(a) and (j) of the RH-IRR is
indeed ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be
declared invalid. There is danger that the insertion of the qualifier “primarily” will pave
the way for the approval of contraceptives which may harm or destroy the life of the
unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution. With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an “abortifacient” if its sole known effect is
abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

For the same reason, this definition of “contraceptive” would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe mechanism.
[174]

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an
abortifacient under Section 4 (a) of the RH Law and its declared policy against abortion,
the undeniable conclusion is that contraceptives to be included in the PNDFS and the
EDL will not only be those contraceptives that do not have the  primary action of causing
abortion or the destruction of a fetus inside the mother’s womb or the prevention of
the fertilized ovum to reach and be implanted in the mother’s womb, but also those
that do not have the secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with
the principle that laws should be construed in a manner that its constitutionality is
sustained, the RH Law and its implementing rules must be consistent with each other in
prohibiting abortion. Thus, the word “primarily” in Section 3.01(a) and (j) of the RH-IRR
should be declared void. To uphold the validity of Section 3.01(a) and (j) of the RH-IRR
and prohibit only those contraceptives that have the primary effect of being an abortive
would effectively “open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation of
Article II, Section 12 of the Constitution.”[175]

To repeat and emphasize, in all cases, the “principle of no abortion” embodied in the
constitutional protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the
inclusion of hormonal contraceptives, intrauterine devices, injectables and family
products and supplies in the National Drug Formulary and the inclusion of the same in
the regular purchase of essential medicines and supplies of all national hospitals.
[176]
 Citing various studies on the matter, the petitioners posit that the risk of
developing breast and cervical cancer is greatly increased in women who use oral
contraceptives as compared to women who never use them. They point out that the risk
is decreased when the use of contraceptives is discontinued. Further, it is contended
that the use of combined oral contraceptive pills is associated with a threefold increased
risk of venous thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction. [177] Given the definition of
“reproductive health” and “sexual health” under Sections 4(p)[178] and (w)[179] of the RH
Law, the petitioners assert that the assailed legislation only seeks to ensure that women
have pleasurable and satisfying sex lives.[180]

The OSG, however, points out that Section 15, Article II of the Constitution is not self-
executory, it being a mere statement of the administration’s principle and policy. Even if
it were self-executory, the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.[181]

The Court’s Position

A component to the right to life is the constitutional right to health. In this regard, the
Constitution is replete with provisions protecting and promoting the right to health.
Section 15, Article II of the Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

A portion of Article XIII also specifically provides for the States’ duty to provide for the
health of the people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall be priority for the
needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory
system and undertake appropriate health, manpower development, and research,
responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their
rehabilitation, self-development, and self-reliance, and their integration into the
mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.

Contrary to the respondent’s notion, however, these provisions are self-executing.

Unless the provisions clearly express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for legislation to implement these
self-executing provisions.[182] In Manila Prince Hotel v. GSIS,[183] it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution
are self-executing. If the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. This can be cataclysmic. That is
why the prevailing view is, as it has always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing. . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
(Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not
question contraception and contraceptives  per se.[184] In fact, ALFI prays that the status
quo – under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives
are not prohibited when they are dispensed by a prescription of a duly licensed by a
physician – be maintained.[185]

The legislative intent in the enactment of the RH Law in this regard is to leave intact the
provisions of R.A. No. 4729. There is no intention at all to do away with it. It is still a
good law and its requirements are still in to be complied with. Thus, the Court agrees
with the observation of respondent Lagman that the effectivity of the RH Law will not
lead to the unmitigated proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to the
public. As aptly explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be

dispensed and used without prescription.

109. Republic Act No. 4729 or “An Act to Regulate the Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices” and Republic Act No. 5921 or “An Act
Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education
in the Philippines and for Other Purposes” are not repealed by the RH Law and the
provisions of said Acts are not inconsistent with the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and
devices are particularly governed by RA No. 4729 which provides in full:

“Section 1. It shall be unlawful for any person, partnership, or corporation, to sell,

dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by a duly
licensed drug store or pharmaceutical company and with the prescription of a qualified
medical practitioner.

“Sec. 2. For the purpose of this Act:

“(a) “Contraceptive drug” is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and

“(b) “Contraceptive device” is any instrument, device, material, or agent introduced into
the female reproductive system for the primary purpose of preventing conception.

“Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall
be punished with a fine of not more than five hundred pesos or an imprisonment of not
less than six months or more than one year or both in the discretion of the Court.
“This Act shall take effect upon its approval.

“Approved: June 18, 1966”

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

“Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,

pharmaceutical, or drug of whatever nature and kind or device shall be compounded,
dispensed, sold or resold, or otherwise be made available to the consuming public
except through a prescription drugstore or hospital pharmacy, duly established in
accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other
relevant statutes, the pretension of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether harmful or not, is completely
unwarranted and baseless.[186] [Emphases in the Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law
which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. – The DOH shall
procure, distribute to LGUs and monitor the usage of family planning supplies for the
whole country. The DOH shall coordinate with all appropriate local government bodies
to plan and implement this procurement and distribution program. The supply and
budget allotments shall be based on, among others, the current levels and projections
of the following:

(a) Number of women of reproductive age and couples who want to space or limit their
children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring
program consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider
the provisions of R.A. No. 4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive drugs
and devices will done following a prescription of a qualified medical practitioner. The
distribution of contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden is assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness
or loss of life resulting or incidental to their use.[187]
At any rate, it bears pointing out that not a single contraceptive has yet been submitted
to the FDA pursuant to the RH Law. It behooves the Court to await its determination
which drugs or devices are declared by the FDA as safe, it being the agency tasked to
ensure that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this
ground is premature. Indeed, the various kinds of contraceptives must first be measured
up to the constitutional yardstick as expounded herein, to be determined as the case
presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-abortifacient. The
first sentence of Section 9 that ordains their inclusion by the National Drug Formulary in
the EDL by using the mandatory “shall” is to be construed as operative only after they
have been tested, evaluated, and approved by the FDA. The FDA, not Congress, has the
expertise to determine whether a particular hormonal contraceptive or intrauterine
device is safe and non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal

contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National Drug
Formulary in the EDL is not mandatory. There must first be a determination by the FDA
that they are in fact safe, legal, non-abortifacient and effective family planning products
and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are “safe, legal, non-abortifacient and effective” without the proper
scientific examination.

3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1.  On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered
by the constitutional proscription, there are those who, because of their religious
education and background, sincerely believe that contraceptives, whether abortifacient
or not, are evil. Some of these are medical practitioners who essentially claim that their
beliefs prohibit not only the use of contraceptives but also the willing participation and
cooperation in all things dealing with contraceptive use. Petitioner PAX explained that
“contraception is gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms true love
and denies the sovereign rule of God in the transmission of Human life.”[188]

The petitioners question the State-sponsored procurement of contraceptives, arguing

that the expenditure of their taxes on contraceptives violates the guarantee of religious
freedom since contraceptives contravene their religious beliefs.[189]
2.  On Religious Accommodation and
The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious
sentiments by making provisions for a conscientious objector, the constitutional
guarantee is nonetheless violated because the law also imposes upon the conscientious
objector the duty to refer the patient seeking reproductive health services to another
medical practitioner who would be able to provide for the patient’s needs. For the
petitioners, this amounts to requiring the conscientious objector to cooperate with the
very thing he refuses to do without violating his/her religious beliefs.[190]

They further argue that even if the conscientious objector’s duty to refer is recognized,
the recognition is unduly limited, because although it allows a conscientious objector in
Section 23 (a)(3) the option to refer a patient seeking reproductive health services and
information – no escape is afforded the conscientious objector in Section 23 (a)(1) and
(2), i.e. against a patient seeking reproductive health procedures. They claim that the
right of other individuals to conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers involved in the implementation
of the law referred to in Section 23(b); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognized.[191]

Petitioner Echavez and the other medical practitioners meanwhile, contend that the
requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They add that
compelling them to do the act against their will violates the Doctrine of Benevolent
Neutrality. Sections 9, 14 and 17 of the law are too secular that they tend to disregard
the religion of Filipinos. Authorizing the use of contraceptives with abortive effects,
mandatory sex education, mandatory pro-bono reproductive health services to
indigents encroach upon the religious freedom of those upon whom they are required.
[192]

Petitioner CFC also argues that the requirement for a conscientious objector to refer the
person seeking reproductive health care services to another provider infringes on one’s
freedom of religion as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the right to act on one’s
belief may be regulated by the State, the acts prohibited by the RH Law are passive acts
which produce neither harm nor injury to the public.[193]

Petitioner CFC adds that the RH Law does not show compelling state interest to justify
regulation of religious freedom because it mentions no emergency, risk or threat that
endangers state interests. It does not explain how the rights of the people (to equality,
non-discrimination of rights, sustainable human development, health, education,
information, choice and to make decisions according to religious convictions, ethics,
cultural beliefs and the demands of responsible parenthood) are being threatened or
are not being met as to justify the impairment of religious freedom.[194]

Finally, the petitioners also question Section 15 of the RH Law requiring would-be
couples to attend family planning and responsible parenthood seminars and to obtain a
certificate of compliance. They claim that the provision forces individuals to participate
in the implementation of the RH Law even if it contravenes their religious beliefs.[195] As
the assailed law dangles the threat of penalty of fine and/or imprisonment in case of
non-compliance with its provisions, the petitioners claim that the RH Law forcing them
to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.

The Respondents’ Positions

The respondents, on the other hand, contend that the RH Law does not provide that a
specific mode or type of contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief. [196] They point out that the RH Law only
seeks to serve the public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in line with the State’s
duty to bring to reality the social justice health guarantees of the Constitution,[197] and
that what the law only prohibits are those acts or practices, which deprive others of
their right to reproductive health.[198] They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be compelled to
violate his religion against his free will.[199]

The respondents add that by asserting that only natural family planning should be
allowed, the petitioners are effectively going against the constitutional right to religious
freedom, the same right they invoked to assail the constitutionality of the RH Law.[200] In
other words, by seeking the declaration that the RH Law is unconstitutional, the
petitioners are asking that the Court recognize only the Catholic Church’s sanctioned
natural family planning methods and impose this on the entire citizenry.[201]

With respect to the duty to refer, the respondents insist that the same does not violate
the constitutional guarantee of religious freedom, it being a carefully balanced
compromise between the interests of the religious objector, on one hand, who is
allowed to keep silent but is required to refer – and that of the citizen who needs access
to information and who has the right to expect that the health care professional in front
of her will act professionally. For the respondents, the concession given by the State
under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise
one’s religion without unnecessarily infringing on the rights of others.[202] Whatever
burden is placed on the petitioner’s religious freedom is minimal as the duty to refer is
limited in duration, location and impact.[203]

Regarding mandatory family planning seminars under Section 15, the respondents claim
that it is a reasonable regulation providing an opportunity for would-be couples to have
access to information regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information received on account of
their attendance in the required seminars are not compelled to accept information
given to them. They are completely free to reject any information they do not agree
with and retain the freedom to decide on matters of family life without intervention of
the State.[204]

For their part, respondents De Venecia et al., dispute the notion that natural family
planning is the only method acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight the changing stand of the
Catholic Church on contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its followers in planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made
up of people of diverse ethnic, cultural and religious beliefs and backgrounds. History
has shown us that our government, in law and in practice, has allowed these various
religious, cultural, social and racial groups to thrive in a single society together. It has
embraced minority groups and is tolerant towards all – the religious people of different
sects and the non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality, and peace,
do ordain and promulgate this Constitution.

The Filipino people in “imploring the aid of Almighty God” manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind the purest principles
of morality.[205] Moreover, in recognition of the contributions of religion to society, the
1935, 1973 and 1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would
not encroach into the affairs of the church, and vice-versa. The principle of separation of
Church and State was, thus, enshrined in Article II, Section 6 of the 1987
Constitution, viz:

Section 6. The separation of Church and State shall be inviolable. 

Verily, the principle of separation of Church and State is based on mutual respect.
Generally, the State cannot meddle in the internal affairs of the church, much less
question its faith and dogmas or dictate upon it. It cannot favor one religion and
discriminate against another. On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry. It cannot demand that the
nation follow its beliefs, even if it sincerely believes that they are good for the country.

Consistent with the principle that not any one religion should ever be preferred over
another, the Constitution in the above-cited provision utilizes the term “church” in its
generic sense, which refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the “Church” means the
religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to
protect the State from the pursuit of its secular objectives, the Constitution lays down
the following mandate in Article III, Section 5 and Article VI, Section 29 (2), of the 1987
Constitution:

Section. 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.

Section 29.

x x x.

No public money or property shall be appropriated, applied, paid, or employed, directly

or indirectly, for the use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees:

the Establishment Clause and the Free Exercise Clause.

The establishment clause “principally prohibits the State from sponsoring any religion

or favoring any religion as against other religions. It mandates a strict neutrality in affairs
among religious groups.”[206] Essentially, it prohibits the establishment of a state religion
and the use of public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.[207] Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one’s belief and faith.[208] Explaining the concept of religious freedom,
the Court, in Victoriano v. Elizalde Rope Workers Union[209] wrote:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by law
of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one’s chosen form
of religion within limits of utmost amplitude. It has been said that the religion clauses
of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of others and with
the common good. Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously between the religions,
is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the
state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state’s secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S.
Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal—to promote freedom of individual religious beliefs
and practices. In simplest terms, the free exercise clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting religious belief with rewards
for religious beliefs and practices. In other words, the two religion clauses were
intended to deny government the power to use either the carrot or the stick to
influence individual religious beliefs and practices.[210]

Corollary to the guarantee of free exercise of one’s religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and
the freedom to act on one’s belief. The first part is absolute. As explained in Gerona v.
Secretary of Education:[211]

The realm of belief and creed is infinite and limitless bounded only by one’s
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when weighed
in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.[212]

The second part however, is limited and subject to the awesome power of the State and
can be enjoyed only with proper regard to the rights of others. It is “subject to
regulation where the belief is translated into external acts that affect the public
welfare.”[213]

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court
adheres to the doctrine of benevolent neutrality. This has been clearly decided by the
Court in Estrada v. Escritor, (Escritor)[214] where it was stated “that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution.”[215] In the same case, it
was further explained that”

The benevolent neutrality theory believes that with respect to these governmental

actions, accommodation of religion may be allowed, not to promote the government’s
favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. “The purpose of accommodation is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion.”[216] “What is sought under
the theory of accommodation is not a declaration of unconstitutionality of a facially
neutral law, but an exemption from its application or its ‘burdensome effect,’ whether
by the legislature or the courts.”[217]

In ascertaining the limits of the exercise of religious freedom, the compelling state
interest test is proper.[218] Underlying the compelling state interest test is the notion
that free exercise is a fundamental right and that laws burdening it should be subject to
strict scrutiny.[219] In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits. Beginning

with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the “clear and present danger” test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the
established institutions of society and law. The Victoriano case mentioned the
“immediate and grave danger” test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit inappropriately, the
“compelling state interest” test. After Victoriano, German went back to the Gerona
rule. Ebralinag then employed the “grave and immediate danger” test and overruled
the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the “clear and
present danger” test in the maiden case of American Bible Society. Not surprisingly, all
the cases which employed the “clear and present danger” or “grave and immediate
danger” test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand,
the Gerona  and German cases set the rule that religious freedom will not prevail over
established institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the “grave and
immediate danger” test. Victoriano was the only case that employed the “compelling
state interest” test, but as explained previously, the use of the test was inappropriate to
the facts of the case.

The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the “clear and present danger” and “grave and
immediate danger” tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been overruled,
is not congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from
religious belief. The “compelling state interest” test is proper where conduct is
involved for the whole gamut of human conduct has different effects on the state’s
interests: some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom as
this is a fundamental right that enjoys a preferred position in the hierarchy of rights -
“the most inalienable and sacred of all human rights”, in the words of Jefferson. This
right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the “aid of
Almighty God in order to build a just and humane society and establish a government.”
As held in Sherbert, only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling interest
of the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they
are destroyed. In determining which shall prevail between the state’s interest and
religious liberty, reasonableness shall be the guide. The “compelling state interest”
serves the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
“compelling state interest” test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]

The Court’s Position

In the case at bench, it is not within the province of the Court to determine whether the
use of contraceptives or one’s participation in the support of modern reproductive
health measures is moral from a religious standpoint or whether the same is right or
wrong according to one’s dogma or belief. For the Court has declared that matters
dealing with “faith, practice, doctrine, form of worship, ecclesiastical law, custom and
rule of a church…are unquestionably ecclesiastical matters which are outside the
province of the civil courts.”[220] The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench
should be understood only in this realm where it has authority. Stated otherwise, while
the Court stands without authority to rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether the RH Law contravenes the
guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious
beliefs and convictions. It is replete with assurances the no one can be compelled to
violate the tenets of his religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to
education and information, and the right to choose and make decisions for themselves
in accordance with their religious convictions, ethics, cultural beliefs, and the demands
of responsible parenthood. [Section 2, Declaration of Policy]

2. The State recognizes marriage as an inviolable social institution and the foundation of
the family which in turn is the foundation of the nation. Pursuant thereto, the State shall
defend:

(a) The right of spouses to found a family in accordance with their religious

convictions and the demands of responsible parenthood.” [Section 2, Declaration of
Policy]

3. The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards such as those registered
and approved by the FDA for the poor and marginalized as identified through the NHTS-
PR and other government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the
number of children they desire with due consideration to the health, particularly of
women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions. [Section 3(f)]

5. The State shall respect individuals’ preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural beliefs,
taking into consideration the State’s obligations under various human rights
instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs), women’s and people’s

organizations, civil society, faith-based organizations, the religious sector and
communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women,
the poor, and the marginalized. [Section 3(i)]

7] Responsible parenthood refers to the will and ability of a parent to respond to the
needs and aspirations of the family and children. It is likewise a shared responsibility
between parents to determine and achieve the desired number of children, spacing and
timing of their children according to their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and economic
concerns consistent with their religious convictions. [Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent neutrality,
their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do
with religion, it also limits what religious sects can or cannot do with the government.
They can neither cause the government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other groups. To do so, in
simple terms, would cause the State to adhere to a particular religion and, thus,
establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot
enhance its population control program through the RH Law simply because the
promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is
not precluded to pursue its legitimate secular objectives without being dictated upon by
the policies of any one religion. One cannot refuse to pay his taxes simply because it will
cloud his conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar’s and unto God the things that are
God’s.[221]

The free exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly
respects diverse religious beliefs in line with the Non-Establishment Clause, the same
conclusion cannot be reached with respect to Sections 7, 23 and 24 thereof. The said
provisions commonly mandate that a hospital or a medical practitioner to immediately
refer a person seeking health care and services under the law to another accessible
healthcare provider despite their conscientious objections based on religious or ethical
beliefs.

In a situation where the free exercise of religion is allegedly burdened by government

legislation or practice, the compelling state interest test in line with the Court’s
espousal of the Doctrine of Benevolent Neutrality in Escritor, finds application. In this
case, the conscientious objector’s claim to religious freedom would warrant an
exemption from obligations under the RH Law, unless the government succeeds in
demonstrating a more compelling state interest in the accomplishment of an important
secular objective. Necessarily so, the plea of conscientious objectors for exemption from
the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector’s right to
religious freedom has been burdened. As in Escritor, there is no doubt that an intense
tug-of-war plagues a conscientious objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs, while the other entices him to a clean
conscience yet under the pain of penalty. The scenario is an illustration of the
predicament of medical practitioners whose religious beliefs are incongruent with what
the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the
religious belief and conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking information on modern
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs.
As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, “at the basis of
the free exercise clause is the respect for the inviolability of the human conscience.[222]

Though it has been said that the act of referral is an opt-out clause, it is, however,
a false  compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot, in
conscience, do indirectly what they cannot do directly. One may not be the principal,
but he is equally guilty if he abets the offensive act by indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right
to free speech, it being an externalization of one’s thought and conscience. This in turn
includes the right to be silent. With the constitutional guarantee of religious freedom
follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights
guarantees the liberty of the individual to utter what is in his mind and the liberty not to
utter what is not in his mind.[223] While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one’s religion.[224]

In case of conflict between the religious beliefs and moral convictions of individuals, on
one hand, and the interest of the State, on the other, to provide access and information
on reproductive health products, services, procedures and methods to enable the
people to determine the timing, number and spacing of the birth of their children, the
Court is of the strong view that the religious freedom of health providers, whether
public or private, should be accorded primacy. Accordingly, a conscientious
objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be
violative of “the principle of non-coercion” enshrined in the constitutional right to free
exercise of religion.

Interestingly, on April 24, 2013, Scotland’s Inner House of the Court of Session, found in
the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board, [225] that
the midwives claiming to be conscientious objectors under the provisions of Scotland’s
Abortion Act of 1967, could not be required to delegate, supervise or support staff on
their labor ward who were involved in abortions.[226] The Inner House stated “that if
‘participation’ were defined according to whether the person was taking part ‘directly’
or ‘indirectly’ this would actually mean more complexity and uncertainty.”[227]

While the said case did not cover the act of referral, the applicable principle was the
same – they could not be forced to assist abortions if it would be against their
conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals
owned and operated by a religious group and health care service providers. Considering
that Section 24 of the RH Law penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and Section 23(a)(3), the Court deems
that it must be struck down for being violative of the freedom of religion. The same
applies to Section 23(a)(1) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the performance
of reproductive health procedures, the religious freedom of health care service
providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive
Secretary[228] it was stressed:

Freedom of religion was accorded preferred status by the framers of our fundamental
law. And this Court has consistently affirmed this preferred status, well aware that it
is "designed to protect the broadest possible liberty of conscience, to allow each man
to believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to
ensure compliance. Without set consequences for either an active violation or mere
inaction, a law tends to be toothless and ineffectual. Nonetheless, when what is
bartered for an effective implementation of a law is a constitutionally-protected right
the Court firmly chooses to stamp its disapproval. The punishment of a healthcare
service provider, who fails and/or refuses to refer a patient to another, or who declines
to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health

officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious
objection clause should be equally protective of the religious belief of public health
officers. There is no perceptible distinction why they should not be considered exempt
from the mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they
belong to the public or private sector. After all, the freedom to believe is intrinsic in
every individual and the protective robe that guarantees its free exercise is not taken off
even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the
hierarchy of human values. The mind must be free to think what it wills, whether in the
secular or religious sphere, to give expression to its beliefs by oral discourse or through
the media and, thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are freedom of religion,
freedom of speech, of the press, assembly and petition, and freedom of association.[229]

The discriminatory provision is void not only because no such exception is stated in the
RH Law itself but also because it is violative of the equal protection clause in the
Constitution. Quoting respondent Lagman, if there is any conflict between the RH-IRR
and the RH Law, the law must prevail.

Justice Mendoza:
I’ll go to another point. The RH law…in your Comment- in-Intervention on page 52, you
mentioned RH Law is replete with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this with qualifications. Now, you
have read, I presumed you have read the IRR-Implementing Rules and Regulations of
the RH Bill?
Congressman Lagman: 
Yes, Your Honor, I have read but I have to admit, it’s a long IRR and I have not
thoroughly dissected the nuances of the provisions.

Justice Mendoza:
I will read to you one provision. It’s Section 5.24. This I cannot find in the RH Law. But in
the IRR it says: “….skilled health professionals such as provincial, city or municipal health
officers, chief of hospitals, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.” Do
you agree with this?

Congressman Lagman:
I will have to go over again the provisions, Your Honor.

Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be
conscientious objectors, skilled health professionals cannot be considered conscientious
objectors. Do you agree with this? Is this not against the constitutional right to the
religious belief?

Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.
[230]

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in
defense of the subject provisions, were able to: 1] demonstrate a more compelling state
interest to restrain conscientious objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory character of the law is the least
intrusive means to achieve the objectives of the law.

Unfortunately, a deep scrutiny of the respondents’ submissions proved to be in vain.

The OSG was curiously silent in the establishment of a more compelling state interest
that would rationalize the curbing of a conscientious objector’s right not to adhere to an
action contrary to his religious convictions. During the oral arguments, the OSG
maintained the same silence and evasion. The Transcripts of the Stenographic Notes
disclose the following:

Justice De Castro:
Let’s go back to the duty of the conscientious objector to refer…

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:
...which you are discussing awhile ago with Justice Abad. What is the compelling State
interest in imposing this duty to refer to a conscientious objector which refuses to do so
because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor,..

Justice De Castro:
What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don’t believe that the standard is a compelling State
interest, this is an ordinary health legislation involving professionals. This is not a free
speech matter or a pure free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients.[231]

Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable.[232]

Freedom of religion means more than just the freedom to believe. It also means the
freedom to act or not to act according to what one believes. And this freedom is
violated when one is compelled to act against one’s belief or is prevented from acting
according to one’s belief.[233]

Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their children refers to a future
event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to
become pregnant at all. On the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment a patient seeks consultation
on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector’s religious freedom, the respondents have failed to demonstrate
“the gravest abuses, endangering paramount interests” which could limit or override a
person’s fundamental right to religious freedom. Also, the respondents have not
presented any government effort exerted to show that the means it takes to achieve its
legitimate state objective is the least intrusive means.[234] Other than the assertion that
the act of referring would only be momentary, considering that the act of referral by a
conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without violating the rights of the
conscientious objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform an act in
utter reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that
the right to health is protected. Considering other legislations as they stand now, R.A.
No. 4729 or the Contraceptive Act, R.A. No. 6365 or “The Population Act of the
Philippines” and R.A. No. 9710, otherwise known as “The Magna Carta of Women,”
amply cater to the needs of women in relation to health services and programs. The
pertinent provision of Magna Carta on comprehensive health services and programs for
women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State
shall, at all times, provide for a comprehensive, culture-sensitive, and gender-responsive
health services and programs covering all stages of a woman's life cycle and which
addresses the major causes of women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect shall be accorded to women's
religious convictions, the rights of the spouses to found a family in accordance with their
religious convictions, and the demands of responsible parenthood, and the right of
women to protection from hazardous drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims and
survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical
norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women

and girls. In addition, healthy lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women
in all sectors with appropriate, timely, complete, and accurate information and
education on all the above-stated aspects of women's health in government education
and training programs, with due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of
character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling
state interest was “Fifteen maternal deaths per day, hundreds of thousands of
unintended pregnancies, lives changed, x x x.”[235] He, however, failed to substantiate
this point by concrete facts and figures from reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the
Filipino maternal mortality rate dropped to 48 percent from 1990 to 2008,[236] although
there was still no RH Law at that time. Despite such revelation, the proponents still insist
that such number of maternal deaths constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare
programs for Filipino women, they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the
law. While generally healthcare service providers cannot be forced to render
reproductive health care procedures if doing it would contravene their religious beliefs,
an exception must be made in life-threatening cases that require the performance of
emergency procedures. In these situations, the right to life of the mother should be
given preference, considering that a referral by a medical practitioner would amount to
a denial of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: “the
forced referral clause that we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency.”[237]

In a conflict situation between the life of the mother and the life of a child, the doctor is
morally obliged always to try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in
the House of Representatives of the principle of double-effect wherein intentional harm
on the life of either the mother of the child is never justified to bring about a “good”
effect. In a conflict situation between the life of the child and the life of the mother, the
doctor is morally obliged always to try to save both lives. However, he can act in favor
of one (not necessarily the mother) when it is medically impossible to save both,
provided that no direct harm is intended to the other. If the above principles are
observed, the loss of the child’s life or the mother’s life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder.
The mother is never pitted against the child because both their lives are equally
valuable. [238]

Accordingly, if it is necessary to save the life of a mother, procedures endangering the

life of the child may be resorted to even if is against the religious sentiments of the
medical practitioner. As quoted above, whatever burden imposed upon a medical
practitioner in this case would have been more than justified considering the life he
would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15[239] as a condition for the issuance of a
marriage license, the Court finds the same to be a reasonable exercise of police power
by the government. A cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires is for would-be
spouses to attend a seminar on parenthood, family planning breastfeeding and infant
nutrition. It does not even mandate the type of family planning methods to be included
in the seminar, whether they be natural or artificial. As correctly noted by the OSG,
those who receive any information during their attendance in the required seminars are
not compelled to accept the information given to them, are completely free to reject
the information they find unacceptable, and retain the freedom to decide on matters of
family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the
provisions of the Constitution by intruding into marital privacy and autonomy. It argues
that it cultivates disunity and fosters animosity in the family rather than promote its
solidarity and total development.[240]

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is

the basic social institution. In fact, one article, Article XV, is devoted entirely to the
family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious

convictions and the demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family associations to participate in the planning and

implementation of policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth,
contains provisions which tend to wreck the family as a solid social institution. It bars
the husband and/or the father from participating in the decision making process
regarding their common future progeny. It likewise deprives the parents of their
authority over their minor daughter simply because she is already a parent or had
suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: …

(2) refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement,

the decision of the one undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and
vasectomy which, by their very nature, should require mutual consent and decision
between the husband and the wife as they affect issues intimately related to the
founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall
defend the “right of the spouses to found a family.” One person cannot found a family.
The right, therefore, is shared by both spouses. In the same Section 3, their right “to
participate in the planning and implementation of policies and programs that affect
them”  is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving
absolute authority to the spouse who would undergo a procedure, and barring the
other spouse from participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and endanger the marriage and
the family, all for the sake of reducing the population. This would be a marked
departure from the policy of the State to protect marriage as an inviolable social
institution.[241]

Decision-making involving a reproductive health procedure is a private matter which

belongs to the couple, not just one of them. Any decision they would reach would affect
their future as a family because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own
destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State,
which has not shown any compelling interest, the State should see to it that they chart
their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19(c) of R.A. No. 9710, otherwise
known as the “Magna Carta for Women,” provides that women shall have equal rights in
all matters relating to marriage and family relations, including the joint decision on the
number and spacing of their children. Indeed, responsible parenthood, as Section 3(v) of
the RH Law states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional mandate to protect and
strengthen the family by giving to only one spouse the absolute authority to decide
whether to undergo reproductive health procedure.[242]

The right to chart their own destiny together falls within the protected zone of marital
privacy and such state intervention would encroach into the zones of spousal privacy
guaranteed by the Constitution. In our jurisdiction, the right to privacy was first
recognized in Morfe v. Mutuc,[243] where the Court, speaking through Chief Justice
Fernando, held that “the right to privacy as such is accorded recognition independently
of its identification with liberty; in itself, it is fully deserving of constitutional
protection.”[244] Morfe adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,[245] where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights – older than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as
noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of

contraceptives a criminal offense on the ground of its amounting to an unconstitutional
invasion of the right to privacy of married persons. Nevertheless, it recognized the zone
of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that “specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. Various guarantees create zones of
privacy.”[246]

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who
will be undergoing a procedure, is already a parent or has had a miscarriage. Section 7
of the RH law provides:

SEC. 7. Access to Family Planning. – X x x.

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern
methods of family planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the decision
making process of the minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because there is a need to
tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice,
and guidance of her own parents. The State cannot replace her natural mother and
father when it comes to providing her needs and comfort. To say that their consent is no
longer relevant is clearly anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and strengthen the family as an
inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that “the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.”[247] In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective “primary” to modify the right of parents. It
imports the assertion that the right of parents is superior to that of the State.
[248]
 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control
over their minor-child or the right of the spouses to mutually decide on matters which
very well affect the very purpose of marriage, that is, the establishment of conjugal and
family life, would result in the violation of one’s privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining
close family ties and violative of the recognition that the State affords couples entering
into the special contract of marriage to as one unit in forming the foundation of the
family and society.

The State cannot, without a compelling state interest, take over the role of parents in
the care and custody of a minor child, whether or not the latter is already a parent or
has had a miscarriage. Only a compelling state interest can justify a state substitution of
their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the
second paragraph of Section 7 or with respect to the consenting spouse under Section
23(a)(2)(i), a distinction must be made. There must be a differentiation between access
to information  about family planning services, on one hand, and access to the
reproductive health procedures and modern family planning methods themselves, on
the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under
the exception in the second paragraph of Section 7 that would enable her to take proper
care of her own body and that of her unborn child. After all, Section 12, Article II of the
Constitution mandates the State to protect both the life of the mother as that of the
unborn child. Considering that information to enable a person to make informed
decisions is essential in the protection and maintenance of ones’ health, access to such
information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they
are not prohibited to exercise parental guidance and control over their minor child and
assist her in deciding whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-

threatening cases that require the performance of emergency procedures. In such
cases, the life of the minor who has already suffered a miscarriage and that of the
spouse should not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate medical care urgently
needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)[249] should be struck down.

By effectively limiting the requirement of parental consent to “only in elective surgical
procedures,” it denies the parents their right of parental authority in cases where what
is involved are “non-surgical procedures.” Save for the two exceptions discussed above,
and in the case of an abused child as provided in the first sentence of Section 23(a)(2)
(ii), the parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional mandate
to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating

the teaching of Age-and Development-Appropriate Reproductive Health Education
under threat of fine and/or imprisonment violates the principle of academic freedom.
According to the petitioners, these provisions effectively force educational institutions
to teach reproductive health education even if they believe that the same is not suitable
to be taught to their students.[250] Citing various studies conducted in the United States
and statistical data gathered in the country, the petitioners aver that the prevalence of
contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown
of families; the acceptance of abortion and euthanasia; the “feminization of poverty”;
the aging of society; and promotion of promiscuity among the youth.[251]

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law
is premature because the Department of Education, Culture and Sports has yet to
formulate a curriculum on age-appropriate reproductive health education. One can only
speculate on the content, manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict the religious beliefs of the
petitioners and validate their apprehensions. Thus, considering the premature nature of
this particular issue, the Court declines to rule on its constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support of the Government. Like the
1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become
productive members of society. Notably, it places more importance on the role of
parents in the development of their children by recognizing that said role shall
be “primary,” that is, that the right of parents in upbringing the youth is superior to that
of the State.[252]

It is also the inherent right of the State to act as parens patriae to aid parents in the
moral development of the youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important role in nation building.
[253]
 Considering that Section 14 provides not only for the age-appropriate-reproductive
health education, but also for values formation; the development of knowledge and
skills in self-protection against discrimination; sexual abuse and violence against women
and children and other forms of gender based violence and teen pregnancy; physical,
social and emotional changes in adolescents; women’s rights and children’s rights;
responsible teenage behavior; gender and development; and responsible parenthood,
and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself
provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents – the Court finds that the legal
mandate provided under the assailed provision supplements, rather than supplants, the
rights and duties of the parents in the moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health

education program shall be developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By imposing such a condition,
it becomes apparent that the petitioners’ contention that Section 14 violates Article XV,
Section 3(1) of the Constitution is without merit.[254]

While the Court notes the possibility that educators might raise their objection to their
participation in the reproductive health education program provided under Section 14
of the RH Law on the ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the
due process clause of the Constitution. According to them, Section 23 (a)(1) mentions a
“private health service provider” among those who may be held punishable but does
not define who is a “private health care service provider.” They argue that confusion
further results since Section 7 only makes reference to a “private health care
institution.”

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals
operated by religious groups from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these institutions are also exempt
from giving reproductive health information under Section 23(a)(1), or from rendering
reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing
of incorrect information, but at the same time fails to define “incorrect information.”

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and
differ as to its application. It is repugnant to the Constitution in two respects: (1) it
violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
[255]
 Moreover, in determining whether the words used in a statute are vague, words
must not only be taken in accordance with their plain meaning alone, but also in relation
to other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be construed
together with the other parts and kept subservient to the general intent of the whole
enactment.[256]

As correctly noted by the OSG, in determining the definition of “private health care
service provider,” reference must be made to Section 4(n) of the RH Law which defines a
“public health service provider,” viz:

(n) Public health care service provider refers to: (1) public health care institution, which
is duly licensed and accredited and devoted primarily to the maintenance and operation
of facilities for health promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public health care professional, who is
a doctor of medicine, a nurse or a midwife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone
training programs under any accredited government and NGO and who voluntarily
renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines
promulgated by the Department of Health (DOH).

Further, the use of the term “private health care institution” in Section 7 of the law,
instead of “private health care service provider,” should not be a cause of confusion for
the obvious reason that they are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modern family planning methods,
includes exemption from being obligated to give reproductive health information and to
render reproductive health procedures. Clearly, subject to the qualifications and
exemptions earlier discussed, the right to be exempt from being obligated to render
reproductive health service and modern family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and to render
reproductive health procedures. The terms “service” and “methods” are broad enough
to include the providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health
care service providers who intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and services. For ready reference,
the assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

From its plain meaning, the word “incorrect” here denotes failing to agree with a copy
or model or with established rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to coincide with the truth.[257] On
the other hand, the word “knowingly” means with awareness or deliberateness that is
intentional.[258] Used together in relation to Section 23(a)(1), they connote a sense of
malice and ill motive to mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in
accordance with what is acceptable in medical practice. While health care service
providers are not barred from expressing their own personal opinions regarding the
programs and services on reproductive health, their right must be tempered with the
need to provide public health and safety. The public deserves no less.

7-Equal Protection

The petitioners also claim that the RH Law violates the equal protection clause under
the Constitution as it discriminates against the poor because it makes them the primary
target of the government program that promotes contraceptive use. They argue that,
rather than promoting reproductive health among the poor, the RH Law introduces
contraceptives that would effectively reduce the number of the poor. Their bases are
the various provisions in the RH Law dealing with the poor, especially those mentioned
in the guiding principles[259] and definition of terms[260] of the law.

They add that the exclusion of private educational institutions from the mandatory
reproductive health education program imposed by the RH Law renders it
unconstitutional.

In Biraogo v. Philippine Truth Commission, [261] the Court had the occasion to expound on
the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality
of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is
the equal protection clause.

“According to a long line of decisions, equal protection simply requires that all persons
or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed.” It “requires public bodies and institutions to treat similarly
situated individuals in a similar manner.” “The purpose of the equal protection clause is
to secure every person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the state’s duly constituted authorities.” “In other words, the
concept of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are irrelevant
to a legitimate governmental objective.”

The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class. “Superficial
differences do not make for a valid classification.”

For a classification to meet the requirements of constitutionality, it must include or

embrace all persons who naturally belong to the class. “The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should
possess the same characteristics in equal degree. Substantial similarity will suffice; and
as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does not
justify the non-application of the law to him.”

The classification must not be based on existing circumstances only, or so constituted as

to preclude addition to the number included in the class. It must be of such a nature as
to embrace all those who may thereafter be in similar circumstances and conditions. It
must not leave out or “underinclude” those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government’s reproductive
health care program is not a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by providing that they be given
priority in addressing the health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall be priority for the
needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only seeks to target the poor to
reduce their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(l) explains, the “promotion and/or
stabilization of the population growth rate is incidental to the advancement of
reproductive health.”

Moreover, the RH Law does not prescribe the number of children a couple may have
and does not impose conditions upon couples who intend to have children. While the
petitioners surmise that the assailed law seeks to charge couples with the duty to have
children only if they would raise them in a truly humane way, a deeper look into its
provisions shows that what the law seeks to do is to simply provide priority to the poor
in the implementation of government programs to promote basic reproductive health
care.

With respect to the exclusion of private educational institutions from the mandatory
reproductive health education program under Section 14, suffice it to state that the
mere fact that the children of those who are less fortunate attend public educational
institutions does not amount to substantial distinction sufficient to annul the assailed
provision. On the other hand, substantial distinction rests between public educational
institutions and private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of
reproductive health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the
constitutional prohibition against involuntary servitude. They posit that Section 17 of
the assailed legislation requiring private and non-government health care service
providers to render forty-eight (48) hours of pro bono reproductive health services,
actually amounts to involuntary servitude because it requires medical practitioners to
perform acts against their will.[262]
The OSG counters that the rendition of pro bono services envisioned in Section 17 can
hardly be considered as forced labor analogous to slavery, as reproductive health care
service providers have the discretion as to the manner and time of giving pro
bono services. Moreover, the OSG points out that the imposition is within the powers of
the government, the accreditation of medical practitioners with PhilHealth being a
privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with
public interest that it is both a power and a duty of the State to control and regulate it in
order to protect and promote the public welfare. Like the legal profession, the practice
of medicine is not a right but a privileged burdened with conditions as it directly
involves the very lives of the people. A fortiori, this power includes the power of
Congress[263] to prescribe the qualifications for the practice of professions or trades
which affect the public welfare, the public health, the public morals, and the public
safety; and to regulate or control such professions or trades, even to the point of
revoking such right altogether.[264]

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the
presence of force, threats, intimidation or other similar means of coercion and
compulsion.[265] A reading of the assailed provision, however, reveals that it
only encourages private and non-government reproductive healthcare service providers
to render pro bono service. Other than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to choose which kind of health service
they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro
bono service against their will. While the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the Court does not consider the same to
be an unreasonable burden, but rather, a necessary incentive imposed by Congress in
the furtherance of a perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized
that conscientious objectors are exempt from this provision as long as their religious
beliefs and convictions do not allow them to render reproductive health service, pro
bono or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to
determine whether or not a supply or product is to be included in the Essential Drugs
List (EDL).[266]

The Court finds nothing wrong with the delegation. The FDA does not only have the
power but also the competency to evaluate, register and cover health services and
methods. It is the only government entity empowered to render such services and
highly proficient to do so. It should be understood that health services and methods fall
under the gamut of terms that are associated with what is ordinarily understood as
“health products.” In this connection, Section 4 of R.A. No. 3720, as amended by R.A.
No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be
called the Food and Drug Administration (FDA) in the Department of Health (DOH). Said
Administration shall be under the Office of the Secretary and shall have the following
functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of
this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and
fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for
the issuance of appropriate authorization and spot-check for compliance with
regulations regarding operation of manufacturers, importers, exporters, distributors,
wholesalers, drug outlets, and other establishments and facilities of health products, as
determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters,

wholesalers, retailers, consumers, and non-consumer users of health products to report
to the FDA any incident that reasonably indicates that said product has caused or
contributed to the death, serious illness or serious injury to a consumer, a patient, or
any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty (60) days only after due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a consumer or
patient, or is found to be imminently injurious, unsafe, dangerous, or grossly
deceptive, and to require all concerned to implement the risk management plan which
is a requirement for the issuance of the appropriate authorization;

x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are
specific to enable the agency to carry out the mandates of the law. Being the country’s
premiere and sole agency that ensures the safety of food and medicines available to the
public, the FDA was equipped with the necessary powers and functions to make it
effective. Pursuant to the principle of necessary implication, the mandate by Congress
to the FDA to ensure public health and safety by permitting only food and medicines
that are safe includes “service” and “methods.” From the declared policy of the RH Law,
it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards. The philosophy behind the
permitted delegation was explained in Echagaray v. Secretary of Justice,[267] as follows:

The reason is the increasing complexity of the task of the government and the growing
inability of the legislature to cope directly with the many problems demanding its
attention. The growth of society has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation has become necessary. To many of the
problems attendant upon present day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region of Muslim

Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under Section 17
of the Local Government Code. Said Section 17 vested upon the LGUs the duties and
functions pertaining to the delivery of basic services and facilities, as follows:

SECTION 17. Basic Services and Facilities. –

(a) Local government units shall endeavor to be self-reliant and shall continue exercising
the powers and discharging the duties and functions currently vested upon them. They
shall also discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units shall likewise exercise
such other powers and discharge such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies
on the aspect of providing for basic services and facilities in their respective
jurisdictions, paragraph (c) of the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities, programs and services.[268] Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and

infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special laws,
pertinent executive orders, and those wholly or partially funded from foreign
sources, are not covered under this Section, except in those cases where the local
government unit concerned is duly designated as the implementing agency for such
projects, facilities, programs and services. [Emphases supplied]

The essence of this express reservation of power by the national government is that,
unless an LGU is particularly designated as the implementing agency, it has no power
over a program for which funding has been provided by the national government under
the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.[269] A complete relinquishment of central
government powers on the matter of providing basic facilities and services cannot be
implied as the Local Government Code itself weighs against it.[270]

In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities,[271] the hiring of skilled health professionals,[272] or
the training of barangay health workers,[273] it will be the national government that will
provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which
the local government is called upon to implement like the RH Law.

Moreover, from the use of the word “endeavor,” the LGUs are merely encouraged to
provide these services. There is nothing in the wording of the law which can be
construed as making the availability of these services mandatory for the LGUs. For said
reason, it cannot be said that the RH Law amounts to an undue encroachment by the
national government upon the autonomy enjoyed by the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be
equally applied to the ARMM. The RH Law does not infringe upon its autonomy.
Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the
ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the
RH Law in the autonomous region, refer to the policy statements for the guidance of the
regional government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy
granted the ARMM, the Constitution and the supporting jurisprudence, as they now
stand, reject the notion of imperium et imperio in the relationship between the national
and the regional governments.[274] Except for the express and implied limitations
imposed on it by the Constitution, Congress cannot be restricted to exercise its inherent
and plenary power to legislate on all subjects which extends to all matters of general
concern or common interest.[275]

11 - Natural Law

With respect to the argument that the RH Law violates natural law,[276] suffice it to say
that the Court does not duly recognize it as a legal basis for upholding or invalidating a
law. Our only guidepost is the Constitution. While every law enacted by man emanated
from what is perceived as natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by
an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions
on inherent rights espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.[277] Unless, a natural right has been transformed into a
written law, it cannot serve as a basis to strike down a law. In Republic v.
Sandiganbayan,[278] the very case cited by the petitioners, it was explained that the
Court is not duty-bound to examine every law or action and whether it conforms with
both the Constitution and natural law. Rather, natural law is to be used sparingly only in
the most peculiar of circumstances involving rights inherent to man where no law is
applicable.[279]

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life.
It does not allow abortion in any shape or form. It only seeks to enhance the population
control program of the government by providing information and making non-
abortifacient contraceptives more readily available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to
provide access to medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of society cannot be
trampled upon in pursuit of what the law hopes to achieve. After all, the Constitutional
safeguard to religious freedom is a recognition that man stands accountable to an
authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group
cannot be allowed to impose its beliefs on the rest of the society. Philippine modern
society leaves enough room for diversity and pluralism. As such, everyone should be
tolerant and open-minded so that peace and harmony may continue to reign as we exist
alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court
that what it seeks to address is the problem of rising poverty and unemployment in the
country. Let it be said that the cause of these perennial issues is not the large
population but the unequal distribution of wealth. Even if population growth is
controlled, poverty will remain as long as the country’s wealth remains in the hands of
the very few.

At any rate, population control may not be beneficial for the country in the long run.
The European and Asian countries, which embarked on such a program generations ago,
are now burdened with ageing populations. The number of their young workers is
dwindling with adverse effects on their economy. These young workers represent a
significant human capital which could have helped them invigorate, innovate and fuel
their economy. These countries are now trying to reverse their programs, but they are
still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas
Filipino Workers. This is because we have an ample supply of young able-bodied
workers. What would happen if the country would be weighed down by an ageing
population and the fewer younger generation would not be able to support them? This
would be the situation when our total fertility rate would go down below the
replacement level of two (2) children per woman.[280]

Indeed, at the present, the country has a population problem, but the State should not
use coercive measures (like the penal provisions of the RH Law against conscientious
objectors) to solve it. Nonetheless, the policy of the Court is non-interference in the
wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to
say what the law is as enacted by the lawmaking body. That is not the same as saying
what the law should be or what is the correct rule in a given set of circumstances. It is
not the province of the judiciary to look into the wisdom of the law nor to question
the policies adopted by the legislative branch. Nor is it the business of this Tribunal to
remedy every unjust situation that may arise from the application of a particular law.
It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must
carry out the delicate function of interpreting the law, guided by the Constitution and
existing legislation and mindful of settled jurisprudence. The Court's function is
therefore limited, and accordingly, must confine itself to the judicial task of saying what
the law is, as enacted by the lawmaking body.[281]

Be that as it may, it bears reiterating that the RH Law is a mere compilation

and enhancement of the prior existing contraceptive and reproductive health laws, but
with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive
Act (R.A. No. 4729) and the reproductive health for women or The Magna Carta of
Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of “no-abortion” and “non-coercion” in the adoption of any family
planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares

R.A. No. 10354 as NOT UNCONSTITUTIONAL except  with respect to the following
provisions which are declared UNCONSTITUTIONAL:

1] Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or minors who have suffered a
miscarriage access to modern methods of family planning without written consent from
their parents or guardian/s;

2] Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs and services on reproductive
health regardless of his or her religious beliefs.

3] Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow
a married individual, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to undergo reproductive health procedures without the consent
of the spouse;

4] Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit
the requirement of parental consent only to elective surgical procedures.

5] Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health care service provider within the same facility
or one which is conveniently accessible regardless of his or her religious beliefs;

6] Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any public officer who refuses to support reproductive
health programs or shall do any act that hinders the full implementation of a
reproductive health program, regardless of his or her religious beliefs;

7] Section 17 and the corresponding provision in the RH-IRR regarding the rendering
of pro bono reproductive health service in so far as they affect the conscientious
objector in securing PhilHealth accreditation; and

8] Section 3.01(a) and Section 3.01 (j) of the RH-IRR, which added the qualifier
“primarily” in defining abortifacients and contraceptives, as they are ultra vires and,
therefore, null and void for contravening Section 4(a) of the RH Law and violating
Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its
Order, dated July 16, 2013, is hereby LIFTED, insofar as the provisions of R.A. No. 10354
which have been herein declared as constitutional.

SO ORDERED.

Velasco, Jr., Peralta, Bersamin, Villarama, Jr., and Perez, JJ., concur.

Sereno, C.J., tingnan ang aking opinyong sumasamg-ayon at sumasalungat.
Carpio, J, see concurring opinion.
Leonardo-De Castro, J., with separate concurring opinion.
Brion, J., see separate concurring opinion.
Del Castillo, J., see concurring and dissenting opinion.
Abad, J., see concurring opinion.
Reyes, and Perlas-Bernabe, J., see concurring and dissenting 
Leonen, J., see separate dissent.
[1]
 Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary,  G.R.
No. 153888, July 9, 2003; 405 SCRA 497, 504.

[2]
 See , last visited on November 5, 2013; See also , last visited on November 5, 2013.

[3]
 See , last visited on November 5, 2013; See also , last visited on November 5, 2013.

[4]
 See , last visited November 5, 2013; See also , last visited November 5, 2013.

[5]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 204819; rollo  (G.R. No. 204819), pp. 3-32.

[6]
 With Prayer for the Urgent Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction; docketed as G.R. No. 204934; rollo (G.R. No. 204934), pp. 3-76.

[7]
 Also proceeding in her personal capacity a citizen and as a member of the Bar.

[8]
 Spouses Reynaldo S. Luistro & Rosie B. Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina
Racho, Fernand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on
behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C.
Tansingco, Miguel Fernando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their
minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor &
Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on
behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves
and on behalf of their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi
Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on
behalf of her minor children Elijah General Juatas and Elian Gabriel Juatas, Salvacion M.
Monteiro, Emily R. Laws, Joseph R. Laws & Katrina R. Laws

[9]
 With Prayer for Injunction; docketed as G.R. No. 204957.

[10]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 204988; rollo (G.R. No. 204988), pp. 5-35.

[11]
 Through and together with its president Nestor B. Lumicao, M.D.

[12]
 Through and together with its representative/member of the school board Dr.
Rodrigo M. Alenton, M.D.

[13]
 Rosemarie R. Alenton, Imelda G. Ibarra, Cpa, Lovenia P. Naces, Phd., Anthony G.
Nagac, Earl Anthony C. Gambe And, Marlon I. Yap.
[14]
 Docketed as G.R. No. 205003; Petition is entitled “Petition (To Declare As
Unconstitutional Republic Act No. 10354).” The petition fails to provide any description
as to nature of the suit under the Rules of Court; rollo (G.R. No. 205003), pp. 3-40.

[15]
 With prayer for the issuance of a Temporary Restraining Order; docketed as G.R. No.
205043; rollo (G.R. No. 205043), pp. 3-16.

[16]
 Through its vice president and co-founder, Eduardo B.Olaguer.

[17]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205138; rollo (G.R. No. 205138), pp. 3-50.

[18]
 Through and together with its president Atty. Ricardo M. Ribo.

[19]
 Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno And Baldomero Falcone.

[20]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; The petition fails to provide any description as to nature of the suit under the
Rules of Court; docketed as G.R. No. 205478; rollo (G.R. No. 205478), pp. 3-26.

[21]
 Jacqueline H. King, M.D., Cynthia T. Domingo, M.D., Josephine Millado-Lumitao, M.D.,
Anthony Perez, Michael Anthony G. Mapa, Carlos Antonio Palad, Wilfredo Jose, Claire
Navarro, Anna Cosio, Gabriel Dy Liacco

[22]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205491;  rollo (G.R. No. 205491), pp. 3-13.

[23]
 With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205720; rollo (G.R. No. 205720), pp. 3-90.

[24]
 Through and together with its executive director, Lorna Melegrito.

[25]
 Joselyn B. Basilio, Robert Z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cristina A.
Montes, Raul Antonio A. Nidoy, Winston Conrad B. Padojinog, Rufino L. Policarpio III.

[26]
 Docketed as G.R. No. 206355, rollo  (G.R. No. 206355), pp. 3-32.

[27]
 Through and together with its co-petitioners, Attys. Ramon Pedrosa, Cita Borromeo-
Garcia, Stella Acedera, and Berteni Cataluña Causing.

[28]
 With prayer for a Writ of Preliminary Injunction; docketed as G.R. No. 207111; rollo
(G.R. No. 207111), pp. 3-51.

[29]
 Mary M. Imbong, Anthony Victorio B. Lumicao, Joseph Martin Q. Verdejo, Antonio
Emma R. Roxas and Lota Lat-Guerrero.

[30]
 With prayer for a Writ of Preliminary Injunction; docketed as G.R. No.
207172; rollo  (G.R. No. 207172), pp. 3-56.

[31]
 Spouses Juan Carlos Artadi Sarmiento and Francesca Isabelle Besinga-Sarmiento, and
Spouses Luis Francis A. Rodrigo, Jr. and Deborah Marie Veronica N. Rodrigo.

[32]
 Docketed as G.R. No. 207563; rollo (G.R. No. 207563), pp. 3-15.

[33]
 Rollo (G.R. No. 204934), pp. 138-155.

[34]
  Rollo (G.R. No. 204819), pp. 1248-1260.

[35]
Petition, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 8-10; Petition, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 15-25;
Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-
15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11; Petition,  Philippine
Alliance of XSeminarians (PAX) v. Ochoa, rollo  (G.R. No. 205138), pp. 8-36;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15;
Petition, Juat v. Ochoa, rollo  (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist
(BUHAY) v. Ochoa, rollo (G.R. No. 204819), pp. 1255-1256.

[36]
Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo  (G.R. No.
204934), pp. 26-28; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R.
No. 204988), pp. 15-16; Petition,  Echavez v. Ochoa, rollo  (G.R. No. 205478), pp. 13-14;
Petition,  Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 30-
35.

[37]
 Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo  (G.R. No.
204957), pp. 26-27; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo  (G.R. No. 205138), pp. 39-44; Petition, Tatad v. Office of the President, rollo (G.R.
No. 205491), pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo  (G.R.
No. 205720), pp. 59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the
President, rollo (G.R. No. 206355), pp. 25-26.

[38]
 Petition, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 20-22; Petition, Alliance for
the Family Foundation, Inc. (ALFI) v. Ochoa, rollo  (G.R. No. 204934), pp. 34-38; Petition,
Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo  (G.R. No. 204957), pp. 26-
27; Petition,  Echavez v. Ochoa, rollo  (G.R. No. 205478), pp. 6-7; Petition, Pro-Life
Philippines Foundation, Inc. v. Ochoa, rollo  (G.R. No. 205720), pp. 56-75;
Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No.
206355), pp. 16-22; Petition, Juat v. Ochoa, rollo (G.R. No. 207111), pp.28-33;
Petition,  Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 12-16.

[39]
 Section 5.23 Skilled Health Professional as a Conscientious Objector. In order to be
considered a conscientious objector, a skilled health professional shall comply with the
following requirements:

a) Submission to the DOH of an affidavit stating the modern family planning methods
that he or she refuses to provide and his or her reasons for objection;
b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent
location and using a clear/legible font, enumerating the reproductive health services he
or she refuses to provide; and c) Other requirements as determined by the DOH. x x x.

Provided, That skilled health professionals who are public officers such as, but not
limited to, Provincial, City, or Municipal Health Officers, medical officers, medical
specialists, rural health physicians, hospital staff nurses, public health nurses, or rural
health midwives, who are specifically charged with the duty to implement these
Rules cannot be considered as conscientious objectors. x x x (Emphases Ours)

[40]
 Joint Memorandum, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 2617-2619.

[41]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), p. 40; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp.6-7; Petition, Pro-
Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), p. 81.

[42]
 Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo  (G.R. No. 205720), pp.
63-64; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp.
20-23.

[43] 
Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp.
16-48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

[44]
 Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp.
16-48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

[45]
 Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo  (G.R. No.
204957), pp. 30-31; Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 1247-
1250; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R.
No. 206355), pp. 25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No.
207172), pp. 43-45.

[46]
 Joint Memorandum, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 2626-2637;
Petition, Alcantara, pp. 9-13; rollo, (G.R. No. 204934), pp. 146-150; Petition, Pro-Life
Philippines Foundation, Inc. v. Ochoa, rollo  (G.R. No. 205720), pp. 78-81.

[47]
 Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 32-
34.

[48]
 Petition, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 2623-2626; Petition,
Alcantara, pp.5-9;  rollo, (G.R. No. 204934), pp. 142-148; Petition, Serve Life Cagayan De
Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 20-21; Petition, Bugarin v. Office of
the President, rollo  (G.R. No. 205003), pp. 14-16; Petition, Millennium Saint Foundation,
Inc. v. Office of the President, rollo (G.R. No. 206355), p. 16; Petition, Couples for Christ
Foundation, Inc. v. Ochoa, rollo  (G.R. No. 207172), pp. 16-20.

[49]
 Petition, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 14-19; Petition, Alliance for
the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 42-44;
Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
204957), pp. 21-25; Petition, Millennium Saint Foundation, Inc. v. Office of the President,
rollo (G.R. No. 206355), pp. 23-25; Petition, Couples for Christ Foundation, Inc. v. Ochoa,
rollo (G.R. No. 207172), pp. 23-28.

[50]
 Joint Memorandum, Imbong v. Ochoa, rollo  (G.R. No. 204819), pp. 2571-2574;
Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 11-12; Petition, Tatad v. Office of
the President, rollo (G.R. No. 205491), pp. 7-8; Petition, Couples for Christ Foundation,
Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 28-32.

[51]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo  (G.R. No. 205138), pp. 37-38.

[52]
 Section 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof; Task Force for the Family and Life Visayas,
Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 6-10; Echavez v. Ochoa, rollo (G.R. No.
205478), pp. 9-10.

[53]
 Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo  (G.R. No. 205720), pp.
14-30.

[54]
 Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 894-900;
Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 45-48;
Petition, Tillah v. Executive Secretary, rollo (G.R. No. 207563) pp. 6-12.

[55]
 Rollo (G..R. No. 204819), pp. 362-480.

[56]
 Rollo (G..R. No. 204819), pp. 195-353.

[57]
 Rollo (G..R. No. 204819), pp. 487-528.

[58]
 Rollo (G.R. No. 204934), pp. 871-1007.

[59]
 Rollo (G.R. No. 204819), pp.1306-1334; rollo, (G.R. No. 204934), pp. 98-132.

[60]
 Rollo (G.R. No. 204819), pp. 736-780.

[61]
 In her Motion for Leave to Intervene, Senator Pilar Juliana S. Cayetano manifested
that she was adopting as her own the arguments raised by respondents Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez in their Petition for
Intervention; See rollo (G..R. No. 204819), pp. 1731-1783. After being directed by the
Court to file their respective memoranda, intervenors Dr. Esperanza I. Cabral, Jamie
Galvez-Tan, and Dr. Alberto G. Romualdez manifested on November 18, 2013, that they
were adopting the arguments raised by Congressman Lagman in his Joint Memorandum;
See rollo (G..R. No. 204819), pp. 3061-3070. On November 26, 2013, Senator Pilar
Juliana S. Cayetano filed her separate Memorandum; see, rollo (G.R. No. 204819), pp.
3032-3059.
[62]
 Resolution dated March 15, 2013.

[63]
 Resolution, dated July 16, 2013.

[64]
 In its Resolution, dated August 27, 2013, the Court required the parties to also
include the following in their respective memoranda:

1. What is the relation of the first portion of Section 7 on Access to Family Planning
to the theory that R.A. No. 10354 is an anti-poor program that seeks to reduce
the population of the poor?
2. How is the second paragraph of the same section related to the proposition that
R.A. No. 10354 encourages sex among minors?
3. In relation to Section 23 on Prohibited Acts, where in the law can you find the
definition of the term ‘health care service provider’? Is the definition of a ‘public
health care service provider’ found in Section 4, paragraph (n) of the law
sufficient for the Court to understand the meaning of a ‘private health care
service provider’ or should the Court refer to the Implementing Rules and
Regulations which refer to ‘health care providers’?
4. With respect to ‘health care providers’ under the Implementing Rules and
Regulations, does it make a difference that they are called ‘health care providers’
and not ‘health care service providers’? Does the fact that there is a missing word
indicate that there is a difference or that the tautology being proposed actually
refers to different objects? If in the affirmative, is there enough basis to say that
the law is a criminal statute that has sufficient definitions for purposes of punitive
action?
5. In relation to Section 23(a)(1), how will the State be able to locate the programs
and services on which the health care service provider has the duty to give
information? If the terminology of ‘health care service provider’ includes ‘private
health care service provider’, which includes private hospitals and private
doctors, is the State duty-bound to consequently provide these providers with
information on the programs and services that these providers should give
information on?
6. As regards programs, is there a duty on the part of the State to provide a way by
which private health care service providers can have access to information on
reproductive health care programs as defined in Section 4, paragraph (r)? What is
the implication of the fact that the law requires even private parties with the
duty to provide information on government programs on the criminal liability of
private health care service providers?
7. As regards services, what is the distinction between ‘information’ and ‘services’
considering that ‘services’ in different portions of the statute include providing of
information?
8. What are the specific elements of every sub-group of crime in Section 23 and
what are the legal bases for the determination of each element?
9. Are there existing provisions in other statutes relevant to the legal definitions
found in R.A. No. 10354?
10. Why is there an exemption for the religious or conscientious objector in
paragraph (3) of Section 23 and not in paragraphs (1) and (2)? What is the
distinction between paragraph (3) and paragraphs (1) and (2)?
11. Section 23(a)(3) penalizes refusal to extend quality health care services and
information ‘on account of the person’s marital status, gender, age, religious
 convictions, personal circumstances, or nature of work.’ What if the refusal is not
on account of one’s marital status, gender, age, religious convictions, personal
circumstances, or nature of work, or what if the refuser simply does not state the
reason for the refusal? Will there still be a criminal liability under Section 23(a)
(3)?
12. Still on Section (23)(a)(3) on referring a person to another facility or provider, is
this the same or analogous to referral of a person to seek second opinion? What
is the medical standard for the provision of a second opinion? In referring to
another professional or service provider for a second opinion, is it the patient
who is not comfortable with the opinion given by the first doctor that triggers the
duty or option to refer? How is it different with the situation in Section 23(a)(3)
when it is the doctor who is not comfortable about giving an opinion? Is the
difference legally material?
13. How does Section 23, paragraph (c) relate to Article 134 the Labor Code which
requires employers to provide family planning services?
14. Section 24 provides that in case the offender is a juridical person, the penalties in
the statute shall be imposed on the president or any responsible officer. For each
offense in Section 23, how will the corporate officer be made responsible if there
is no actual participation by the hospital board directors or officers of such
action? Does Section 24 in relation to Section 23 require corporate action? What
is the situation being contemplated in the second paragraph of Section 24 before
there can be accountability for criminal violations?
15. Section 7 provides that access of minors to information and family planning
services must be with the written consent of parents or guardians. Is there a
penalty in the law for those who will make these information and services (e.g.,
contraceptives) available to minors without the parent’s consent? How does this
relate to Section 14 which requires the Department of Education to formulate a
curriculum which ‘shall be used by public schools’ and ‘may be adopted by
private schools’? Is there a penalty for teaching sex education without the
parents’ or guardians’ written consent? Correlatively, is there a penalty for
private schools which do not teach sex education as formulated by the DepEd
considering the use of the word ‘may’?
[65]
 Section 1, R.A. No. 4729

[66]
 Entitled “An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines.”

[67]
 See http://www.pop.org/content/coercive-population-ploys-in-philippines-1428, last
visited October 17, 2013.

[68]
 Entitled “Revising the Population Act of Nineteen Hundred And Seventy-One.”

[69]
 last visited October 17, 2013.

[70]
 Held in Cairo, Egypt from September 5–13, 1994.

[71]
 Section 17, R.A. 9710.

[72]
 See ; last accessed February 20, 2014.
[73]
 Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo  (G.R. No. 204934), p.
1408.

[74]
 Id.

[75]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 376.

[76]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 377.

[77]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 378.

[78]
 G.R. No. 178552, October 5, 2010, 632 SCRA 146, 166.

[79]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 385, 387-388.

[80]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), pp.381-384.

[81]
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[82]
 Constitution, Art. VI, Sec. 1.

[83]
 Constitution, Art. VII, Sec. 1.

[84]
 Constitution, Art. VIII, Sec. 1.

[85]
 Supra note 81.

[86]
 See Association of Small Landowners in the Phil., Inc., et al. v. Secretary of Agrarian
Reform, 256 Phil. 777, 799 (1989).

[87]
 Francisco, Jr. v. The House of Representatives, G.R. No. 160261, November 10, 2003,
citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[88]
 Garcia v. Executive Secretary,  602 Phil. 64, 77-78 (2009).

[89]
 Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270,
326-327.

[90]
 Biraogo v. The Philippine Truth Commission, G.R. No. 192935 & G.R. No. 193036,
December 7, 2010, 637 SCRA 78, 177.

[91]
  Tañada v. Angara,  338 Phil. 546, 575 (1997).

[92]
 453 Phil. 586 (2003).

[93]
 G.R. No. 188078, 25 January 2010, 611 SCRA 137.

[94]
 G.R No. 187167, July 16, 2011, 655 SCRA 476.
[95]
  Francisco v. House of Representatives, 460 Phil. 830, 882-883 (2003), citing Florentino
P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial
Review And Decision Making, 37 AMJJUR 17, 24 (1992).

[96]
  Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010, 637
SCRA 78, 148; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No.178552, October 5, 2010, 632 SCRA 146, 166-167; Senate of the Philippines v.
Ermita, 522 Phil. 1, 27 (2006); Francisco v. House of Representatives, 460 Phil. 830, 892
(2003).

[97]
 Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 375-376.

[98]
 Comment-In-Intervention, Hontiveros, et al., rollo, (G.R. No. 204934), pp. 106-109;
Comment-In-Intervention, Cabral et al., rollo, (G.R. No. 204819), pp. 500-501.

[99]
 Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 (2007).

[100]
  Information Technology Foundation of the Philippines v. Commission on
Elections, 499 Phil. 281, 304-305 (2005).

[101]
 Lawyers Against Monopoly And Poverty (LAMP) v. The Secretary of Budget and
Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 383.

[102]
 The Province Of North Cotabato v. The Government of the Republic of the
Philippines, 589 Phil. 387, 481 (2008).

[103]
 Id. at 483.

[104]
  Tañada v. Angara, 338 Phil. 546, 574 (1997).

[105]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 381.

[106]
 See United States v. Salerno, 481 U.S. 739 (1987).

[107]
 The First Amendment of the US Constitution reads: Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging 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.

[108]
 Romualdez v. Commission on Elections, 576 Phil. 357 (2008); Romualdez v. Hon.
Sandiganbayan, 479 Phil. 265 (2004); Estrada v. Sandiganbayan, 421 Phil. 290 (2001).

[109]
 Resolution, Romualdez v. Commission on Elections,  594 Phil. 305, 316 (2008).

[110]
 Constitution, Article VIII, Section 1.

[111]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 375-376.
[112]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), p. 384.

[113]
 Anak Mindanao Party-List Group v. The Executive Secretary, 558 Phil. 338, 350
(2007).

[114]
  Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v.
Carr, 369 U.S. 186 (1962).

[115]
 Dissenting Opinion, J. Carpio; Romualdez v. Commission on Elections, 576 Phil. 357,
406 (2008).

[116]
 Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug
Enforcement Agency, 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of
Energy, 346 Phil 321 (1997);  De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208
SCRA 420, 422.

[117]
 503 Phil. 42, 53 (2005).

[118]
 84 Phil. 368, 373 (1949).

[119]
 464 Phil. 375, 385 (2004).

[120]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 388-389.

[121]
 The Province Of North Cotabato v. The Government of the Republic of the
Philippines,  supra note 102; Ortega v. Quezon City Government, 506 Phil. 373, 380
(2005); and Gonzales v. Comelec, 137 Phil. 471 (1969).

[122]
 Section 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.

[123]
 Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
204957), pp. 6-10; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 9-10.

[124]
 Joint Memorandum, Lagman, rollo, (G.R. No. 204819) pp. 212-214.

[125]
 Consolidated Comment, OSG, rollo (G.R. No. 204819, pp.389-393.

[126]
 ALFI Memorandum, rollo  (G..R. No. 204934), p. 1396.

[127]
 ALFI Memorandum, rollo  (G..R. No. 204934), p. 1396.

[128]
 ALFI Memorandum, rollo (G..R. No. 204934), p. 1396.

[129]
 Cruz, Philippine Political Law, 2002 Edition, pp. 157-158; citing 82 CJS 365.

[130]
 Petition, Imbong v. Ochoa, rollo (G.R. No. 204819), pp. 8-10; Petition, Alliance for
the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 15-25;
Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-
15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11; Petition, Philippine
Alliance of XSeminarians (PAX) v. Ochoa, rollo  (G.R. No. 205138), pp. 8-36;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15;
Petition,  Juat v. Ochoa, rollo  (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist
(BUHAY) v. Ochoa, rollo (G.R. No. 204819), pp. 1255-1256.

[131]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), pp. 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R.
No. 204988), pp. 13-15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11;
Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138), pp.
8-36; Petition,  Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13;
Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No.
206355), pp. 11-15; Petition, Juat v. Ochoa, rollo (G.R. No. 207111), pp. 17-18;
Petition, Buhay Partylist (BUHAY) v. Ochoa, rollo (G.R. No. 204819), pp. 1255-1256.

[132]
 Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp.
14-30.

[133]
 Memorandum, Alcantara, rollo (G.R. No. 204819), p. 2133; Reply, Olaguer v. Ona,
rollo  (G.R. No. 205043), pp. 339-340.

[134]
 Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 393-396; Comment-In-
Intervention, Lagman, rollo, (G.R. No. 204819), pp. 230-233; Comment-In-Intervention,
C4RH, rollo (G.R. No. 204819), pp. 1091-1192; Hontiveros, rollo  (G.R. No. 204934), pp.
111-116; Memorandum, Cayetano, ,  rollo (G.R. No. 204819), pp. 3038-3041.

[135]
 Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 396-410.

[136]
 Comment-In-Intervention, Lagman,  rollo, (G.R. No. 204819), pp. 225-342.

[137]
 Article 3, Universal Declaration of Human Rights.

[138]
 See Republic Act No. 4729, dated June 18, 1966.

[139]
 See http://www.pop.org/content/coercive-population-ploys-in-philippines-1428, last
visited October 17, 2013.

[140]
 , last visited October 17, 2013.

[141] 

*
 During the deliberation, it was agreed that the individual members of the Court can
express their own views on this matter.

[142]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), pp. 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R.
No. 204988), pp. 13-15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11;
Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138), pp.
8-36; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13; Petition, Millennium
Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15;
Petition, Juat v. Ochoa, rollo (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist
(BUHAY) v. Ochoa, rollo (G.R. No. 204819), pp. 1255-1256.

[143]
 Comment-In-Intervention, Lagman, rollo, (G.R. No. 204819), pp. 225-342.

[144]
 G.R. No. 202242, July 17, 2012, 676 SCRA 579.

[145]
 Webster’s Third International Dictionary, 1993 Edition, p. 469.

[146]
 Black’s Law Dictionary, Fifth Edition, p. 262.

[147]
 G.R. No. 182836, October 13, 2009, 618 Phil. 634 (2009).

[148]
 Gonzales v. Carhart (Nos. 05-380 and 05-1382), No. 05–380, 413 F. 3d 791; 05–1382,
435 F. 3d 1163,

[149]
 http://www.law.cornell.edu/supct/html/05-380.ZO.html, last visited February 15,
2014.

[150]
 Record of the Constitutional Commission, Volume 4, September 16, 1986, p. 668.

[151]
 Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 596.

[152]
 Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 669.

[153]
 Record of the Constitutional Commission, Volume 4, September 19, 1986, p. 800.

[154]
 Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711.

[155]
 Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711.

[156]
 Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 745.

[157]
 TSN, July 9, 2013, pp. 23-24.

[158]
 Id.

[159]
 4th Edition, p. 375

[160]
 Id, p. 609

[161]
 Sumpaico, Gutierrez, Luna, Pareja, Ramos and Baja-Panlilio, 2nd Edition, (2002), pp.
76-77.

[162]
 Moore, Persaud, Torchia, The Developing Human: Clinically Oriented Embryology,
International Edition, 9th Edition (2013), pp. 1-5, 13.

[163]
 O'Rahilly, Ronan and Muller, Fabiola, Human Embryology & Teratology. 2nd edition.
New York: Wiley-Liss, 1996, pp. 8, 29, cited at:
http://www.princeton.edu/~prolife/articles/embryoquotes2.html, last visited February
15, 2014.

[164]
 From https://www.philippinemedicalassociation.org/downloads/circular-
forms/Position-Paper-on-the-Republic-Health-Bill-%28Responsible-Parenthood-Bill
%29.pdf, last visited March 26, 2014.

[165]
 Comment-In-Intervention, Lagman, rollo, (G.R. No. 204819), pp. 225-342.

[166]
 Id.

[167]
 Id.

[168]
 See , last visited April 7, 2014.

[169]
 Joint Memorandum of the House of Representatives and Respondent-Intervenor
Rep. Edcel C. Lagman), Section 40, Rollo,  G.R. No. 204819, p. 2343.

[170]
 Concurring Opinion (Justice Carpio), p. 3.

[171]
 See TSN, July 9, 2013, p. 100.

[172]
 Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p.
25.

[173]
 Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum
to reach and be implanted in the mother’s womb upon determination of the Food and
Drug Administration (FDA).

xxxx

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother’s womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA).

[174]
 Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p.
25.

[175]
 Separate Opinion (Justice Del Castillo), p. 19.

[176]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), pp. 26-28; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R.
No. 204988), pp. 15-16; Petition,  Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 13-14;
Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 30-
35.

[177]
 Memorandum, Alliance for the Family Foundation, rollo,  (G.R. No. 204934), pp.
1419-1445.

[178]
 Section 4. Definition of Terms. – For the purpose of this Act, the following terms shall
be defined as follows:

xxxx

(p) Reproductive Health (RH) refers to the state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity, in all matters relating to
the reproductive system and to its functions and processes. This implies that people are
able to have a responsible, safe, consensual and satisfying sex life, that they have the
capability to reproduce and the freedom to decide if, when, and how often to do so.
This further implies that women and men attain equal relationships in matters related to
sexual relations and reproduction.

[179]
 Section 4. Definition of Terms. – For the purpose of this Act, the following terms shall
be defined as follows:

xxxx

(w) Sexual health refers to a state of physical, mental and social well-being in relation to
sexuality. It requires a positive and respectful approach to sexuality and sexual
relationships, as well as the possibility of having pleasurable and safe sexual
experiences, free from coercion, discrimination and violence.

[180]
 Memorandum, Alcantara, rollo, (G.R. No. 204934)p. 2136; Memorandum, PAX, rollo
(G.R. No. 205138), pp. 2154-2155.

[181]
 Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 415-416.

[182]
  Gamboa v. Finance Secretary,  G.R. No. 176579, June 28, 2011, 652 SCRA 690, 738-
739.

[183]
 335 Phil. 82 (1997).

[184]
 Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R.
No. 204934), p. 1408.

[185]
 Id.

[186]
 Memorandum, Lagman, rollo (G.R. No. 204819), pp. 2359-2361.

[187]
 Separate Opinion (Justice Leonardo-De Castro) p. 54.

[188]
 Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138),
pp. 40-41.
[189]
 Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
204957), pp. 26-27; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo  (G.R. No. 205138), pp. 39-44; Petition, Tatad v. Office of the President, rollo (G.R.
No. 205491), pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo  (G.R.
No. 205720), pp. 59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the
President, rollo (G.R. No. 206355), pp. 25-26.

[190]
 Joint Memorandum, Imbong/Luat, rollo  (G.R. No. 204819), p. 2615.

[191]
 Joint Memorandum, Imbong/Luat, rollo (G.R. No. 204819), pp. 2616-2621.

[192]
 Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 6-7.

[193]
 Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-
23.

[194]
 Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-
23.

[195]
 Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No.
204934), pp. 35-37.; Petition, Millennium Saint Foundation, Inc. v. Office of the
President, rollo (G.R. No. 206355), pp. 17-18.

[196]
 Memorandum, Cayetano, rollo  (G.R. No. 204819), p. 3050; Comment-in-
Intervention, Cabral, rollo (G.R. No. 204819), p. 511.

[197]
 Memorandum, OSG, rollo (G.R. No. 204819), p. 2677.

[198]
 Memorandum, Cayetano, rollo  (G.R. No. 204819), p. 3050.

[199]
 Joint Memorandum Lagman, rollo (G.R. No. 204819), p. 2361.

[200]
 Memorandum. C4RH, rollo (G.R. No. 204819), p. 2189; Memorandum,
Cayetano, rollo (G.R. No. 204819), p. 3050-3051.

[201]
 Memorandum, Cayetano, rollo  (G.R. No. 204819), p. 3050.

[202]
 Memorandum, OSG, rollo  (G.R. No. 204819), p. 2677.

[203]
 Memorandum, OSG, rollo  (G.R. No. 204819), p. 2679.

[204]
 Memorandum, OSG, rollo  (G.R. No. 204819), p. 2679.

[205]
 Cruz, Philippine Political Law, 2000 ed., p. 179, citing Justice Laurel in Engel v.
Vitale, 370 US 421

[206]
 Gorospe, Constitutional Law, Vol. I, p. 1007
[207]
 Bernas, The 1987 Constitution, 2009 Ed., p. 330

[208]
 Gorospe, Constitutional Law, Vol. I, p. 1066

[209]
 59 SCRA 54 (1974).

[210]
 Escritor v. Estrada, A.M. No. P-02-1651, June 22, 2006, 525 Phil. 110, 140-141 (2006).

[211]
 106 Phil. 2 (1959).

[212]
  Gerona v. Secretary of Education, 106 Phil. 2, 9-10 (1959).

[213]
 Ebralinag v. Division Superintendent of Schools, 219 SCRA 256 (1993), March 1, 1993.

[214]
 525 Phil. 110 (2006).

[215]
 Id. at 137.

[216]
 Id. at 148.

[217]
 Id. at 149.

[218]
 Id. at 175.

[219]
 Id. at 168-169.

[220]
 Estrada v. Escritor, 455 Phil. 411, 560 (2003).

[221]
 Cruz, Constitutional Law, 2000 edition, pp. 178-179.

[222]
 Bernas, The 1987 Constitution, 2009 Ed., p. 330.

[223]
 Separate Opinion, Cruz, Ebralinag v. Division Superintendent of Schools,  219 SCRA
256 (1993), March 1, 1993.

[224]
 Estrada v. Escritor, supra note 220, at 537.

[225]
 20130 CSIH 36.

[226]
 http://www.skepticink.com/tippling/2013/05/05/conscientious-objection-to-
abortion-catholic-midwives-win-appeal/; last visited February 22, 2014

[227]
 http://ukhumanrightsblog.com/2013/05/03/conscientious-objection-to-abortion-
catholic-midwives-win-appeal; last visited February 22, 2014

[228]
 453 Phil. 440 (2003).

[229]
 Fernando on the Philippine Constitution, 1974 ed., p. 565; See Dissenting Opinion
Makasiar, Garcia v. The Faculty Admission Committee G.R. No. L-40779, November 28,
1975.

[230]
 TSN, August 13, 2013, pp. 52-54.

[231]
 TSN, August 27, 2013, pp. 71-72

[232]
 Islamic Da’wah Council of the Philippines v. Office of the Executive Secretary of the
Office of the President of the Philippines, supra note 228 at 450.

[233]
 http://fatherbernasblogs.blogspot.com/2011_02_01_archive.html; last visited
February 15, 2014.

[234]
  Estrada v. Escritor,  supra note 210.

[235]
 TSN, August 27, 2013, p. 130.

[236]
 http://www.lifenews.com/2011/09/01/philippines-sees-maternal-mortality-decline-
without-abortion; last visited March 9, 2014 [Researchers from the Institute for Health
Metrics and Evaluation of the University of Washington in Seattle examined maternal
mortality rates in 181 countries and found the rate (the number of women’s deaths per
100,000) dropped by 81 percent in the Philippines between 1980 and 2008. The
decrease comes as the largely Catholic nation has resister efforts to legalize abortions,
even though the United Nations and pro-abortion groups claim women will supposedly
die in illegal abortions and increase the maternal mortality rate if abortion is prohibited.

The 2010 study, published in Lancet, shows the Philippines outpaced first-world
nations like Germany, Russia and Israel — where abortions are legal — in cutting
maternal mortality rates.

Meanwhile, the National Statistical Coordination Board in the Philippines, according to

Spero Forum, has shown the same results. From 1990-2010, the daily maternal
mortality rate dropped 21 percent, its figures indicated. The World Health
Organization also found that the Filipino maternal mortality rate dropped 48 percent
from 1990 to 2008.

[237]
 TSN, July 23, 2013, p. 23.

[238]
 Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R.
No. 204934), p. 1407.

[239]
 SEC. 15.  Certificate of Compliance. – No marriage license shall be issued by the Local
Civil Registrar unless the applicants present a Certificate of Compliance issued for free
by the local Family Planning Office certifying that they had duly received adequate
instructions and information on responsible parenthood, family planning, breastfeeding
and infant nutrition.

[240]
 Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), p. 29.

[241]
 80 CONST. Art XV, §2.
[242]
 Separate Opinion (Justice Leonardo-De Castro), p. 42-43.

[243]
 130 Phil. 415 (1968).

[244]
 Id. at 436.

[245]
 81 Griswold v. Connecticut, 381 U.S. 479, June 7, 1965.

[246]
 Id.

[247]
 Section 12, Article II, 1987 Constitution.

[248]
 Bernas, The 1987 Constitution, 2009 Ed., p. 85.

[249]
 (ii) Parental consent or that of the person exercising parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial
office of the court. In the case of minors, the written consent of parents or legal
guardian or, in their absence, persons exercising parental authority or next-of-kin shall
be required only in elective surgical procedures and in no case shall consent be required
in emergency or serious cases as defined in Republic Act No. 8344.

[250]
 Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 15-16.

[251]
 Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R.
No. 204934), pp. 1453-1496.

[252]
 Records, 1986 Constitutional Convention, Volume IV, pp. 401-402.

[253]
 Article II, Section 13, 1987 Constitution.

[254]
 Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo  (G.R. No.
204957), pp. 24-25.

[255]
 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,  G.R. No.
178552, October 5, 2010; People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA
186, 195.

[256]
 Philippine International Trading Corporation v. COA, G.R. No. 183517, June 22, 2010,
621 SCRA 461, 469.

[257]
 Webster’s Third New International Dictionary, 1993 Edition, p. 1145.

[258]
 Webster’s Third New International Dictionary, 1993 Edition, p. 1252.

[259]
 SEC. 3. Guiding Principles for Implementation.  – This Act declares the following as
guiding principles:
xxxx

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifacient, effective and quality reproductive health care services and supplies is
essential in the promotion of people’s right to health, especially those of women,
the poor, and the marginalized, and shall be incorporated as a component of basic
health care;

(e) The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards such as those registered
and approved by the FDA for the poor and marginalized as identified through the NHTS-
PR and other government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions;

(f) The State shall promote programs that: (1) enable individuals and couples to have the
number of children they desire with due consideration to the health, particularly of
women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions: Provided, That no one shall
be deprived, for economic reasons, of the rights to have children; (2) achieve equitable
allocation and utilization of resources; (3) ensure effective partnership among national
government, local government units (LGUs) and the private sector in the design,
implementation, coordination, integration, monitoring and evaluation of people-
centered programs to enhance the quality of life and environmental protection; (4)
conduct studies to analyze demographic trends including demographic dividends from
sound population policies towards sustainable human development in keeping with the
principles of gender equality, protection of mothers and children, born and unborn and
the promotion and protection of women’s reproductive rights and health; and (5)
conduct scientific studies to determine the safety and efficacy of alternative medicines
and methods for reproductive health care development;

xxxx

(g) The provision of reproductive health care, information and supplies giving priority to
poor beneficiaries as identified through the NHTS-PR and other government measures
of identifying marginalization must be the primary responsibility of the national
government consistent with its obligation to respect, protect and promote the right to
health and the right to life;

xxxx

(i) Active participation by nongovernment organizations (NGOs), women’s and people’s

organizations, civil society, faith-based organizations, the religious sector and
communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women,
the poor, and the marginalized;
xxxx

(l) There shall be no demographic or population targets and the mitigation, promotion
and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health;

xxxx

(n) The resources of the country must be made to serve the entire population, especially
the poor, and allocations thereof must be adequate and effective: Provided, That the life
of the unborn is protected;

(o) Development is a multi-faceted process that calls for the harmonization and
integration of policies, plans, programs and projects that seek to uplift the quality of life
of the people, more particularly the poor, the needy and the marginalized;

[260]
 SEC. 4. Definition of Terms. – For the purpose of this Act, the following terms shall be
defined as follows:

xxxx

(r) Reproductive health care program refers to the systematic and integrated provision

of reproductive health care to all citizens prioritizing women, the poor, marginalized and
those invulnerable or crisis situations.

xxxx

(aa) Sustainable human development refers to bringing people, particularly

the poor and vulnerable, to the center of development process, the central purpose of
which is the creation of an enabling environment in which all can enjoy long, healthy
and productive lives, done in the manner that promotes their rights and protects the life
opportunities of future generations and the natural ecosystem on which all life depends.

[261]
 Biraogo v. The Philippine Truth Commission, supra note 90.

[262]
 Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988),
pp.16-48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

[263]
 Except the practice of law which is under the supervision of the Supreme Court.

[264]
 United States v. Jesus, 31 Phil. 218, 230 (1915).

[265]
 Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), p. 8.

[266]
 With reference to Section 2, 3(E), 4(L), 9 and 19(C) of the RH Law; Petition,
ALFI, rollo (G.R. No. 204934), pp. 28-33; Petition, Philippine Alliance of XSeminarians
(PAX) v. Ochoa, rollo (G.R. No. 205138), pp. 37-38.
[267]
 358 Phil. 410 (1998).

[268]
  Pimentel, Jr. v. Executive Secretary, G.R. No. 195770, July 17, 2012, 676 SCRA 551,
559.

[269]
 Id. at 559-560.

[270]
 Id. at 561.

[271]
 See Section 6, R.A. No. 10354.

[272]
 See Section 5, R.A. No. 10354.

[273]
 See Section 16, R.A. No. 1354.

[274]
 Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270,
306.

[275]
 Id. at 305.

[276]
 Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo  (G.R. No. 205720), pp.
14-30.

[277]
 Gettel, Political Science, Revised Edition, p. 180.

[278]
 454 Phil. 504 (2003).

[279]
 Separate Opinion, Chief Justice Reynato S. Puno, Republic v. Sandiganbayan, 454
Phil. 504 (2003).

[280]
 https://www.cia.gov/library/publications/the-world-
factbook/rankorder/2127rank.html; last visited March 21, 2014

[281]
 St. Joseph’s College v. St. Joseph’s College Workers’ Association (Samahan), 489 Phil.
559, 572-573 (2005) ; and Cebu Institute of Technology v. Ople, G.R. No. L-58870, 18
December 1987, 156 SCRA 629.

OPINYONG SUMASANG-AYON AT SUMASALUNGAT

Paunang Salita

Sa herarkiya ng mga karapatang pantao, walang hihigit pa sa karapatang mabuhay, at

nasasalamin ng ating Saligang Batas ang ganitong paniniwala. Ayon dito, pantay na
pangangalagaan ng pamahalaan ang buhay ng ina at ang buhay na kanyang dinadala.
[1]
 Bakas sa adhikaing ito ang pagkilala sa malaking bahaging ginagampanan ng ina sa
pagbibigay ng buhay.

Kaya't sasalungatin ko ang bigkasin ng aking mga kapatid na Mahistrado, na ang

pagpapalaya sa pasiya ng may-katawan ay kumikitil ng buhay ng kapwa-taong isisilang
pa lamang. Wala sa takda ng Saligang Batas at Republic Act No. 10354 (The Responsible
Parenthood and Reproductive Health Act of 2012), o RH Law, ang pagkitil ng buhay.
Nguni't inuunawa rin nito ang karapatan ng mag-asawa na magpalaki ng kanilang
pamilya ng may dangal sa buhay. Napakahalaga din sa pananaw ng Saligang Batas at ng
RH Law ang kalusugan ng pamayanan, lalong-lalo na ang kalusugan ng mga ina o
magiging ina ng pamayanang ito. Kaya't mahalaga na ang bawat interpretasyon ng RH
Law ay ayon sa ikabubuti ng pamilyang Pilipino at kalusugan ng ina.

Naitakda na sa Saligang Batas, at alinsunod naman dito ang RH Law, na ang buhay ay
pangangalagaan mula sa conception. Kung ano ang puntong iyon ay katanungan para sa
mga dalubhasa ng siyensiya, at hindi para sa Korte Suprema. Mayroong prosesong
naitakda ang RH Law kung saan kinikilala ang pangunahing kapangyarihan ng Food and
Drug Administration (FDA) sa pagsusuri sa mga katangian ng isang metodo o gamot
upang alamin kung ito ay gagamitin sa pagkitil ng buhay na pinagbabawal ng Saligang
Batas. Maaari lamang saklawan ng Korte Suprema ang tanong na ito kung ang prosesong
legal ay lumabag sa mga alituntunin ng due process at mga kaakibat na procedural
rules nito. Sukdulang panghihimasok ang magtakda kami sa panahong ito kung ang
mga hormonal contraceptives ay abortifacient o hindi.

Gayundin, ang may-katawan na daraan sa paglilihi, pagbubuntis at maaaring ikapeligro

ng sariling buhay ay nararapat na pakinggan ng pamahalaan. Maaaring imungkahi ng
kapamilya, kasama na ng kanyang asawa, ang alternatibong paraan upang harapin ang
sitwasyong pangkalusugan. Nguni't sa bandang huli, ang pasiya ng may-katawan ang
dapat manaig. At bagama't ang may-katawan ay wala pa sa hustong gulang, kung siya ay
nabuntis na, hindi dapat hadlangan ang kanyang kakayahang humingi ng tulong ukol
sa  reproductive health kahit walang pahintulot ng kanyang magulang sapagka't
nakasalalay sa ganitong kakayahan ang kanyang kalusugan at mismong buhay.

Sa panig ng mga matataas na nanunungkulan sa pamahalaan na inatasang magpatupad

ng RH Law, hindi nararapat na sila ay hayaang lumabag sa katungkulang ito. Binigyan sila
ng kapangyarihan ng pamahalaan upang ipatupad ang mga batas, at hindi nila maaaring
gamitin ang nasabing kapangyarihan upang biguin ang mga nilalayon ng pamahalaan
para sa mga mamamayan, lalo na't ang mga layuning ito ay kaugnay sa usaping
pangkalusugan.

Sinusuportahan ng RH Law ang pagsulong at pangangalaga sa karapatan ng kababaihan.

Ang pagkakaloob ng mabisa at mahusay na reproductive health care services  ay ayon sa
layunin nitong masiguro ang kalusugan ng mag-ina, at makapagtatag ng sapat na
pamantayan alang-alang sa kapakanan ng Iahat.

Hindi maikakaila na ang paulit-ulit na pagbanggit sa mga katagang "medically-safe, non-

abortifacient, effective, legal, affordable and quality reproductive health care services,
methods, devices and supplies" sa RH Law ay di-pangkaraniwang pagpapahalaga sa
buhay ng tao at ang sadyang pagwawaksi sa abortion bilang isang krimen na may
karampatang parusa ayon sa ating batas.

Ang Pasanin ng Petitioners

Pinapalagay bilang isang paunang pag-unawa, na ang lahat ng batas ay hindi labag sa
Saligang Batas o konstitusyonal.[2] Ito ay pangunahing prinsipyo na matagal nang
kinikilala, kung kaya't iniiwasan ng Korte Suprema na ipawalang-bisa ang isang
batas[3] bilang pagkilala sa dunong, dangal at kabayanihan ng Kongreso na gumawa nito,
at sa Pangulo na nagpatibay dito.[4] Ang tungkuling magpatupad ng Saligang Batas ay
hindi natatangi sa Korte Suprema; ito ay kaakibat na katungkulan ng Kongreso at ng
Pangulo.[5]

Dahil ang lahat ng batas ay ipinapalagay na konstitusyonal, ang sinuman na dudulog sa

Korte Suprema upang ipawalang-bisa ito ay mabigat ang susuungin. Ipapawalang-bisa
lamang ng Korte Suprema ang isang batas o bahagi nito kung malinaw na maipakikita
ng petitioner ang paglabag nito sa Saligang Batas.[6] Kinakailangang malinaw at
totohanan ang mga batayan sa pagpapawalang-bisa ng batas, at hindi maaaring ang mga
ito ay haka-haka lamang.[7] Saka lamang ipapawalang-bisa ng Korte Suprema ang isang
batas kung malinaw na naipakita ang pagmamalabis at pagsalungat ng Kongreso sa ating
Saligang Batas.[8]

Ang Pasiya ng Mayorya

Ayon sa Decision, ang RH Law ay konstitusyonal maliban na lamang sa mga sumusunod

na bahagi nito:

1. Section 7,[9] at ang kaukulang bahagi nito sa  Implementing Rules and Regulations (IRR)
ng RH Law, sa dahilang ito ay: a) nag-uutos sa mga non-maternity specialty hospitals at
mga ospital na pagmamayari o pinatatakbo ng mga  religious group  na agarang ituro sa
pinakamalapit na health facility ang mga pasyenteng wala sa emergency condition o
hindi serious case, ayon sa R.A. 8344, 10 na naghahangad ng serbisyo ukol sa  modern
family planning methods,11 at b) nagbibigay-daan sa mga menor de edad na may anak o
nagkaroon ng miscarriage na makinabang sa modern family planning methods  kahit
walang pahintulot ng kanilang mga magulang;[12]

2. Section 23(a)(1),[13] at ang Section 5.24[14] ng IRR ng RH Law, sa dahilang pinarurusahan

nito ang kahit sinong health care service provider na hindi nagpalaganap o tumangging
magpalaganap ng mahalagang kaalaman kaugnay ng mga programa at serbisyo ukol
sa reproductive health, nang walang pakundangan sa  religious beliefs  ng mga health
care service providers na ito;

3. Section 23(a)(2)(i),[15] at ang kaukulang bahagi nito sa IRR ng RH Law,[16] sa dahilang

nagbibigay-daan ito sa isang may asawa na wala sa emergency condition o hindi serious
case na sumailalim sa reproductive health procedures kahit walang pahintulot ng
kanyang asawa;

4. Section 23(a)(2)(ii)[17] sa dahilang pinarurusahan nito ang health care service

provider na hihingi ng pahintulot ng magulang bago magsagawa ng reproductive health
procedure sa menor de edad na wala sa  emergency condition o hindi serious case;

5. Section 23(a)(3),[18] at ang Section  5.24 ng IRR ng RH Law, sa dahilang pinarurusahan

nito ang kahit sinong health care service provider na hindi nagturo o tumangging ituro sa
pinakamalapit na health facility ang mga pasyenteng wala sa emergency condition o
hindi serious case na naghahangad ng serbisyo ukol sa modern family planning methods;

6. Section 23(b),[19] at ang Section 5.24 ng IRR ng RH Law, sa dahilang pinarurusahan nito

ang kahit sinong public officer na ayaw magtaguyod ng reproductive health programs  o
gagawa ng kahit anong hahadlang o makakasagabal sa malawakang pagsasakatuparan
ng isang reproductive health program;

7. Section 17,[20] at ang kaukulang bahagi nito sa IRR ng RH Law[21] kaugnay sa

pagsasagawa ng pro bono reproductive health services sa dahilang naaapektuhan nita
ang conscientious objector sa pagkuha ng PhilHealth accreditation; at

8. Section 3.01(a)[22] at 3.0(j)[23] ng IRR ng RH Law sa dahilang nagdadagdag ito ng

salitang "primarily" sa kahulugan ng abortifacient, na labag sa Section 4(a)[24] ng RH Law
at Section 12, Article II[25] ng Saligang Batas.

Ang Religious Freedom, ang Compelling State Interest Test,

at ang Conscientious Objector

Bago ko talakayin ang mga substantibong mga argumento ukol sa religious

freedom, nais kong batikusin ang paggamit ng isang technical legal test  upang
timbangin kung alin sa dalawa: (a) ang polisiya ng pamahalaan, gaya ng reproductive
health, o (b) isang karapatan gaya ng religious freedom, ang dapat manaig. Sa palagay
ko, hindi akma ang paggamit ng technical legal test na compelling state interest sa
kasong hinaharap natin.

Hindi ako sumasang-ayon na nararapat gamitin ang compelling state interest test upang

tiyakin ang legalidad ng RH Law - partikular na ang paggarantiya ng pamahalaan sa
ligtas, mabisa, abot-kaya, de-kalidad, naaayon sa batas at
hindi abortifacient na reproductive health care services, methods ,
devices at supplies  para sa lahat, pati na ang mahalagang kaalaman ukol dito - sa
kadahilanang buo ang pagkilala ng RH Law sa religious freedom, kaya 't hindi na
kailangan ang test na ito. Sa Estrada v. Escritor,[26] ipinaliwanag natin na:

The "compelling state interest" test is proper where conduct is involved for the whole
gamut of human conduct has different effects on the state's interests: some effects may
be immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights," in the words of Jefferson. This right is sacred for an invocation of the
Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order
of limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining which shall
prevail between the state's interest and religious liberty, reasonableness shall be the
guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state.
[27]
 (Emphasis ours)

Ginamit ang compelling state interest test sa Estrada v. Escritor upang malaman kung

ang respondent doon ay nararapat na bigyan ng exemption laban sa kasong
administratibo bunga ng pakikisama niya sa lalaking hindi niya asawa ayon sa Civil
Code. Karaniwan, bilang kawani ng pamahalaan, mahaharap ang respondent sa
kasong disgraceful and immoral conduct.  Bagkus, inilahad ng respondent na bagama't
walang basbas ng pamahalaang sibil ang kanilang pagsasama, may basbas naman ito ng
kanilang relihiyon na Jehovah's Witnesses and the Watch Tower and Bible Tract Society.
Kaya't hindi siya nararapat na sampahan ng kasong administratibo bunga nito.

Sa kadahilanang aminado naman ang  Solicitor General na tunay at tapat ang paniniwala
ng respondent  sa kaniyang relihiyon, at nagdudulot ng ligalig sa kanyang paniniwala ang
banta ng disciplinary action bunga ng kasong disgraceful and immoral
conduct, nagpasiya ang Korte Suprema na nararapat na patunayan ng pamahalaan kung
tunay nga na may compelling secular objective  na nagbunsod dito upang hindi payagan
ang pakikisama ng respondent sa lalaking hindi niya asawa. Nararapat din, ayon sa Korte
Suprema, na ipakita ng pamahalaan na gumamit ito ng least restrictive means sa pagpigil
ng karapatan ng mga tao sa pagtatanggol nito ng compelling state interest.

Ukol dito, inihayag ng Korte Suprema na "the government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to what extent
those objectives will be undermined if exemptions are granted. "[28] Sa kalaunan, bigo ang
pamahalaan na patunayan ang pakay nito sa pagbabawal sa relasyon
ng respondent.  Bunsod nito, binigyan ng exemption sa parusa ang respondent batay sa
kanyang religious freedom.

Malinaw sa  Estrada v. Escritor na sa ilalim ng compelling state interest test,

ipinagtutunggali ang religious freedom ng mga mamamayan at ang interes ng
pamahalaan sa pagpapatupad ng patakarang sinasabing nagpapahirap sa religious
convictions  ng ilan. Kapag hindi nanaig ang interes ng pamahalaan, magbibigay ng
exemption sa patakaran ang Korte Suprema para sa mga mamamayang naninindigan
para sa kanilang religious freedom. Isinaad din sa Estrada v. Escritor na nakagawian na
ng Korte Suprema na magbigay ng exemption sa halip na magpawalang-bisa ng mga
patakaran ng pamahalaan pagdating sa usapin ng religious freedom.

Hindi ito ang sitwasyon sa ilalim ng RH Law. Ayon sa petitioners, katumbas ng isang
pagkakasala sa ilalim ng kanilang relihiyon ang pagsasagawa ng serbisyo ukol sa modern
family planning methods  at pagbibigay ng payo ukol dito. Labag ito sa religious
freedom ng mga conscientious health professionals na naniniwalang likas na masama
ang contraception. Dahil dito, nararapat na ipawalang-bisa ang RH Law. At, ayon sa mga
kapatid kong Mahistrado, walang compelling state interest para payagan ang
pamahalaang pilitin ang health professionals na lumabag sa kanilang paniniwala. Ang
totoo, walang paglabag sa paniniwala na pinapataw ang RH Law.

Ang Opt-Out Clause

Nakalimutan ng petitioners ang kabuuan ng RH Law. Batid ng Kongreso na maaaring

makasagasa sa paniniwala at ikaligalig ng ilang medical professionals ang kautusang ito
sa RH Law. Dahil mismo dito kaya nag-ukit ang Kongreso ng exemption sa RH Law para
sa mga  conscientious objectors  sa pamamagitan ng "opt-out clause. " Sa ilalim ng opt-
out clause na nakapaloob sa Section 7 ng RH Law, hindi obligadong magdulot ng serbisyo
kaugnay sa modern family planning methods  ang mga  non maternity specialty
hospitals at mga ospital na pagmamay-ari at pinatatakbo ng mga religious groups. Sa
kabilang banda, pinahahalagahan sa ilalim ng Section 23(a)(3) ng RH Law ang
conscientious objection ng health care service providers batay sa kanilang ethical
o religious beliefs. Ayon dito, exempted sila sa kaparusahan na ipapataw sa mga
tatangging magdulot ng reproductive health care services at magbigay ng mahalagang
kaalaman ukol dito.

Samakatuwid, hindi na nararapat na gamitin pa ang compelling state interest test upang
matiyak ang legalidad ng RH Law. Matatandaang sa ilalim ng compelling state interest
test, kailangang ipakita ng pamahalaan kung paano mawawalan ng saysay ang mga
layunin nito sa pagbuo ng RH Law kung magbibigay ito ng exemptions sa mga itinatakda
ng batas. Ngunit dahil kinilala na ng RH Law ang religious freedom ng mga conscientious
objectors sa pamamagitan ng exemption na naka-ukit na dito, wala na sa pamahalaan
ang pasanin upang ipagtanggol ang interes nito sa pagsisikap na mapangalagaan ang
reproductive health ng mga mamamayan.

Naging sensitibo ang Kongreso sa paniniwala ng mga conscientious objectors sa

pamamagitan ng paglalatag ng exemptions sa RH Law. Sa puntong ito, kung
kakailanganin pa ng Kongreso na patunayan ang compelling state interest, mawawalan
ng saysay ang respeto sa isa't isa na iniaatas ng ating Saligang Batas sa mga magigiting
na sangay ng pamahalaan.

Ang agarang pagturo na lamang sa pinakamalapit na health facility o  health care service
provider sa mga pasyenteng naghahangad ng serbisyo ukol sa modern family planning
methods ang nalalabing katungkulan ng mga conscientious objectors, ng mga non-
maternity specialty hospitals, at mga ospital na pagmamay-ari at pinatatakbo ng mga
religious groups. Ito ay upang malaman ng pasyente kung saan siya tutungo at upang
hindi naman sila mapagkaitan ng serbisyong inihahandog ng pamahalaan para
mapangalagaan ang kanilang reproductive health.

Ayon sa Solicitor General:

74. The duty to refer, as an "opt out" clause, is a carefully balanced compromise
between, on one hand, the interests of the religious objector who is allowed to keep
silent but is required to refer and, on the other, the citizen who needs access to
information and who has the right to expect that the health care professional in front of
her will act professionally. The concession given by the State under Section 7 and 23(a)
(3) is sufficient accommodation to the right to freely exercise one's religion without
wmecessarily infringing on the rights of others.[29]

Ayaw magpadala ng mga  petitioners. Giit nila, labag pa rin sa kanilang religious

freedom  ang pag-aatas ng duty to refer. Sang-ayon dito ang Decision at nagsaad ito na
ang opt-out clause ay isang ''false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or offensive." [30]

Ayon sa paninindigang ito, ang pagturo sa pasyente sa ibang pinakamalapit na  health
facility o health care service provider na makatutulong sa kanila ay kahalintulad na
kaagad ng contraception, ang bagay na kanilang itinuturing na likas na masama. Totoo
naman na maaaring puntahan nga ng pasyente ang itinurong  health facility o health
care service provider at doon ay makakuha ito ng serbisyo ukol sa modern family
planning methods na makasalanan sa paningin ng conscientious objector.  Nguni't bunga
lamang ng pagsasanib ng napakaraming posibilidad ang resultang ito.

Maaaring magpasiya ang pasyente na hindi na lang kumunsulta, o kaya ay pumunta ito
sa  health facility  o health care service provider  na iba sa itinuro sa kanya ng
conscientious objector. Maaari ding magpayo ang naiturong health facility o  health care
service provider na hindi hiyang o nararapat sa pasyente ang modern family planning
methods dahil sa kundisyon ng kanyang pangangatawan. Maaaring pagkatapos ng lahat
ng pagpapayo, pagpapatingin at paghahanda ukol sa gagawing  modern family planning
method  o  procedure  ay magpasiya ang pasyente na huwag na lang ituloy ang lahat ng
ito.

Isa lamang sa maraming posibilidad ang kinatatakutang resulta ng mga petitioners, at

gayunpaman, hindi huling hakbang na maghahatid sa pasyente tungo
sa contraception ang pagtuturo sa ibang health facility o health care service provider.

Ayon sa Decision, walang idinudulot na paglabag sa religious freedom ang pag-uutos sa

mga ikakasal na dumalo sa mga seminar ukol sa responsible parenthood, family
planning, breastfeeding at  infant nutrition dahil hindi naman sila obligadong sumunod
sa mga ituturo dito. Hindi rin masama ang pagbibigay-daan na mabigyan ng mahalagang
kaalaman tungkol sa family planning services ang mga menor de edad na may anak o
nagkaroon ng miscarriage para matutunan nila ang mga bagay na makatutulong sa
kanila upang pangalagaan ang kanilang katawan at anak o dinadala. Kung gayon, at
kahalintulad ng nasabing sitwasyon, wala rin dapat pagtutol sa atas ng RH Law na ituro
ng mga conscientious objector ang mga pasyente sa pinakamalapit na health
facility  o health care service provider na makatutulong sa kanila.

Ang pagpapahalaga sa informed choice ng mga Pilipino pagdating sa usapin

ng reproductive health ang pundasyon ng RH Law. Mananatili ang pagpapasiya sa
pasyente; hinihiling lamang na huwag hadlangan ng conscientious objectors ang
kanilang daan tungo sa paggawa ng masusing pagpapasiya.

Kinikilala ng International Covenant on Civil and Political Rights na ang religious freedom
ay maaari ding mapasailalim sa mga "limitations ... prescribed by law and ... necessary to
protect public safety, order, health, or morals or the fundamental rights and freedoms of
others. "[31] Bukod dito, hindi rin maikakaila na maaaring ipagbawal ng pamahalaan ang
isang gawain kahit alinsunod pa ito sa religious convictions kung ito ay labag sa
"important social duties or subversive of good order.  "[32]

Sa kanilang pagpasok sa propesyon, tinanggap ng mga medical professionals ang mga

moral values at kaakibat na katungkulan sa mga pasyente.[33] Isa dito ang
napapanahong duty to refer sa ibang  health facility  o health care service provider  kung
batid nila na dahil sa kanilang religious beliefs, hindi nila maaaring ihatid ang serbisyong
hinihingi o kinakailangan ng pasyente.[34] Upang mapanatili ang ethical practice,
hinihikayat ng mga pantas ang mga conscientious objectors  na maglingkod kalapit ang
ibang medical professionals na hindi conscientious objectors upang maayos na
mapanatili ang isang referral system para masigurado na maibibigay sa pasyente ang
mga pangangailangan nitong hindi kayang tugunan ng conscientious objector.
[35]
 Mahalaga ito upang masiguro na tuloy-tuloy ang serbisyong pangkalusugan para sa
mga taong nangangailangan nito.

Dahil dito, hindi maituturing na dagdag pasanin ng medical professionals  ang duty to

refer  sa ilalim ng RH Law. Likas na ito sa kanilang propesyon. Sa katunayan, nasa
kapangyarihan ng Kongreso ang maglatag ng mga alituntunin at dagdag na pasanin sa
propesyon ng medisina ayon sa police power nito upang isulong ang public health. At,
inuunawa ng RH Law na dahil sa religious convictions, hindi maaaring isagawa ng
isang medical professional ang serbisyo ukol sa modern family planning methods kahit
hinihingi pa ng pasyente. Dahil dito, pinapayagan sila na tumanggi ng pasyente at
papuntahin ito sa ibang medical professional na makatutulong dito.

Kung tutuusin, maituturing na paglabag sa sinumpaang tungkulin ng mga medical

professionals  ang pagtangging magturo ng pasyente sa ibang medical
professional.  Maaari itong maging basehan ng disciplinary action laban sa kanila. Ayon
sa isang lathalain, dahil ang mga medical professionals ay napapaloob sa isang
monopoly sa paghahatid ng serbisyong pangkalusugan, ang ilan sa kanila na mas
pinahahalagahan ang kanilang religious interests nang walang pakundangan sa
kapakanan ng kanilang pasyente ay nababalot sa isang matinding conflict of interest.
[36]
 Kilala ang dakilang propesyong ito sa pagpapakasakit para sa ikabubuti ng ibang tao,
[37]
 kaya naman ang pagtanggi kahit sa pagtuturo na lamang sa ibang  health facility o
health care service provider ay maituturing na pagkait ng serbisyong pangkalusugan sa
mga pasyente.

Upang mabigyan ng katumbas na proteksyon ang karapatan ng mga pasyente sa tuloy-

tuloy na serbisyong pangkalusugan, minabuti ng Kongreso na patawan ng parusa ang
mga conscientious objectors na tatangging tuparin man lamang ang duty to refer.
Ipinataw ang parusa upang masiguro na hindi naman magagamit ng conscientious
medical professionals ang exemption na ipinagkaloob sa kanila upang ipataw ang
kanilang religious beliefs  sa kanilang mga pasyente. Pinaiiral ito ng prinsipyong ang
karapatan ng malayang pagsamba at pagpapahayag ng relihiyon ay nangangahulugan na
walang karapatan ang sinuman na mang-api sa paniniwalang hindi ayon sa kanila.

Sa puntong ito, nais kong linawin na ipinagbabawal ng Section 23(a)(1) ang pagkakait ng
mahalagang kaalaman, pagbabawal sa pagpapalaganap nito o sadyaang pagbibigay ng
maling impormasyon kaugnay ng mga programa at serbisyo ukol sa reproductive health,
karapatan ng lahat sa  informed choice at ang paggarantiya ng pamahalaan sa ligtas,
mabisa, abot-kaya, de-kalidad, naaayon sa batas at hindi abortifacient na family
planning methods.

Sa kabilang banda, ipinagbabawal naman ng Section  23(a)(2) ang pagtangging

magsagawa ng ligtas at naaayon sa batas na reproductive health procedures  dahil
lamang sa ang taong naghahangad nito, bagama't nasa hustong edad, ay hindi
makapagpakita ng pahintulot ng kanyang asawa o magulang. Hindi nito ipinagbabawal
ang pagtangging magsagawa ng reproductive health procedures dahil sa
kanilang religious beliefs.

Ang mga health care service providers  na tinutukoy sa Section 23(a)(l) at Section 23(a)(2)
ay hindi ang mga conscientious objectors.   Kung conscientious objector ang isang health
care service provider, maaari na siyang tumanggi sa unang pagkakataon pa lamang, at
wala na siyang oportunidad para magbigay ng maling impormasyon kaugnay ng mga
programa at serbisyo ukol sa reproductive health  dahil tinanggihan na niya ang
pasyente. Gayundin, wala nang oportunidad ang mga conscientious objectors na
tumangging magsagawa ng ligtas at naaayon sa batas na  reproductive health
procedures sa isang may-asawa o menor de edad dahil sa kakulangan ng pahintulot ng
asawa o magulang. Paglapit pa lamang ng pasyente sa kanya na humihingi ng serbisyo
ukol sa reproductive health, maaari na siyang tumanggi, at ang pagtangging ito ay dahil
sa kanyang religious beliefs, hindi dahil sa kawalan ng pahintulot.

Kung conscientious objector  ang health care service provider, mapapasailalim siya sa

Section 23(a)(3) na nagsasabing isasaalang-alang at irerespeto ang
kanilang  ethical o religious beliefs. Ayon dito, bagama't maaaring parusahan ang iba
kung sila ay tatangging magsagawa ng de kalidad na  health care services o tatangging
magbigay ng mahalagang kaalaman ukol dito, pinapayagan ang mga conscientious
objector na tumanggi kung wala sa emergency condition o hindi serious case ang
pasyente. Hindi parurusahan ng batas ang mga conscientious objector na tumanggi, at
kabilang ito sa  exemption na inilatag ng RH Law para sa kanila.

Sa gayon, malinaw ang legislative intent  ng Kongreso na hindi mapapasailalim ang

mga conscientious objector  sa Section  23(a)(l) at Section 23(a)(2). Maaari nang tumanggi
sa pasyenteng wala sa emergency condition o hindi serious case sa unang pagkakataon
pa lamang ang sinumang health care service provider, pribado o pampubliko, na
tumututol sa paghahatid at pagsasagawa ng reproductive health
services at procedures at pagbibigay ng mahalagang kaalaman ukol dito dahil sa
kanilang religious beliefs.

Nguni't, kalakip ng karapatan ng pagtanggi ng mga conscientious objector ang

katungkulang ituro ang mga pasyenteng wala sa emergency condition o hindi serious
case sa ibang pinakamalapit na  health facility kung saan nila makukuha ang serbisyo at
mahalagang kaalaman ukol sa  reproductive health na ninanais nila.

FDA Certification sa Section 9

Ayon sa Decision, "empty as it is absurd  "[38] ang huling pangungusap sa unang talata

ng Section 9[39] ng RH Law na nag-uutos na makukuha lamang sa kondisyong hindi
gagamitin bilang abortifacient ang mga produkto na kasama o isasama sa essential
drugs list (EDL). Ayon sa kanila, hindi naman maaaring naroroon ang FDA upang
maglabas ng certification ukol dito sa tuwing ipamamahagi ang contraceptive. Sa halip,
iminungkahi na baguhin ang pagkakasulat ng pangungusap upang linawin na walang
kahit anong abortifacient  na isasama o maisasama sa EDL.

Noong oral arguments,  nilinaw ni Associate Justice Mariano C. Del Castillo  ang bagay na
ito sa Solicitor General, partikular na sa paraan kung paano masisiguro ng pamahalaan
na hindi gagamitin bilang abortifacient ang mga produkto sa EDL:

JUSTICE DEL CASTILLO:

Just one question, Counsel. The RH Law allows the availability of these contraceptives
provided they will not be used as an abortifacient.

SOL. GEN.JARDELEZA:
Yes, Your Honor.

JUSTICE DEL CASTILLO:

So there's a possibility that these contraceptives, these drugs and devices may be used
as an abortifacient?

SOL. GEN. JARDELEZA:

No, Your Honor, there will be [sic] not be a possibility. After you have the FDA certifying
that... (interrupted)

JUSTICE DEL CASTILLO:

Yes, but why does the law still [say) that, "...provided that they will not be used as an
abortifacient [?]"

SOL. GEN. JARDELEZA:

The context of that, Your Honor, is that, there are certain drugs which are
abortifacients.

JUSTICE DEL CASTILLO:

So how then can...how can a government make sure that these drugs will not be used as
an abortifacient?

SOL. GEN. JARDELEZA:

To the best of my understanding, Your Honor, for example, a woman who is pregnant
and then the doctor says there is no more fetal heartbeat then the unborn or the fetus
is dead. The doctor will have to induce abortion. Sometimes you do this by curettage,
which I think, incision. But many times there are drugs that are abortifacient; they are
life-saving because then you bring the woman to a health center, the baby is dead,
you induce abortion, the doctors can correct me, once that drug, I think, is called
oxytoxin. So any hospital has oxytoxin in its pharmacy because you need that as a life-
saving drug. That is the context of that provision which says, "...should not be used as
an abortifacient." Meaning, just like restricted drugs, oxytoxin will only be used in a
hospital to be used for therapeutic abortion, that I believe, Your Honor, is the meaning
of that, "...cannot be used as an abortifacient." Meaning, the National Drug Formulary
contains oxytoxin, I believe, today but that is to be used under certain very very
restrictive conditions, that's the meaning of "...should not be used as an
abortifacient." Meaning, a woman who is healthy in the pregnancy cannot go to a
doctor and the doctor will say, "You want an abortion, I'll give you oxytoxin", that
cannot be done, Your Honor; that's my understanding.

JUSTICE DEL CASTILLO:

So when there's only a choice between the life of the mother and the life of the child.

SOL. GEN. JARDELEZA:

Yes, that's my understanding.  The best example is the, the monitor shows there is no
more fetal heartbeat. If you don't induce abortion, the mother will die.

JUSTICE DEL CASTILLO:

Thank you, counsel.[40] (Emphases supplied)

Sa gayon, maaaring isama ng FDA ang ilang maaaring gamiting abortifacients, tulad

ng oxytoxin, sa National Drug Formulary dahil ang mga ito ay ginagamit upang mailabas
ang patay na sanggol mula sa sinapupunan ng ina. Ginagawa ito upang mailigtas ang
buhay ng ina na maaaring mameligro bunga ng impeksiyon kung hahayaang nasa loob
ang patay na sanggol. Nagpapahiwatig lamang ang huling pangungusap sa unang talata
ng Section 9 ng  legislative intent  na kahit may mga abortifacients  na isasama sa EDL,
ipinagbabawal na gamitin ang mga ito bilang abortifacient, o paraan upang mapatay ang
malusog na sanggol sa sinapupunan.

Pahintulot ng Asawa

Mayroong pangunahing karapatan, at pangangailangan, ang lahat ng tao sa sariling

pagpapasiya. Biniyayaan ng kaisipan ang lahat ng tao upang malayang maipahayag ang
kanyang saloobin, makabuo ng sariling pananaw at makapagpasiya para sa kanyang
kinabukasan.

Sa ilalim ng ating Saligang Batas, pinangangalagaan ng due process clause ang garantiya

ng kalayaan sa bawat Pilipino. Nagsasabi ito na walang sinuman ang maaaring bawian ng
buhay, kalayaan at ari-arian nang hindi ayon sa paraang inilatag sa batas. Panangga ng
mga mamamayan ang due process clause sa hindi makatuwirang pamamalakad at
pagsamsam ng pamahalaan. Gayunpaman, "[t]he Due Process Clause guarantees more
than fair process, and the 'liberty' it protects includes more than the absence of physical
restraint."[41] Nagtatakda ang due process clause ng limitasyon sa kapangyarihan ng
pamahalaan pagdating sa mga karapatan ng mamamayan.[42] Bukod sa mga karapatang
ginagarantiya ng Bill of Rights, saklaw ng due process clause ang lahat ng bahagi ng
buhay ng tao. Kabilang na rito ang karapatan ng sariling pagpapasiya.

May nakapagsabi na "[n]o right is held more sacred, or is more carefully guarded by the
common law, than the right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law."[43] Sa katunayan, "[e]very human being of adult years
and sound mind has a right to determine what shall be done with his own body.[44]
Ayon sa Decision, isang pribadong paksa na dapat talakayin ng mag asawa ang desisyon
sa usapin ng reproductive health, at hindi maaaring mapunta lamang sa asawang
sasailalim dito ang pagpapasiya. Hinay-hinay tayo. Hindi naman ipinagbabawal ng RH
Law ang pagsanib ng pasiya ng mag-asawa kaya't hindi dapat sabihin na nakapaninira ng
pagsasamahan ng mag-asawa ang karapatan ng may-katawan na magpasiya ukol
sa reproductive health. Nguni't sa panahon ng di-pagkakasundo ng pasiya, walang ibang
makatuwirang sitwasyon kundi kilalanin ang karapatan ng taong may-katawan na
magpasiya.[45] Hindi nawawalan ng karapatan ang tao dahillamang sa pag-aasawa.
Hangga't hindi ito labag sa batas, may kalayaan ang bawat isa na gawin ang kanyang nais
at magpasiya ayon sa makabubuti para sa kanyang sarili. Hindi isinusuko sa asawa sa
oras ng kasal ang pagpapasiya ukol sa sariling katawan. Kung hindi, bubuwagin nito ang
prinsipyo sa likod ng batas laban sa violence against women.

Sa ilalim ng RH Law, ihahandog sa lahat ang mahalagang impormasyon ukol sa modern

family planning methods. Ipinapalagay din na paglilimian ng asawang sasailalim
sa procedure ang mga magiging epekto nito sa kanya at sa kanyang mahal sa buhay.
Kung magdesisyon siya na sumailalim sa napiling reproductive health procedure, hindi
ito dapat hadlangan ng sinuman. Bahagi pa rin ito ng  informed consent  na pundasyon
ng RH Law.

Walang anumang nakasulat sa RH Law na nag-aalis sa mag-asawa ng kanilang

karapatang bumuo ng pamilya. Sa katunayan, tinitiyak nito na ang mga maralita na
nagnanais magkaroon ng anak ay makikinabang sa mga payo, kagamitan at nararapat
na procedures para matulungan silang maglihi at maparami ang mga anak. Walang
anumang nakasulat sa batas na nagpapahintulot sa pamahalaan na manghimasok sa
pagpapasiya "[that] belongs exclusively to, and [is] shared by, both spouses as one
cohesive unit as they chart their own destiny."[46] Walang anumang nakasulat sa RH Law
na humahadlang sa pagsali ng asawa sa pagtimbang ng mga pagpipiliang  modern family
planning methods, at pagpapasiya kung ano ang pinakamabuti para sa kanyang asawa.
Kung may epekto man ang RH Law, ito ay ang pagpapatibay ng makatotohanang
sanggunian sa pagitan ng mag asawang pantay na magpapasiya ukol sa isang bagay na
magtatakda ng kanilang kinabukasan.

Sa pamamagitan ng pagpapahalaga sa pangunahing pasiya ng asawang sasailalim

sa reproductive health procedure, pinaiigting lamang ng RH Law ang pangangalaga sa
pangunahing karapatan ng bawat tao na magpasiya ukol sa kanyang sariling katawan. Sa
pamamagitan din nito, naglalatag ang RH Law ng proteksiyon para sa mga medical
professionals laban sa mga asunto at panliligalig bunga ng pagkuwestiyon o paghamon
kung bakit nila isinagawa ang reproductive health procedure sa kabila ng kawalan ng
pahintulot ng asawa.

Pahintulot ng Magulang

Itinuturing din ng Decision na "[e]qually deplorable"[47] ang bahagi ng RH Law na

nagbibigay-daan sa mga menor de edad na may anak o nagkaroon ng miscarriage na
makinabang sa  modern family planning methods kahit walang pahintulot ang kanilang
mga magulang. Ayon dito, pinuputol ng Section 7 ang parental authority sa mga menor
de edad ''just because there is a need to tame population growth."[48]
Hindi angkop na manghimasok ang Korte Suprema sa katanungan kung ang RH Law ay
isang population control measure sapagka't ang Kongreso lamang ang makasasagot sa
tanong kung ano ang nag-udyok dito sa pagbuo ng nasabing batas. Ang tanging dapat
pagtuunan ng pansin ng Korte Suprema ay kung ang batas at ang mga nilalaman nito ay
alinsunod sa itinatakda ng Saligang Batas. Masasabi nating ispekulasyon lamang ang
paghusga sa hangarin ng Kongreso na handa itong sirain ang parental authority  upang
isulong lamang ang population control.  Pasintabi po, hindi maaaring ganito ang tono ng
Korte Suprema patungo sa Kongreso.

Kinikilala ng RH Law na hindi lamang edad ng isang tao ang tanging palatandaan upang
mahandugan ng family planning services. Batid nito ang pangkasalukuyang sitwasyon ng
paglaganap ng maagang pagkamulat at pagsubok ng mga kabataan sa kanilang
sekswalidad. Nangangailangan ding mabigyan ng kaalaman, at kung kinakailangan,
mahandugan ng modern family planning services kung ito ay kanilang gugustuhin, ang
mga menor de edad na nanganak o nagkaroon ng miscarriage. Bilang isang hakbang sa
pangangalaga ng pangkalahatang kalusugan, ang pagbibigay ng modern family planning
services sa mga menor de edad na ito ay daan upang maunawaan nila ang mga
kahihinatnan at kaukulang pananagutan ng pagiging isang magulang, gayong nabuntis
na sila, pati na ang pagbuo ng pamilya.

Hindi akma ang antas ng pagpapahalaga sa  parental authority ng Decision, na sa

pangamba ng Decision ay mawawala dahil lamang sa pakinabang ng menor de edad
sa  family planning services nang walang pahintulot ng kanilang magulang.

"[P]arental authority and responsibility include the caring for and rearing of
unemancipated children for civic consciousness and efficiency and the development of
their moral, mental and physical character and well being."[49] Pinag-uukulan ng ilang
karapatan at tungkulin ang mga magulang kaugnay sa kanilang mga anak na wala pa sa
tamang gulang.[50] Maaaring talikuran o ilipat ang parental
authority at responsibility  ayon lamang sa mga halimbawang nakasaad sa batas.
[51]
 Mabibinbin o mapuputol ito ayon lamang sa mga sitwasyong nakasaad sa Family
Code.[52]

Walang anumang nakasulat sa RH Law na nagsasabing napuputol ang parental

authority  kapag ang menor de edad ay may anak na o nagkaroon ng miscarriage. Hindi
nito dinadagdagan ang mga halimbawang nakasaad sa Family Code ukol sa pagkawala
ng parental authority. Walang anumang nakasulat sa batas na nagbibigay-kapangyarihan
sa pamahalaan upang humalili sa ina at ama sa pagdamay at pagtugon sa mga
pangangailangan ng kanilang mga menor de edad. Kailanma'y hindi kaya at hindi
maaaring gawin ito ng pamahalaan, hindi lamang dahil hindi ito praktikal nguni't dahil
walang makatutumbas sa inaasahang pagmamahal ng magulang. Sa ganitong pagsubok
sa buhay ng isang menor de edad, higit lalo niyang kailangan ang "comfort, care, advice
and guidance from her own parents."[53] Sa ilalim ng RH Law, hindi pinagbabawalan ang
mga menor de edad na may anak o nagkaroon ng miscarriage na humingi ng payo sa
kanilang magulang, at hindi pinagbabawalan ang mga magulang na magbigay nito.
Ipinapalagay na hangad lamang ng mga magulang ang makabubuti para sa kanilang
anak.
Sa pagsasabi na hindi kailangan ang parental consent ng mga menor de edad na may
anak o nagkaroon ng miscarriage bago mabigyan ang mga ito ng modern family
planning services, pinanghihimasukan ng pamahalaan ang ugnayan sa pagitan ng menor
de edad at ang nilapitan nitong medical health professional. Kadalasan, pinagkakaitan
ng reproductive health services ng mga pribado at pampublikong health
professionals  ang mga menor de edad dahil sa kaisipang masyado pa silang mga bata
para magkaroon ng kaalaman sa mga bagay ukol sa kanilang sekswalidad. Ang paghingi
ng parental consent ang madalas na dahilan upang tanggihan ang ganitong pagsangguni
ng mga kabataan. Minsan nga, hinihiya pa ang mga ito. Nguni't kailangang tandaan na
nagdalang-tao na ang mga menor de edad na ito, at hindi na masasabing wala silang
muwang pagdating sa mga bagay na sekswal.

Bahagi ng RH Law ang paninindigan ng pamahalaan na ang mga kabataan ay active

rights holders, at katungkulan ng pamahalaan na siguraduhin na matatamasa nila ang
kanilang mga karapatan nang walang diskriminasyon.[54] Upang mapangalagaan ang
karapatan ng mga kabataan na magkaroon ng mahalagang kaalaman ukol sa kanilang
kalusugan, ipinaguutos ng RH Law ang pagtuturo ng age- and development-appropriate
reproductive health education[55]  sa lahat ng pribado at pampublikong paaralan.

Naaayong linawin na sakop ng kautusang magturo ng reproductive health education  sa

kanilang mga mag-aaral ang mga pribadong paaralan. Opsyonal ang paggamit
ng curriculum na bubuuin ng Department of Education. Ang nasabing curriculum ay
gagamitin ng mga pampublikong paaralan at maaaring gamitin ng mga pribadong
paaralan.

Ito ang paglilinaw ni Representative Edcel C. Lagman kaugnay sa giit ng petitioners  na

lumalabag sa equal protection clause ng Saligang Batas ang RH Law dahil ginagawa
nitong mandatory  sa pampublikong paaralan at opsyonal sa pribadong paaralan
ang reproductive health education. Ayon sa kanya:

143. x x x [A]ge and development appropriate RH education is mandatory in formal

and non-formal educational system without distinction whether they are public or
private, where adolescents are enrolled. Clearly, private schools are not exempt from
affording their adolescent pupils/students [with] proper and appropriate RH
education.

144. The difference only pertains to the RH curriculum which shall be formulated by

DepEd which "shall be used by public achools and may be adopted by private
schools."

145. If the DepEd curriculum is not adopted by private schools, they can formulate their
own curriculum subject to the review and approval of the DepEd which has jurisdiction
over private schools. Private schools are accorded equal flexibility in adopting their own
curriculum after requisite consultation as provided in the RH Law.[56] (Emphases
supplied)

Bukod sa pagbibigay sa kanila ng age- and development-appropriate reproductive

health education, ginagawaran din ng dagdag na karapatan ang mga menor de edad na
may anak o nagkaroon ng miscarriage na makinabang sa mga reproductive health
services na inihahandog ng pamahalaan.

Kaagad na mauunawaan ang katuwiran kung bakit may dagdag na karapatan na

ibinibigay sa mga menor de edad na may anak o nagkaroon ng miscarriage. Kung ang
hindi pa nagbubuntis ay may karapatan sa akmang kaalaman, higit na may karapatan
ang nagbuntis na. Naglahad ang Committee on the Rights of the Child na "[a]dolescent
girls should have access to information on the harm that early marriage and early
pregnancy can cause, and those who become pregnant should have access to health
services that are sensitive to their rights and particular needs. "[57] Batay sa karapatan ng
mga kabataan na malayang maihayag ang kanilang pananaw sa mga bagay na may
kinalaman sa kanila, nararapat na isaalang-alang ang kanilang saloobin.[58] Kung
mababatid na may tamang kamalayan at nasa hustong pag-iisip ang menor de edad na
may anak o nagkaroon ng miscarriage, sapat na na ibigay nila ang kanilang informed
consent.[59]

Public officers at skilled health professionals

Hindi ako sang-ayon sa Decision na walang totoong pagkakaiba sa pagitan ng pribado at

pampublikong health officers. Naniniwala ako na napakalaki ng pagkakaiba sa pagitan
nila at nagmumula ito sa kadahilanang inaasahan ang mga pampublikong health
officers  bilang frontline  sa paghahatid ng serbisyong pangkalusugan.[60] Bilang public
officers, may pananagutan sila sa taong-bayan sa lahat ng oras, at nararapat na
maglingkod sila nang may dangal, katapatan, kahusayan, ganap-taglay ang pagiging
makabayan at makatarungan, at payak ang pamumuhay.[61] Maaari din nating banggitin
na ang sambayanan ang nagpapasahod sa kanila.

Sa pamamagitan ng paglilingkod ng mga pampublikong health officers naisasakatuparan

ng pamahalaan ang tungkulin nito na pangalagaan ang kalusugan ng mga mamamayan,
lalo na ang mga maralitang bahagya na ngang makabili ng sapat na pagkain sa araw-
araw.

Sa puntong ito, binibigyang-diin na maaaring maging conscientious objectors ang mga

pampublikong health officers. Malinaw ito sa RH Law mismo na naglatag ng karapatan sa
conscientious objection nang walang pasubali sa pagitan ng pribado at
pampublikong health professionals.  Pinagtitibay ito ng IRR ng RH Law na nagsasabing
maaring maging conscientious objectors ang mga pampublikong skilled health
professionals sa ilalim ng bahaging ito:

SECTION 5.24. Public Skilled Health Professional as a Conscientious Objector. -In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled  health  professional shall comply with  the
following requirements:

a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;
c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client's travel
arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay. (Emphasis supplied)

Sa gayon, hindi karapat-dapat na sabihing lumalabag sa equal protection clause ng ating

Saligang Batas ang RH Law at IRR nito. Kaugnay nito, tinutuligsa ang sumusunod na
bahagi ng Section 5.24 ng IRR ng RH Law:

Provided, That skilled health professionals such as provincial, city, or municipal health

officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
(Emphasis supplied)

Itinatadhana nito na hindi maaaring maging conscientious objectors ang mga

pampublikong skilled health professionals na mismong inatasang magsagawa ng mga
kautusan at programa sa ilalim ng RH Law at IRR nito. Malinaw ang dahilan nito.
Walang makabuluhang pagsasakatuparan ng RH Law, at pangangalaga sa reproductive
health ng sambayanan, kung hahayaan ang mga provincial, city, o municipal health
officers, chiefs of hospital, head nurses at  supervising midwives - iyong mga itinuturing
na nasa frontline ng paghahatid ng serbisyong pangkalusugan - na tumangging magbigay
ng reproductive health care services at mahalagang kaalaman ukol dito.

Makikitang hindi discriminatory ang nasabing probisyon kapag inilapat ang test of

reasonableness.[62] Sakop lamang nito ang mga public skilled health professionals na
inatasang isagawa ang mga kautusan at programa sa ilalim ng RH Law at IRR nito.
Makikita na iyon lamang mga may management prerogative at kapangyarihang mag-
impluwensiya ng pamamalakad ng kanilang institusyon ang hindi maaaring tumangging
maghatid ng reproductive health care services at mahalagang kaalaman ukol dito.
Malinaw ang pagkakaiba nila sa ibang pampublikong health professionals na maaaring
maging conscientious objectors.

Malinaw din na may kaugnayan sa layunin ng RH Law ang pagbubukod sa mga skilled

health professionals gaya ng provincial, city, o municipal health officers, chiefs of
hospital, head nurses at supervising midwives. Walang sinuman ang makapagsasabi na
ito ay ''palpably arbitrary or capricious  "[63] gayong ang sakop nito ay iyon lamang mga
itinuturing na pinuno ng mga pampublikong institusyon. Walang dahilan upang
ipangamba na ipatutupad lamang ang pagbubukod na ito sa umiiral na kalagayan o kaya
hindi ito ipatutupad sa lahat ng  provincial, city, o municipal health officers, chiefs of
hospital, head nurses at supervising midwives.

Bilang mga kawani ng pamahalaan, nalalagay sa isang pambihirang katayuan ang

mga public officers  para isakatuparan ang mga nilalayon ng pamahalaan. Dahil dito,
malaki ang nakaatang na responsibilidad sa kanila upang ilunsad ang mga balakin ng
pamahalaan. Pagdating sa reproductive health programs, magiging kahangalan para sa
pamahalaan kung hahayaan nito na sariling mga kawani ang humadlang sa
pamamagitan ng paglalatag ng mga salungat na patakaran gamit ang makinarya ng
pamahalaan. Samakatuwid, hindi dapat payagang tumalikod sa tungkulin ang
isang public officer na mismong inatasang isagawa ang mga kautusan at programa sa
ilalim ng RH Law at IRR nito, o biguin nito ang paglulunsad ng isang reproductive health
program.

PhilHealth Accreditation

Sa ilalim ng Section 17 ng RH Law, hinihikayat ang mga pribadong reproductive health

care service providers, gaya ng  gynecologists at  obstetricians , na magbigay ng
libreng reproductive health care services katumbas ng 48 oras bawat taon sa mga
maralitang pasyente. Itinatakda din ng Section 17 na kailangang magbigay ng nasabing
serbisyo katumbas ng 48 oras ang mga medical professionals upang magkaroon sila
ng PhilHealth accreditation. Ayon sa Decision, nararapat na bigyan din ng exemption ang
mga conscientious objectors sa panuntunang ito dahil sa kanilang religious beliefs na
nagbabawal sa kanilang magbigay ng serbisyo ukol sa reproductive health.

Ayon sa petitioners , tinututulan nila ang pagpapalaganap ng contraceptives, na

itinuturing nilang likas na masama. Hindi nila tinututulan ang pagpapahalaga
sa  reproductive health ng mga mamamayan, partikular na ang mga maralita. Tinutukoy
sa Section 17 ang pagbibigay ng libreng reproductive health care services.

Batay sa RH Law, tumutukoy ang reproductive health care  sa paghahatid ng lahat ng

serbisyo, kagamitan, pamamaraan at facilities na makatutulong sa ikabubuti
ng reproductive health sa pamamagitan ng pagtugon sa mga sakit na kaugnay nito.
[64]
 Kasama dito ang pagpapanatili ng sexual health  upang mapabuti ang antas ng buhay
at personal relations ng mga mamamayan. Saklaw ng  reproductive health care ang mga
sumusunod na bahagi nito:

1) Family planning information and services which shall include as a first priority making
women of reproductive age fully aware of their respective cycles to make them aware of
when fertilization is highly probable, as well as highly improbable;

2) Maternal, infant and child health and nutrition, including breastfeeding;

3)  Proscription of abortion and management of abortion complications;

4)  Adolescent and youth reproductive health guidance and counseling;

5) Prevention, treatment and management of reproductive tract infections (RTis), HIV

and AIDS and other sexually transmittable infections (STis);
6) Elimination of violence against women and children and other forms of sexual and
gender-based violence;

7)  Education and counseling on sexuality and reproductive health;

8)  Treatment of breast and reproductive tract cancers and other gynecological
conditions and disorders;

9)  Male responsibility and involvement and men's reproductive health;

10) Prevention, treatment and management of infertility and sexual dysfunction;

11) Reproductive health education for the adolescents; and

12) Mental health aspect of reproductive health care.[65]

Makikita sa listahang ito ang lawak ng saklaw ng  reproductive health care na tinutukoy
sa Section 17. Masasabing isa lamang sa family planning information and
services  ang contraceptives at contraception na tinututulan ng mga conscientious
objectors. Mayroon pang labing-isang bahagi ng  reproductive health care na kasunod
nito. Maaaring gamitin ng mga reproductive health care service providers  ang mga
libreng serbisyo na mapapaloob sa anumang bahagi ng reproductive health care  upang
mabuo ang 48 oras na kakailanganin nila para sa kanilang PhilHealth accreditation.
Maaari ngang ibuhos ng conscientious objector ang lahat ng 48 oras sa pagpapalaganap
ng natural family planning method. Alalahanin ng lahat na pribilehiyo at hindi karapatan
ang magkaroon ng PhilHealth accreditation kaya't tama lang na isukli
ng gynecologists at obstetricians ang 48 oras na pro bono service sa maralita upang
mapangalagaan ang kanilang reproductive health.

Kung tutuusin, reproductive health care ng mga pasyente ang pangunahing

pinagtutuunan ng pansin ng mga gynecologists at obstetricians. Kung bibigyan sila
ng exemption sa Section 17  dahil conscientious objector sila, ang tanging magiging
epekto nito ay hindi nila kakailanganing magbigay ng anumang libreng serbisyo. Kung
gayon, mawawalan ng saysay ang layunin ng pamahalaan sa ilalim ng RH Law na ihatid
sa mga maralitang mamamayan ang kadalubhasaan ng mga pribadong reproductive
health care service providers.

Pahuling Pasabi

Walang pinapanigan ang Korte Suprema kundi ang Saligang Batas, at pinakinggan ang
lahat ng dumulog dito sa usapin ng RH Law. Hati-hati ang opinyon pagdating
sa reproductive health at family planning. Halimbawa, bagama't may mga pagtutol ang
bahagi ng Simbahang Katolika sa reproductive health atfamily planning, itinuturing
naman itong alinsunod sa mga aral ng Islam. Ayon safatwah na inilabas ng Assembly of
Darul-Iftah of the Philippines kaugnay sa reproductive health at family planning, walang
kasulatang napapaloob sa Qur'an na nagbabawal sa pagpigil at pag-aagwat sa
pagbubuntis at pagbabawas sa dami ng anak.
Ayon din sa kanila, hindi salungat sa konsiyensiya ang family planning. Sa katunayan,
itinataguyod ito ng Shariah. Itinakda ng Qur'an na kailangang pasusuhin ng ina ang
sanggol hanggang ito ay dalawang taong gulang, at nagbabala ang Propeta laban sa
pagpapasuso ng inang nagdadalang-tao. Malinaw dito ang layuning pag-aagwat ng
pagbubuntis, kung saan kinakailangang hindi mabuntis ang ina sa loob ng dalawang taon
na ito ay nagpapasuso.

Pinapayagan ang lahat ng methods of contraception hangga't ang mga ito ay ligtas,
naaayon sa batas, aprobado ng medical professionals at alinsunod sa Islamic Shariah.
Wala ring nakikitang pagtutol ang Shariah sa pakahulugan ng International Conference
on Population and Development sa reproductive health,[66] patina ang mga prinsipyo nito
ukol sa pagpapasiya sa dami at pag-aagwat ng mga anak, pagkakaroon ng kaalaman ukol
sa sariling sekswalidad, pagiging ligtas sa mga sakit kaugnay sa reproduction, at
pagkakaroon ng safe at satisfying sex life sa pagitan ng mag-asawa. Kung susukatin ang
mga adhikain ng RH Law batay sa religious freedom ng mga Muslim, na bumubuo sa
limang porsiyento ng mga Pilipino, wala itong hatid na ligalig o pasanin.

Sa likod ng karapatan sa malayang pagsamba at pagpapahayag ng relihiyon ay ang

pagrespeto sa paniniwala ng iba. Hati-hati maging ang mga opinyon ng mga Katoliko
pagdating sa reproductive health  at family planning. Malaking bahagi ng mga Katoliko
ang sumusuporta sa RH Law at mga layunin nito. Dahil dito, walang maituturing na
iisang awtoridad pagdating sa usaping ito kundi ang Saligang Batas. Ito ang nag-iisang
batayan na isasaalang-alang upang makarating ang Korte Suprema sa konklusyong
makatarungan para sa lahat.

AKO AY SANG-AYON sa Decision na ang SECTIONS 4(A), 9, 15, 17 AT 24 NG RH LAW AY

HINDI LABAG SA SALIGANG BATAS. SANG-AYON DIN AKO na ang RH LAW AY HINDI
LABAG SA RIGHT TO LIFE, RIGHT TO HEALTH, RIGHT TO EQUAL PROTECTION OF THE
LAW AT RIGHT TO DUE PROCESS OF THE LAW ng mga mamamayan. Bukod dito, SANG-
AYON AKO NA ANG RH LAW AY HINDI LABAG SA PRINCIPLE OF NON-DELEGATION OF
LEGISLATIVE AUTHORITY, ONE SUBJECT - ONE BILL RULE AT AWTONOMIYA ng mga
pamahalaang lokal at ng Autonomous Region of Muslim Mindanao sa ilalim ng Saligang
Batas.

SANG-AYON AKO na HINDI PA NAPAPANAHON UPANG MAGPAHAYAG ANG KORTE

SUPREMA UKOL SA PAGPAPAWALANG-BISA NG SECTION 14 dahil hindi pa nakabubuo
ng curriculum ang Department of Education. Hindi pa rin napapanahon upang ipahayag
kung ang RH Law ay labag sa right to health ng mga mamamayan dahil wala pang
contraceptive na naisusumite para sa pagsusuri ng FDA sa ilalim ng RH Law.

SANG-AYON AKO na nararapat na IPAWALANG-BISA ANG SECTION 3.01(A) AT 3.01(J)

NG IRR NG RH LAW dahil nagdadagdag ito ng salitang "primarily" sa kahulugan
ng abortifacient, na hindi naman ayon sa mga titik ng Section 4(a) ng RH Law.

GAYUNPAMAN, hindi nito maaapektuhan ang paniniwala kong ang LAHAT NG MGA

PROBISYON NG RH LAW NA TINUTULIGSA NG PETITIONERS  AY PAWANG
KONSTITUSYONAL.

SAMAKATUWID, ako ay bumoboto para ipahayag na HINDI LABAG SA SALIGANG

BATAS ang SECTIONS 7, 17, 23(A)(1), 23(A)(2)(1), 23(A)(2)(11), 23(A)(3) AT 23(B) NG RH
LAW.

[1]
 Article II, Section 12.

[2]
 Barangay Association for National Advancement and Transparency (BANAT) Party-List
v. COMELEC, G.R. No. 177508, 7 August 2009, 595 SCRA 477; Samson v. Aguirre, 373
Phil. 668 (1999); US v. Grant, 18 Phil. 122(1910).

[3]
  Insular Lumber Co. v. Court of Tax Appeals, 192 Phil. 221 (1981); Municipality of Jose
Panganiban, Camarines Norte v. Shell Company, 124 Phil. 197 (1966); Yu Cong Eng v.
Trinidad, 47 Phil. 385 (1925).

[4]
 Garcia v. COMELEC, G.R. No. 111511 , 5 October 1993,227 SCRA 100.

[5]
 Id.

[6]
 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and
Management, G.R. No. 164987, 24 April 2012, 670 SCRA 373; Cawaling, Jr. v.
COMELEC,  420 Phil. 524 (2001); Dimaporo v. Mitra, Jr., 279 Phil. 843 (1991).

[7]
 Cawaling v. COMELEC, supra note 7.

[8]
 Basco v. PAGCOR, 274 Phil. 323 (1991).

[9]
 Section 7. Access to Family Planning. - All accredited public health facilities shall
provide a full range of modern family planning methods, which shall also include
medical consultations, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have children: Provided. That
family planning services shall likewise be extended by private health facilities to paying
patients with the option to grant free care and services to indigents, except in the case
of non maternity specialty hospitals and hospitals owned and operated by a religious
group, but they have the option to provide such full range of modern family planning
methods: Provided, further, That these hospitals shall immediately refer the person
seeking such care and services to another health facility which is conveniently
accessible: Provided, finally, That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern
methods of family plan ning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage.

[10]
 Sa ilalim ng R.A. 8344 (An Act Penalizing the Refusal of Hospitals and Medical Clinics
to Administer Appropriate Initial Medical Treatment and Support in Emergency or
Serious Cases), sinasabi na:

SECTION 2. Section 2 of Batas Pambansa Bilang 702 is hereby deleted and in place
thereof, new sections 2, 3 and 4 are added, to read as follows:

"SEC. 2. For purposes of this Act, the following definitions shall govern:

"(a) 'Emergency' -a condition or state of a patient wherein based on the objective find
ings of a prudent medical officer on duty for the day there is immediate danger and
where delay in initial support and treatment ma y cause loss of life or cause
permanent disability to the patient. (Emphases supplied)

[11]
 Ayon sa lRR ng RH Law:

Section 5.21. Family planning services shall likewise be extended by private health
facilities to paying patients with the option to grant free care and services to indigents,
except in case of non-maternity specialty hospitals and hospitals operated by a religious
group, but have the option to provide such full range of modern family planning
methods;Provided further, That these hospitals shall immediately refer the person
seeking such care and services to another health facility which is conveniently
accessible;  Provided finally, That the person is not in an emergency condition or serious
case as defined in RA 8344.

Section 5.22. Exemption of Private Hospitals from Providing Family Planning Services. -

Private health facilities shall provide a full range of modern family planning methods to
clients, unless the hospital is owned and operated by a religious group, or is classi fied as
a non-maternity specialty hospital, as part of their annual licensing and accreditation
requirements.

In order to receive exemption from providing the full range of modern family planning
methods, the health care facility must comply with the following requirements:

a) Submission of proof of hospital ownership and management by a religious group or

its status as a nonmaternity specialty hospital;

b) Submission to the DOH of an affidavit stating the modem family planning methods
that the facil ity refuses to provide and the reasons for its objection;

c) Posting of a notice at the entrance of the facility, in a prominent location and using a
clear/legible layout and font, enumerating the reproductive health services the facility
does not provide; and d) Other req uirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop
guidelines for the implementation ofthis provision.

[12]
 Ayon sa JRR ng RH Law:

Section 4.06. Access to Family Planning Information and Services. - No person shall be

denied in formation and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modem methods of family
planning without written consent from their parents or guardian/s except when the
minor is already a parent or has had a miscarriage.
Section 4.07. Access of Minors to Family Planning Services. - Any minor who consu lts at
health care facilities shall be given age-appropriate counseling on responsible
parenthood and reproductive health. Health care facilities shall dispense health
products and perform procedures for family planning: Provided, That in public health
facilities, any of the following conditions are met:

a) The minor presents written consent from a parent or guardian; or

b) The minor has had a previous pregnancy or is already a parent as proven by any one
of the following circumstances, among others:

1. Written documentation from a skilled health professional;

2. Documentation through ancillary examinations such as ultrasound;
3. Written manifestation from a guardian, local social welfare and development officer,
local government official or local health volunteer; or
4. Accompanied personally by a parent, grandparent, or guardian.

Provided further, That consent shall not be required in the case of abused or exploited
minors, where the parent or the person exercising parental authority is the respondent,
accused, or convicted perpetrator as certified by the proper prosecutorial office or the
court.

Provided further, That  in the absence of any parent or legal guardian, written consent
shall be obtained only for elective surgical procedures from the grandparents, and in
their default, the oldest brother or sister who is at least 18 years of age or the relative
who has the actual custody of the child, or authorized representatives of children's
homes, orphanages, and similar institutions duly accredited by the proper government
agency, among others. In no case shall consent be required in emergency or serious
cases as defined in RA 8344.

Provided finally,  That in case a minor satisfies any of the above conditions but is still
refused access to information and/or services, the minor may direct complaints to the
designated Reproductive Health Officer (RHO) of the facility. Complaints shall be acted
upon immediately.

[13]
 Section 23. Prohibited Acts.-The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

[14]
 Section 5.24. Public Skilled Health Professional as a Conscientious Objector. - In order
to legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skil led health professional shall comply with the
following requirements:
a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client's travel
arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health

officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop
guidelines for the implementation of this provision.

[15]
 Section 23. Prohibited Acts.  - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement,
the decision of the one undergoing the procedure shall prevail; and x x x.

[16]
 Section 16.01. The following acts are prohibited:

a) Any health care service provider, whether public or private, who shall:

2. Refuse to perform legal and medically-safe reproductive health procedures on any

person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
i. Spousal consent in case of married persons: Provided, That in case of disagreement,
the decision of the one undergoing the procedure shall prevail; and

[17]
 Section 23. Prohibited Acts.-The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

xxx

(ii) Parental consent or that of the person exercising parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial
office of the court. In the case of minors, the written consent of parents or legal
guardian or, in their absence, persons exercising parental authority or next-of-kin shall
be required only in elective surgical procedures and in no case shall consent be required
in emergency or serious cases as defined in Republic Act No. 8344; and X X X.

[18]
 Section 23. Prohibited Acts.-The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(3) Refuse to extend quality health care services and information on account of the
person's marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and services
to another health care service provider within the same facility or one which is
conveniently accessible: Provided, further, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases.

[19]
 Section 23. Prohibited Acts.-The following acts are prohibited:

(b) Any public officer, elected or appointed, specifically charged with the duty to
implement the provisions hereof, who, personally or through a subordinate, prohibits or
restricts the delivery of legal and medically safe reproductive health care services,
including family planning; or forces, coerces or induces any person to use such services;
or refuses to allocate, approve or release any budget for reproductive health care
services, or to support reproductive health programs; or shall do any act that hinders
the full implementation of a reproductive health program as mandated by this Act;

[20]
 Section 17. Pro Bono Services for Indigent Women. -Private and nongovernment
reproductive health care service providers including, but not limited to, gynecologists
and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing information and education to
rendering medical services, free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government measures of identifying
marginalization, especially to pregnant adolescents. The forty-eight (48) hours
annual pro bono services shall be included as a prerequisite in the accreditation under
the Phil Health.

[21]
 Section 6.11. Pro Bono Services for Indigent Women. - Private and nongovernment
reproductive healthcare service providers including, but not limited to gynecologists and
obstetricians, are encouraged to provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing information and education to
rendering medical services, free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government measures of identifying
marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual
pro bono services shall be included as a prerequisite in the accreditation under the Phil
Health.

Section 6.12. Affidavit Attesting to Pro Bono Service. - For purposes of the above
provision, the health care providers involved in the provision of reproductive health care
shall submit as part of requirements for PhilHealth accreditation a duly notarized
affidavit attested to by two witnesses of legal age, following the format to be prescribed
by PhilHealth, stating the circumstances by which forty-eight (48) hours of pro bono
services per year have been rendered. The same shall be submitted to PhilHealth along
with the other requirements for accreditation.

Section 6. 13. Specification of Pro Bono Services. - Reproductive health care that may be
provided pro bono shall be according to the definition of reproductive health care in
Section 3.01 (ss) of these Rules. Services for which PhilHealth reimbursement is being or
shall be applied for by the health care provider shall not be counted as part of the forty-
eight (48)-hour requirement for pro bono services.

[22]
 Section 3.01. For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the

destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum
to reach and be implanted in the mother's womb upon determination of the Food and
Drug Administration (FDA). (Emphasis supplied)

[23]
 Section 3.01. For purposes of these Rules, the terms shall be defined as follows:

j) Contraceptive  refers to any safe, legal, effective, and scientifically proven modern
family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA). (Emphasis
supplied)

[24]
 Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall
be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of
a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb upon determination of the FDA .

[25]
 Section 12. The State recognizes the sanctity offamily life and shall protect and
strengthen the family as a basic autonomous social institution.  It shall equally protect
the life of th e mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and th e
development of moral character shall receive the support of the Government.

[26]
 455 Phil. 411 (2003).

[27]
 ld. at 577-578.

[28]
 Id. at 530.

[29]
 Memorandum of the Office of the Solicitor General, p. 25.

[30]
 Decision.

[31]
 Article 18(3).

[32]
 Braunfeld v. Brown, 366 U.S. 599 (1961 ).

[33]
 The Limits of Conscientious Refusal in Reproductive Medicine, The American College
of Obstetricians and Gynecologists, Committee on Ethics Opinion, Number 385,
November 2007, Reaffirmed 2013.

[34]
 Id.

[35]
 Id.

[36]
 Unethical Protection of Conscience: Defending the Powerful against the Weak,
Bernard M. Dickens, PhD, LLD, American Medical Association Journal of Ethics,
September 2009, Volume II, Number 9: 725-729.

[37]
 Id.

[38]
 Decision.

[39]
 Section 9. The Philippine National Drug Formulary System and Family Planning
Supplies. - The National Drug Formulary shall include hormonal contraceptives,
intrauterine dev ices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies. The Philippine National Drug Formulary System
(PNDFS) shall be observed in selecting drugs including family planning supplies that will
be included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available
on the condition that  it is not to be used as an abortifacient. (Emphasis supplied)

[40]
 TSN, 6 August 2013, pp. 171-173.

[41]
 Washington v. Glucksberg, 521 U.S. 702.

[42]
 Atienza v. COMELEC, G.R. No. 188920, 16 February 2010, 612 SCRA 761.

[43]
 Union Pacific Railway v. Botsford, 141 U.S. 250.

[44]
 Schloendorff v. Society of New York Hospital, 105 N.E. 92.

[45]
 Nasusulat sa Family Code of the Philippines na:

Article 96. The administration and enjoyment of the community property shall belong to
both spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed of
within five years from the date of the contract implementing such decision.

Naglatag ang batas ng panuntunan na sakaling hindi magkasundo ang mag-asawa sa

pamamahala at pagtamasa sa kanilang ari-arian, mananaig ang pasiya ng asawang lalaki.
Maihahalintulad dito ang probisyon ng RH Law na nagpapahalaga sa sariling
pagpapasiya ng taong may katawan ukol sa resproductive health. Nagbibigay lamang
ang batas ng kalutasan sa panahong hindi magkasundo ang mag-asawa.

[46]
 Decision.

[47]
 Id.

[48]
 Id.

[49]
 FAMILY CODE OF THE PHILIPPINES, Article 209.

[50]
 Id., Article 220. The parents and those exercising parental authority shall have with
respect to their unemancipated children or wards the following rights and duties:

1) To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for thei r upbringing in keeping with their
means;
2) To give them love and affection, advice and counsel, companionship and
understanding;
3) To provide them with moral and spiritual gu idance, inculcate in them honesty,
integrity, self discipline, self-reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of citizensh ip;
4) To enhance, protect, preserve and maintain their physical and mental health at all
times;
5) To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and
prevent them from acquiring habits detrimental to their health, studies and morals;
6) To represent them in all matters affecting their interests;
7) To demand from them respect and obedience;
8) To impose discipline on them as may be required under the circumstances; and
9) To perform such other duties as are imposed by law upon parents and guardians.
(316a)

[51]
 Id., Article 210.

[52]
 Article 228. Parental authority terminates permanently:

1) Upon the death ofthe parents;

2) Upon the death of the child; or
3) Upon emancipation of the child. (327a)

Article 229. Unless subsequently revived by a final judgment, parental authority also
terminates:

1) Upon adoption ofthe child;

2) Upon appointment of a general guardian;
3) Upon judicial declaration of abandonment ofthe child in a case filed for the purpose;
4) Upon final judgment of a competent court divesting the party concerned of parental
authority; or
5) Upon judicial declaration of absence or incapacity of the person exercising parental
authority. (327a) Article 230. Parental authority is suspended upon con viction of the
parent or the person exercisi ng the sa me of a crime which carries with it the penalty of
civil interdiction. The authority is automatically reinstated upon service of the penalty or
upon pardon or amnesty of the offender. (330a)

Article 231. The court in a n action filed for the purpose or in a related case may also
suspend parental authority if the parent or the person exercising the same:

1) Treats the child with excessive harshness or cruelty;

2) Gives the child corrupting orders, counsel or example;
3) Compels the child to beg; or
4) Subjects the child or allows him to be subjected to acts of lasciviousness.

The grounds enumerated above are deemed to incl ude cases which have resulted from
culpable negligence of the parent or the person exercising parental authority.

If the degree of seriousness so warrants, or the welfare of the child so demands, the
court shall deprive the  guilty party of parental authority or adopt such other measures
as may be proper under the circumstances. The suspension or deprivation may be
revoked and the parental authority revived in a case filed for the purpose or in the same
proceedi ng if the court finds that the cause therefor has ceased and will not be
repeated. (332a)

Article 232. If the person exercising pa rental authority has subjected the child or
allowed him to be su bjected to sexual abuse, such person shall be permanently
deprived by the court of such authority. (n)

[53]
 Decision.

[54]
 Committee on the Rights of the Child, General Comment No. 4, Adolescent health
and development in the context ofthe Convention on the Rights ofthe Child , U.N. Doc.
CRC/GC/2003/4 (2003).

[55]
 Section 14. Age- and Development-Appropriate Reproductive Health Education. - The
State shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trai ned teachers in formal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible teenage behavior; gender
and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents
teachers-community associations, school officials and other interest groups. The
Department of Education (DepEd) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.(Emphasis supplied)

[56]
 Joint Memorandum (Of Respondent House of Representatives and Respondent-
Intervenor Rep. Edcel C. Lagman), pp. 57-58.

[57]
 General Comment No. 4, Adolescent health and development in the context of the
Convention on the Rights of the Child, U.N. Doc. CRC/GC/2003/4 (2003).

[58]
 Id.

[59] 
Id.

[60]
 Estampa, Jr. v. City Government of Davao, G.R. No. 190681, 21 June 2010, 621 SCRA
350.

[61]
 CONSTITUTION, Article XI, Section 1; Amit v. Commission on Audit, G.R. No. 176172,
20 November 2012; San Jose, Jr. v. Camurongan, 522 Phil. 80 (2006).

[62]
 Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 and 193036, 7
December 2010, 637 SCRA 78.

[63]
 Quinto v. COMELEC, G.R. No. 189698, 22 February 2010, 613 SCRA 385.

[64]
 Section 4(q).

[65]
 Id.

[66]
 Ang kahulugan ng reproductive health ay "a state of com plete physical, mental and
social well-being and not merely the absence of disease or infirmity in all matters
relating to the re productive syst em and to iyts functions and processes. "

CONCURRING OPINION

CARPIO, J.:

I concur in the ponencia of Justice Jose Catral Mendoza. However, my opinion is that at

this stage, the Court is simply not competent to declare when human life begins,
whether upon fertilization of the ovum or upon attachment of the fertilized ovum to the
uterus wall. The issue of when life begins is a scientific and medical issue that cannot be
decided by this Court without the proper hearing and evidence. This issue has not even
been settled within the scientific and medical community.

R.A. No. 10354,. however, protects the ovum upon its fertilization without saying that
life begins upon fertilization. This should be sufficient for purposes of resolving this case
- for whether life begins upon fertilization or upon implantation of the fertilized ovum
on the uterus wall, R.A. No. 10354 protects both asserted starting points of human life.
Absent a definitive consensus from the scientific and medical community, this Court
cannot vent.ure to pronounce which starting point of human life is correct. We can only
reiterate what Section 12, Article II of the Constitution provides, that the State shall
"equally protect the life of the mother and the life of the unborn from conception x x x."

Section 12, Article II of the Constitution is repeated in Section 2 of R.A. No. 10354. The
law does not provide a definition of conception. However, the law is replete with
provisions that embody the policy of the State to protect the travel of the fertilized
ovum to the uterus wall. In fact, the law guarantees that the State will provide access
only to "medically-safe, non-abortifacient, effective, legal,  affordable, and quality
reproductive health care services, methods, devices, supplies which do not prevent the
implantation of a fertilized ovum as determined by the Food and Drug
Administration."[1] R.A. No. 10354 protects the fertilized ovum by prohibiting services,
methods, devices or supplies that prevent its implantation on the uterus wall.

Accordingly, I concur in the ponencia of Justice Jose Catral Mendoza.

[1]
 Section 2(d), second paragraph, R.A. No 10354

SEPARATE CONCURRING OPINION

BRION, J.:

I submit this Separate Concurring Opinion to reflect my views on selected constitutional

issues submitted to the Court.

I agree with the ponencia’s conclusion that the petitions before the Court are ripe for
judicial review, but I do so under a fresh approach that meets head-on the recurring
problems the Court has been meeting in handling cases involving constitutional issues.
My discussions on this point are likewise submitted to reply to the position of Mr.
Justice Marvic Leonen that the petitions are not appropriate for the exercise of the
Court’s power of judicial review.

I also agree with the ponencia that the Reproductive Health (RH) law protects and
promotes the right to life by its continued prohibition on abortion and distribution of
abortifacients. I exclude from this concurrence Section 9 of the RH law and its
Implementing Rules and Regulation (IRR) which, in my view, fail in their fidelity to the
constitutional commands and to those of the RH Law itself; for one, they fail to adopt
the principle of double effect under Section 12, Article II of the 1987 Constitution
(“Section 12”).

For these reasons, I cannot wholly agree that the RH Law is fully protective of the
unborn from conception. I submit, too, that the Court should formulate guidelines on
what the government can actually procure and distribute under the RH law, consistent
with its authority under this law and Section 12, Article II to achieve the full protection
the Constitution envisions.

I also agree that the challenge to Section 14 of the RH Law is premature. However, I
submit my own views regarding the mandatory sex education in light of the natural and
primary right of parents to raise their children according to their religious beliefs. My
discussion on this topic also responds to the position of Mr. Justice Bienvenido Reyes
that the challenge to the constitutionality is ripe and that the government has a
compelling interest in enacting a mandatory sex education program.

Lastly, I find the RH law’s Section 23(a)(1), which penalizes healthcare providers who
“knowingly withhold information or restrict the dissemination thereof, and/or
intentionally provide incorrect information regarding programs and services on
reproductive health” to be unconstitutional for violating the freedom of speech.

For easy reference and for convenience, this Opinion shall proceed under the following
structure:

I. Preliminary Considerations

A. The petitions are ripe for judicial review: the fresh approach under the
1987 Constitution

a. The Historical Context of Judicial Power

 b. Analysis of Section 1, Article VIII of the 1987 Constitution.

b.1. The Power of Judicial Review

b.2. The New and Expanded Power

B. The Three Types of Adjudicative Judicial Power

C. The Court is duty bound to resolve the present petitions, not merely
dismiss them.

II. Substantive Discussions

A. The RH Law does not fully protect the right to life of the unborn child

a. Overview

i. The primacy of life in the Philippine context

b. The 1987 Constitution

a. The status of the unborn under the 1987 Constitution

b. The constitutional meaning of conception and to whom this right to

life extends

c. Section 12, Article II of the 1987 Constitution as a self-executing

provision

B. Section 12, Article II of the 1987 Constitution and Roe v. Wade

C. Abortion, abortifacients and the RH Law

D. The RH law’s definition of abortifacient textually complies with Section 12,

Article II, 1987 Constitution

E. The principle of double effect

a. The role of the DOH

b. Guidelines

F. Parental Rights
 a. Parental rights in the Filipino context

b. Parental rights and the State’s interest in the youth

c. The state has failed to show a compelling State interest to override
parental rights in reproductive health education
d. The question on Section 14’s constitutionality is premature

B. Disturbing observations and concerns: The Effects of Contraceptives on

national, social and cultural values

C. Freedom of Expression of Health Practitioners and the RH Law

I. Preliminary Considerations

A. The petitions are ripe for judicial review: the fresh approach under the 1987
Constitution

I submit that the petitions are ripe for judicial review. My approach is anchored on
a “fresh” look at the 1987 Constitution and the innovations it introduced on the Judicial
Department, specifically, on the expansion of the Court’s adjudicative “judicial power.”

a. The Historical Context of Judicial Power.

The 1935 Constitution mentioned the term “judicial power” but did not define it.  The
Constitution simply located the seat of this power “in one Supreme Court and in such
inferior courts as may be established by law.”

The 1973 Constitution, for its part, did not substantially depart from the 1935
formulation; it merely repeated this same statement and incorporated part of what
used to be another section in the 1935 Constitution into its Section 1. Thus, Section 1 of
the Article on the Judicial Department of the 1973 Constitution provided:

The Judicial power shall be vested in one Supreme Court and in such inferior courts as
may be established by law. The National Assembly shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts, but may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section five thereof.

The 1987 Constitution, in contrast with the preceding Constitutions, substantially

fleshed out the meaning of “judicial power,” not only by confirming the meaning of the
term as understood by jurisprudence up to that time, but by going beyond the accepted
jurisprudential meaning of the term. The changes are readily apparent from a plain
comparison of the provisions. The same Section 1 under Judicial Department (Article
VIII) now reads:
The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and enforceable, AND to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (emphasis and underscoring supplied)

b. Analysis of Section 1, Article VIII

of the 1987 Constitution.

This simple comparison readily yields the reading – through the repetition of the
sentence that both the 1935 and the 1973 Constitutions contained – that the 1987
Judiciary provisions retain the same “judicial power” that it enjoyed under the 1935 and
the 1973 Constitutions.

In addition, the 1987 Constitution, through the 2nd paragraph of its Section 1, confirms
that judicial power is wider than the power of adjudication that it traditionally carried
(by using the word “includes”) and at the same time incorporated the
basic requirements for adjudication  in the traditional concept, namely, the presence
of “actual controversies,” based on “rights which are legally demandable and
enforceable.”

The confirmation expressly mentions that the power is granted to “courts of

justice”  and, aside from being a power, is imposed as a duty of the courts. Thus, the
Constitution now lays the courts open to the charge of failure to do their constitutional
duty when and if they violate the obligations imposed in Section 1, Article VIII of the
1987 Constitution.

Section 5, Article VIII of the 1987 Constitution further fleshes out the irreducible
“powers” of the Supreme Court[1] in terms of its original, appellate, and review
adjudicative powers and its other non-adjudicative powers.[2] In so doing, Section 5 also
confirmed the extent of the constitutionally-granted adjudicative power of the lower
courts that Congress has the authority to create (by defining, prescribing and
apportioning their jurisdictions[3]), as well as the grant of administrative, executive and
quasi-legislative powers to the Supreme Court, all within the sphere of its judicial
operations.

Section 5 now provides:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court  is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may
require. Such temporary assignment shall not exceed six months without the consent of
the judge concerned.

(4) Order a change of venue or place of trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the protection and enforcement of constitutional

rights, pleading, practice, and procedure in all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the Judiciary in accordance with the Civil
Service Law.

b.1. The Power of Judicial Review.

In the process of making “judicial power” more specific and in outlining the specific
powers of the Supreme Court, the Constitution made express the power of “judicial
review,” i.e., the power to pass upon the constitutional validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation,[4] as the “law or the Rules of Court may provide.”

This formulation recognizes that the Supreme Court, even before the 1987 Constitution
came, already had workable rules of procedure in place for the courts. These rules cover
ordinary actions, special civil actions, special proceedings, criminal proceedings, and the
rules of evidence in these proceedings, all of which the 1987 Constitution recognized
when it mentioned the Rules of Court, but subject to the Supreme Court’s power of
amendment.

b.2. The New and Expanded Power.

Still another addition, a completely new one, to the concept of judicial power under the
1987 Constitution is the power “to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.”[5] This new power is innovative since its
recognition is separate from the traditional adjudicative power that Section 1 earlier
confirms and which Section 5 in part fleshes out.

It is likewise a definitive expansion of judicial power as its exercise is not over the
traditional justiciable cases handled by judicial and quasi-judicial tribunals. Notably,
judicial power is extended over the very powers exercised by other branches or
instrumentalities of government when grave abuse of discretion is present. In other
words, the expansion empowers the judiciary, as a matter of duty, to inquire into acts
of lawmaking by the legislature and into law implementation by the executive when
these other branches act with grave abuse of discretion.

This expansion takes on special meaning when read with the powers of the Court under
Section 5, particularly in relation with the Court’s power of judicial review, i.e., the
power to declare a treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordination or regulation unconstitutional.

Under the expanded judicial power, justiciability expressly depends only on the

presence or absence of grave abuse of discretion, as distinguished from a situation
where the issue of constitutional validity is raised within a traditionally justiciable case
where the elements of actual controversy based on specific legal rights must exist.  In
fact, even  if the requirements for strict justiciability are applied, these requisites can
already be taken to be present once grave abuse of discretion is prima facie shown to be
present.

In the process of lawmaking or rulemaking, for example, an actual controversy is already

present when the law or rule is shown to have been attended by grave abuse of
discretion because it was passed; it operates; or its substantive contents fall, outside the
contemplation of the Constitution.[6] This should be contrasted with allegations of
constitutional invalidity in the traditional justiciable cases where, by express
constitutional requirement, the elements of (1) actual controversy involving (2)
demandable and enforceable rights, must be present because what essentially comes to
court is the traditional justiciable case, interwoven with constitutional validity questions.

In the expanded judicial power, any citizen of the Philippines to whom the assailed law
or rule is shown to apply necessarily has locus standi since a constitutional violation
constitutes an affront or injury to the affected citizens of the country.  If at all, a less
stringent requirement of locus standi only needs to be shown to differentiate a
justiciable case of this type from the pure or mere opinion that the courts cannot
render.

Necessarily, too, a matter is ripe for adjudication if the assailed law or rule is already in
effect. The traditional rules on hierarchy of courts and transcendental importance, far
from being grounds for the dismissal of the petition raising the question of
unconstitutionality, may be reduced to rules on the level of court that should handle the
controversy, as directed by the Supreme Court.

Thus, when grave abuse of discretion amounting to a clear constitutional violation is

alleged and preliminarily shown, the Supreme Court is duty-bound to take cognizance of
the case, or at least to remand it to the appropriate lower court, based on its
consideration of the urgency, importance or evidentiary requirements of the case.

B. The three types of Adjudicative Judicial Powers.

In sum, judicial power, as now provided under the 1987 Constitution, involves three
types of controversies, namely:
(1) the traditional justiciable cases involving actual disputes and controversies based
purely on demandable and enforceable rights;

(2) the traditional justiciable cases as understood in (1), but additionally

involving jurisdictional and constitutional issues;

(3) pure constitutional disputes attended by grave abuse of discretion in the process

involved or in their result/s.

The first two types are already covered by the Rules of Court that, as recognized by
Section 5, are already in place, subject to the amendments that the Supreme Court may
promulgate.

The third type may inferentially be covered by the current provisions of the Rules of

Court, specifically by the rules on certiorari, prohibition and mandamus but, strictly
speaking, requires special rules that the current Rules of Court do not provide since the
third type does not involve disputes arising as traditionally justiciable cases. Most
importantly, the third type does not involve judicial or quasi-judicial exercise of
adjudicative power that the Supreme Court has traditionally exercised over lower
tribunals[7] to ensure that they stay within the confines of their adjudicative jurisdiction.

In the petitions now before us, these new realities on judicial power necessarily must be
considered as the petitions allege actions by the legislature and by the executive that lie
outside the contemplation of the Constitution. Specifically, they involve the
constitutionally infirm provisions of the RH Law passed by Congress and of the IRR of the
law that the executive promulgated through the Department of Health.

To be sure, the absence of specifically applicable rules cannot be a judicial excuse for
simply bodily lifting the rules for the traditional justiciable cases which the present cases
are not.  In fact, the Court should not even be heard to give an excuse as it is not
undertaking a power that it may exercise at its discretion; the Court is discharging an
express duty imposed by the Constitution itself.

In providing for procedural parameters, the Court may not simply hark back to
jurisprudence before  the 1987 Constitution as they will not obviously apply, nor to
jurisprudence after the 1987 Constitution that failed to recognize the third type of
justiciable controversy for what it is.

Thus, in the present case, the Court must be guided strictly by the express constitutional
command.  If past jurisprudence will be made to apply at all, they should be closely read
and adjusted to the reality of the third or new type of judicial adjudicative power.
C. The Court is duty bound to resolve the present petitions, not simply dismiss them. 

The consolidated petitions before the Court raise several constitutional

challenges against the RH Law, ranging from violations of the right to life of the unborn
(and, concomitantly, of the constitutional prohibition against abortion); violations of the
freedom of religion and of speech; violations of the rights of parents and protected
familial interests; down to the mostly benign allegations of violation of natural law.

An important and insightful approach is the petitioners’ attack on the RH law by

considering it as a population control measure that is beyond the power of the
government to carry out.  The respondents parry this attack by arguing that whatever
impact the RH law would have on the population would only be incidental, as the main
target of the law is to recognize and enhance the reproductive health rights of women. I
agree with the ponencia’s analysis of what the RH Law really is, and adopt this analysis
and conclusion for purposes of my own discussions in this Opinion.

This snapshot of the petitions strongly shows how the economic, social, cultural and
religious dimensions of the RH law cut a swath through the traditional legal and
constitutional realm of adjudication.  It is no surprise that it took the RH bill fourteen
years in Congress before it was enacted into law.

The sharp divide between the law’s proponents’ and opponents’ views and beliefs on
the propriety of the RH law, within and outside its legal and constitutional dimensions,
reflect the law’s encompassing impact: its implementation could, quite possibly, change
the face of Philippine society as we know it today.  In fact, in this Separate Opinion, I add
my own nagging concerns and observations although I know that these may go into the
wisdom of the law and are not appropriate for adjudication. I do this, however, in the
name of judicial license that should allow me, as a citizen, to express my own personal
observations on the dispute at hand.

Indeed, if the RH law seeks to bring about strong, socio-political and economic changes
even at the price of our historical identity, culture and traditions, then so be it, but the
affected public should know the impact of the issues that soon enough will confront
the nation.  It is important, too, that changes should not come at the expense of the
provisions of the Constitution – the only document that holds the nation together
“during times of social disquietude or political excitement,” as in the present case. This
should not be lost on us, as a Court, and should be a primary consideration in our
present task.

At the core of the petitions is the RH law’s alleged violation of the right to life of the
unborn.  I view the unborn’s right to life within the much broader context of Article II,
Section 12 of the 1987 Constitution recognizing the sanctity and autonomy of familial
relations and the natural and primary parental right in child-rearing, on the one hand,
and Article XV, Sections 1 and 3, recognizing the key role of the family, on the other.

These constitutional provisions serve as the compass guiding this Opinion and should in
fact serve as well for the Court’s own decision-making. Even those in the political
departments of government should pay them heed, separately from the political and
economic considerations that, from the terms of the RH law and its IRR, obviously
served as the political departments’ driving force.

Under our constitutional regime, the judicial department is the only organ of
government tasked to guard and enforce the boundaries and limitations that the people
had put in place in governing themselves.  This constitutional duty of the Court has
been expanded by the additional power of judicial review under the 1987 Constitution
to “determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.”

These are awesome powers carrying deep and far-ranging duties that we can only
discharge while fully aware of their accompanying responsibilities and pre-ordained
limits.  The present Court, I am sure, is fully aware of the extent of these duties and the
limitations, particularly of the rule that we cannot set new polices nor seek to
implement current ones as these involve roles that are not constitutionally ours to
undertake.

I am aware, too, that the RH Law now before us carries multi-dimensional repercussion,
not all of them within the legal and constitutional realms. These realities, however,
should not leave us timid in undertaking our tasks; for as long as we act within the
confines of our constitutionally-defined roles, we cannot go wrong.

A sure measure to best ensure proper action is to consider the petitions under the third
type of judicial adjudications power (defined above) that we first consciously utilize
under the present Constitution.  In this way, we give full respect to the separation of
powers; we step in only when the legislative and the executive step out of the bounds
defined for them by the Constitution.

For all these reasons, I join the ponencia’s result in its ruling that a controversy exists
appropriate for this Court’s initial consideration of the presence of grave abuse of
discretion, and consequent adjudication if the legislative and executive actions can be so
characterized.

II. Substantive Discussions 

A. The RH Law does not fully protect the right to life of the unborn child. 

a. Overview 

The 1987 Constitution has implicitly recognized the right to life of the unborn child
under its Section 12 when it gave the mandate, under the Section’s second sentence, to
protect the unborn life from its conception, equally with the life of mother.

I agree with the ponencia’s conclusion that under Section 12, the conception that the
Constitution expressly speaks of, occurs upon fertilizations of the ovum. Thus, the RH
law cannot be faulted in its definition of an abortifacient to be any drug or device that
kills or destroys the fertilized ovum or prevents its implantation in the uterus.
I slightly differ, however, from the way the ponencia arrived at its conclusion. To me,
the Constitution never raised the question of “when life begins”;[8] in fact, this is a
question that the framers of the Constitution sensibly avoided by simply adopting the
formulation “the life of the unborn from conception.” Interestingly, they even dropped
the term “moment of conception” since this precise moment cannot be determined
with certainty. The answer the framers decided upon (reinforced by undisputed medical
authorities) and which they hope future constitutional leaders and decision-makers will
grasp and respect is that once the sperm cell and the egg cell unite (resulting in the
combination of their genetic materials to form the fertilized egg or the zygote),[9] the
protection intended for the unborn should be triggered with full force. I write this
Opinion with full respect for this hope.

Thus, I agree with the ponencia that the RH law protects and promotes the right to life
of the unborn by its continued prohibition on abortion and distribution of
abortifacients.  I do recognize, however, that while the RH law generally protects and
promotes the unborn’s right to life, its Section 9 and its IRR fail in their fidelity to the
Constitution and to the very terms of the RH Law itself. For one, it fails to adopt the
principle of double effect under Section 12, Article II of the 1987 Constitution, as more
fully discussed below.

For these reasons, I cannot wholly concur that the RH law and its IRR, as they came to
this Court, were fully protective of the right to life of the unborn. In fact, the Court
should lay down guidelines, culled from a constitutionally-valid RH Law, of what the
government can actually procure and distribute under the RH law, consistent with its
authority under this law and Section 12, Article II of the Constitution.

i.  The primacy of life in the Philippine context 

The primacy of life from its earliest inception is a constitutional ideal unique to the 1987
Philippine Constitution. While our system of government of tripartite allocation of
powers (Articles VI to VIII), the concept of our Bill of Rights (Article III) and even the
traditional concept of judicial review (Section 1, Article VIII) may have been of American
origin, the idea of life itself as a fundamental constitutional value from its earliest
inception carries deep roots in the Philippine legal system.

The idea of life as a fundamental constitutional value from its earliest inception is not of
recent vintage although our previous constitutions did not have a provision equivalent
to the present Section 12, Article II.  Our legal history shows that abortion laws have
been in existence even during the Spanish regime when the Spanish Penal Code was
made applicable in the Philippines. When the Revised Penal Code was enacted in 1930,
the life of the unborn was also considered by suspending the execution of the death
sentence[10] on a pregnant woman. Under the New Civil Code of 1950, an unborn child is
granted presumptive personality from the time of its conception for civil purposes that
are favorable to it, although subject to the condition that it be born later.[11] To a certain
extent, this presumptive personality is already recognized under our penal laws. Under
Title I (Crimes Against Persons), Chapter 8 (Destruction of Life) of the Revised Penal
Code, the killing of viable, and even non-viable, fetuses may result in criminal liability.[12]

The continued efficacy of these statutory provisions evidences our society’s high regard
for the life of the unborn; thus, our present Constitution allows us to disregard it only
for the equally paramount necessity of saving the life of the unborn’s mother. It also
reflects not only our society’s recognition of and respect for the life of the unborn as a
Filipino ideal to be pursued under the 1987 Philippine Constitution, but of the country’s
own cultural values as a people.[13]

That this same respect is now expressly  provided under the 1987 Constitution is not so
much for the purpose of creating a right, but for the purpose of strengthening the
protection we extend to the unborn life against varied external threats to it.[14] It would
indeed be very ironic if the threat would come from our own government via the
abortifacients it hopes to distribute under the RH Law’s IRR.

b.  The 1987 Constitution

i. The status of the unborn under the 1987 Constitution

Although the framers of the Constitution expressly recognized the unborn’s right to life
from conception, they did not intend to give the unborn the status of a person under
the law.

Instead, the framers distinguished between the unborn’s right to life and the rights
resulting from the acquisition of legal personality upon birth in accordance with law.
Unlike the rights emanating from personhood, the right to life granted to the unborn is
in itself complete from conception, unqualified by any condition.

Although Section 12, Article II of the Constitution does not consider the unborn a
person, its terms reflect the framers’ clear intent to convey an utmost respect for
human life[15] that is not merely co-extensive with civil personality.[16] This intent requires
the extension of State protection to the life of the unborn from conception.  To be
precise, Section 12, Article II of the 1987 Constitution provides:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.

ii. The constitutional meaning of conception and to whom is this right to life extended

Unlike the  ponencia, I take the view that the question of when the life of the unborn
begins cannot strictly be answered with reference to time, i.e., the exact time the sperm
cell fertilized the egg cell.  But other than this uncertainty, the germinal stage[17] of
prenatal development[18] that transpires (after the union of the sperm cell and the egg
cell and the combination of their genetic material materialized to form the fertilized egg
or the zygote) is not debatable.

Upon fertilization, a complex sequence of events is initiated by the zygote to establish

the molecular conditions required for continued embryonic development. The behavior
of the zygote at this point is radically unlike that of either sperm or egg separately; it
exhibits signs of independent life characteristic of a human organism.[19]
Since the constitutional intent is to protect the life of the unborn, and the fertilized egg
(or the zygote) already exhibits signs and characteristics of life, then this fertilized egg is
already entitled to constitutional protection. I say this even if this fertilized egg may not
always naturally develop into a baby or a person.

I submit that for purposes of constitutional interpretation, every doubt should be

resolved in favor of life, as this is the rule of life, anywhere, everywhere; any doubt
should be resolved in favor of its protection following a deeper law that came before
all of us – the law commanding the preservation of the human specie. This must have
been the subconscious reason why even those who voted against the inclusion of the
second sentence of Section 12 in Article II of the Constitution conceded that a fertilized
ovum - the word originally used prior to its substitution by the word “unborn” - is
possessed of human life although they disagreed that a right to life itself should be
extended to it in the Constitution.[20]

It is in these lights that I dispute the Solicitor General’s argument that Congress’
determination (that contraceptives are not abortifacients) is entitled to the highest
respect from this Court since it was arrived at after receiving, over the years, evidence,
expert testimonies and position papers on the distinction between contraceptives and
abortifacients.

The Solicitor General argues that even assuming medical uncertainty on the
mechanisms of contraceptives and Intrauterine Devises in view of the contrary opinions
of other medical experts, this uncertainty does not prevent Congress from passing the
RH law because legislative options “in areas fraught with medical and scientific
uncertainties” must be “especially broad” and calls for judicial deference until an actual
case exists.

I cannot agree with the implied assertion that Congress’ determination that
contraceptives are not abortifacients is binding on the Court.

First, the nature of a particular contraceptive to be distributed by the government under

the RH law still has to be determined by the FDA and any advance recognition by
Congress of its abortifacient or non-abortifacient character would be premature.

Second, as will be discussed shortly, the statutory meaning of “abortifacient,” on which

the constitutional acceptability of a contraceptive depends, must depend in the first
place on the extent of the prohibition defined in the Constitution, not as defined by
Congress.[21]

Third, and more importantly, while US case law has established Congress’ broad
discretion in areas where medical uncertainty exists, none of these cases[22] involved a
challenge on congressional discretion and its collision with a specific constitutional
provision protecting the life of the unborn from conception. This aspect of the present
cases uniquely distinguishes them from the cases cited by the respondents. In the same
vein, the specific provisions unique to the 1987 Constitution limit the applicability of
parallel US jurisprudence in resolving issues through solutions consistent with our own
“aspirations and ideals” as a nation and our own tradition and cultural identity as a
people.
Fourth and last, this Court cannot be deferential to any official, institution or entity, in
the discharge of the Court’s duty to interpret the Constitution, most specially when the
existence of the most important physical and spiritual being on earth – humankind – is
at stake.  Let it not be said hereafter that this Court did not exert its all in this task.
When –  God forbid! – fetuses begin dying because abortifacients have been
improvidently distributed by government, let not the blame be lain at the door of this
Court.

iii. Section 12, Article II of the 1987

Constitution as a self-executing provision

The respondents argue that the recognition of a right under the Constitution does not
automatically bestow a right enforceable through adjudication.  Thus, they claim that
Section 12, Article II of the 1987 Constitution is not a self-executing provision; while this
Section recognizes the right to life of the unborn child, it leaves to Congress the
discretion on how it is to be implemented. The RH law actually embodies the exercise of
Congress’ prerogative in this area when it prohibited abortion and access to
abortifacients.

I submit that the mandate to equally protect the life of the mother and the life of the
unborn child from conception under Section 12, Article II of the Constitution is self-
executing  to prevent and prohibit the state from enacting legislation that threatens
the right to life of the unborn child.

To my mind, Section 12, Article II should not be read narrowly as a mere policy
declaration lest the actual intent of the provision be effectively negated.  While it is
indeed a directive to the State to equally protect the life of the mother and the unborn
child, this command cannot be accomplished without the corollary and
indirect mandate to the State to inhibit itself from enacting programs that contradict
protection for the life of the unborn.

Read closely, the second paragraph of Section 12, Article II contains two mandates for
the State to comply with:

First, it contains a positive command for the State to enact legislation that, in line with
the broader context of protecting and strengthening the Filipino family, recognizes and
protects equally the life of the unborn child and the mother. It is within this context that
Congress enacted the RH Law’s provisions,[23] as well as prior laws[24] that provide
healthcare measures for the mother and her child during and after pregnancy.

Second, Section 12, Article II provides a negative command against the State to refrain
from implementing programs that threaten the life of the unborn child or that of the
mother. This is a constitutional directive to the Executive Department.

By commanding the State to equally protect the life of the unborn child and the life of
the mother, the Constitution not only recognizes these rights, but provides a minimum
level of protection in the case of the unborn child. In effect, the Constitution prohibits
the State from implementing programs that are contrary to its avowed policies; in the
case of the unborn child, the State cannot go lower than the minimum level of
protection demanded by the Constitution.

In concrete terms, the State cannot, in the guise of enacting social welfare
legislation, threaten the life of the unborn child after conception. The State recognizes
the right to life of the unborn child from conception, and this should not be imperiled by
the State itself in the course of reproductive health programs that promote and provide
contraceptives with abortifacient properties.  In more specific terms under the
circumstances of this case, the State cannot, through the legislature, pass laws
seemingly paying respect and rendering obedience to the Constitutional mandate while,
through the executive, promulgating Implementing Rules and Regulations that deviously
circumvent the Constitution and the law.

To recapitulate, the State, through Congress, exercises full authority in formulating

programs that reflect the Constitution’s policy directive to equally protect the life of the
mother and the unborn child and strengthen the Filipino family while the Executive
carries the role of implementing these programs and polices.  This discretion, however,
is limited by the flipside of Section 12, Article II’s directive – i.e., these programs cannot
contradict the equal protection granted to the life of the unborn child from conception
and the life of the mother.

I now proceed to my reading and appreciation of whether the right to protection, both
of the mother and the unborn, are fully respected under the RH law.

At the outset, I note that both the petitioners and the respondents agree that Section
12, Article II of the 1987 Constitution prohibits abortion in the Philippines. This point of
agreement not only strengthens my argument regarding the self-executing nature of the
negative command implicit in the provision, but also sets the stage for the point of
constitutional query in the present case.

To me, the question in the present case involves the scope of the level of protection
that Section 12, Article II recognizes for the unborn child: to what extent does Section
12, Article II of the 1987 Constitution protect the unborn’s right to life? And does the RH
Law comply with the protection contemplated under this constitutional provision?

According to the OSG, the RH law does not violate the right to life provision under the
Constitution because the law continues to prohibit abortion and excludes abortifacients
from the provision of access to modern family planning products and device. By anti-
abortion, the public respondents meant preventing the Supreme Court from creating a
Roe v. Wade rule – a rule that granted women the right to terminate pregnancy under
the trimestral rule.

c. Section 12, Article II of the 1987 Constitution and Roe v. Wade 

I submit that the scope and level of protection that Section 12, Article II of the 1987
Constitution is deeper and more meaningful than the prohibition of abortion within the
meaning of Roe v. Wade.

In the landmark case of Roe v. Wade, a Texas statute made it a crime to procure or
attempt an abortion except when necessary to save the life of the mother. After
discussing abortion from a historical perspective, the US Supreme Court noted the three
reasons behind the enactment of criminal abortion laws in the different states in the
United States, viz: first, the law sought to discourage illicit sexual conduct – a reason
that has not been taken seriously; second, since the medical procedure
involved was  then hazardous to the woman, the law seeks to restrain her from
submitting to a procedure that placed her life in serious jeopardy; third, the law
advances the State's interest in protecting prenatal life[25] - a reason that is disputed
because of the absence of legislative history that supports such interest. The Court said
that “it is with these interests, and the weight to be attached to them, that this case is
concerned.” Unhesitatingly, the US Supreme Court struck down the law as
unconstitutional and ruled that the right to privacy extends to a pregnant woman’s
decision whether to terminate her pregnancy.[26] It observed:

This right of privacy, xxx is broad enough to encompass a woman's decision whether or
not to terminate her pregnancy. The detriment that the State would impose upon the
pregnant woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity, or
additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child
care. There is also the distress, for all concerned, associated with the unwanted child,
and there is the problem of bringing a child into a family already unable, psychologically
and otherwise, to care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All these are factors the
woman and her responsible physician necessarily will consider in consultation.

Among the cases that Roe cited in support of its ruling, anchored on the right to privacy,
are the cases of Griswold v. Connecticut[27] and Eisenstadt v. Baird.[28]  In Griswold, the
Court invalidated a Connecticut law that made it a crime to use and abet the use of
contraceptives for violating a married couples’ right to privacy.  In Eisenstadt, the Court
extended the protection of the right to privacy even to unmarried individuals by
invalidating a Massachusetts law that penalized anyone who distributed contraceptives
except if done by a physician to married couples.[29]

While Roe recognized the state’s legitimate interest in protecting the pregnant woman's

health and the potentiality of human life, it considered the pregnant woman’s decision
to terminate her pregnancy prior to the point of fetal viability (under a trimestral
framework[30]) as a liberty interest that should prevail over the state interest.

Apart from the context in which the U.S. decision is written, a reading of the second
sentence of Section 12, Article II, in light of the framers’ intent in incorporating it in the
Constitution, reveals more distinctions from Roe than what the public respondents
claim.

The framers did not only intend to prevent the Supreme Court from having a Philippine
equivalent of a Roe v. Wade  decision,[31] they also unequivocally intended to deny
Congress the power to determine that only at a certain stage of prenatal development
can the constitutional protection intended for the life unborn be triggered.[32]  In short,
the clear intent of the Framers was to prevent both Congress and  the Supreme
Court from making abortion possible.
Indeed, in discussing the third reason for the enactment of a criminal abortion
law, Roe avoided any reliance on the theory that life begins at conception, much less on
the principle that accompanies the theory that there must be a protected right to life at
that stage.  Instead the U.S. Supreme Court merely deferred to the State’s legitimate
interest in potential life. In the 1987 Philippine Constitution, by inserting the second
sentence of Section 12, Article II, the framers sought to make an express rejection of this
view in Roe.

Thus, while this Court or Congress cannot conclusively answer the question of “when life
begins” as in Roe, Philippine constitutional law rejects the right to privacy as applied in
Roe by granting a right to life to the unborn (even as a fertilized egg or zygote) instead of
gratuitously assuming that the State simply has an interest in a potential life that would
be subject to a balancing of interest test other than the interest that the Constitution
expressly recognizes.

Interestingly, in Carey v. Population Services, Int’l.,[33] in striking down a New York law
criminalizing the sale, distribution[34] and advertisement of nonprescription
contraceptives, the US Supreme Court clarified that they so rule “not because there is
an independent fundamental ‘right of access to contraceptives,’ but because such
access is essential to the exercise of the constitutionally protected right of decision in
matters of childbearing that is the underlying foundation of the holdings in Griswold,
Eisenstadt v. Baird, and Roe v. Wade.”  Accordingly, the State cannot pass a law
impeding its distribution on pain of prosecution. No such law is involved in the present
case.

In Planned Parenthood v. Casey,[35] the US Supreme Court reaffirmed the “central

holding” in Roe v. Wade, among others, that the State has legitimate interests from the
outset of the pregnancy in protecting the health of the woman and the life of the fetus
that may become a child.[36]  In the Philippine jurisdiction, these legitimate interests rest
on a higher and stronger ground not only because they are commanded by our
Constitution but because these legitimate interests were made to extend to the life of
the unborn from conception.  The mandatory command of the Constitution to protect
the life of the unborn by itself limits the power of Congress in enacting reproductive
health laws, particularly on subsidizing contraceptives.

d.  Abortion, abortifacients and the RH Law 

As I earlier noted, both petitioners and the respondents agree that Section 12, Article II
of the 1987 Constitution prohibits abortion. As to what abortion is and when pregnancy
is established, the Medical Experts’ Declaration cited by the respondents themselves is
instructive:

1. xxx
2. xxx
3. All contraceptives, including hormonal contraceptives and IUDs, have been
demonstrated by laboratory and clinical studies, to act primarily prior to
fertilization. Hormonal contraceptives prevent ovulation and make cervical
mucus impenetrable to sperm. Medicated IUDs act like hormonal contraceptives.
Copper T IUDs incapacitate sperm and prevent fertilization.
 4. The thickening or thinning of the endometrium (inner lining of the uterus)
associated with the use of hormonal contraceptives has not been demonstrated
to exert contraceptive action, i.e. if ovulation happens and there is
fertilization, the developing fertilized egg (blastocyst) will implant and result in
a pregnancy (contraceptive failure). In fact, blastocysts have been shown to
implant in inhospitable sites without an endometrium, such as in Fallopian tubes.
5. Pregnancy can be detected and established using currently available laboratory
and clinical tests – e.g. blood and urine levels of HCG (Human Chorionic
Gonadotrophin) and ultrasound – only after implantation of the
blastocyst. While there are efforts to study chemical factors associated with
fertilization, currently there is no test establishing if and when it occurs.
6. Abortion is the termination of an established pregnancy before fetal viability
(the fetus’ ability to exist independently of the mother). Aside from the 50% of
zygotes that are naturally unable to implant, an additional wastage of about 20%
of all fertilized eggs occurs due to spontaneous abortions (miscarriages).
7. Abortifacient drugs have different chemical properties and actions from
contraceptives. Abortifacients terminate an established pregnancy, while
contraceptives prevent pregnancy by preventing fertilization.

8. xxx

Based on paragraph number 6 of the Medical Experts’ Declaration, abortion is the

termination of established pregnancy and that abortifacients, logically, terminate this
pregnancy. Under paragraph number 5, pregnancy is established only after the
implantation of the blastocysts or the fertilized egg. From this medical viewpoint, it is
clear that prior to implantation, it is premature to talk about abortion and abortifacient
as there is nothing yet to abort.

If the constitutional framers simply intended to adopt this medical viewpoint in

crafting Section 12, Article II, there would have been no real need to insert the phrase
“from conception.” This should be obvious to a discerning reader. Since conception
was equated with fertilization, as borne out by Records of the Constitutional
Commission, a fertilized egg or zygote, even without being implanted in the uterus, is
therefore already entitled to constitutional protection from the State.

e. The RH law’s definition of abortifacient

textually complies with Section 12,
Article II, 1987 Constitution; Section 9
negates this conclusion.

In this regard, I find that despite the recognition of abortion only at a late stage from
the strict medical viewpoint, the RH law’s implied definition of abortion is broad enough
to extend the prohibition against abortion to cover the fertilized egg or the zygote.
Consistent with the constitutional protection of a fertilized egg or zygote, the RH Law
defines an abortifacient as:

any drug or device that induces abortion or the destruction of a fetus inside the
mother’s womb or the prevention of the fertilized ovum to reach and be implanted in
the mother’s womb upon determination of the FDA.
By considering a drug or device that prevents the fertilized ovum from reaching and
implanting in the mother’s womb as an abortifacient, the law protects the unborn at the
earliest stage of its pre-natal development.

Thus, I agree with the ponencia that the RH law’s definition of abortifacient is

constitutional. The law, however, still leaves a nagging and contentious question
relating to the provision of its Section 9, which reads:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. –
The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family
planning products and supplies. The Philippine National Drug Formulary System (PNDFS)
shall be observed in selecting drugs including family planning supplies that will be
included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available
on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals: Provided, further, That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent. [emphases ours]

Section 9 includes hormonal contraceptives, intrauterine devices and injectables

(collectively, contraceptives) among the family planning products and supplies in the
National Drug Formulary, and makes them part of the products and supplies included in
the regular purchase of all national hospitals. While the FDA still has to determine
whether a particular contraceptive is abortive in nature, the underscored portion
of paragraph 2 of Section 9 strongly indicates that abortifacients will be available for
procurement and distribution by the government. In short, the second paragraph of
Section 9 itself confirms that the contraceptives to be distributed by the government
are abortifacient-capable depending only on its “use.”[37]

That abortifacient-capable contraceptives will be procured and distributed by the

government (necessarily using State funds) under Section 9 of the RH law is confirmed
by the Implementing Rules and Regulations (IRR) of the RH law itself.

The IRR defines an abortifacient as “any drug or device that primarily induces abortion

or the destruction of a fetus inside the mother’s womb or the prevention of the
fertilized ovum to reach and be implanted in the mother’s womb upon determination of
the Food and Drug Administration.” It also defines a contraceptive as “any safe, legal,
effective, and scientifically proven modern family planning method, device, or health
product, whether natural or artificial, that prevents pregnancy but does
not primarily destroy a fertilized ovum or prevent a fertilized ovum from being
implanted in the mother’s womb.[38]

By these definitions, the RH law’s IRR has added a qualification to the definition of an
abortifacient that is not found in the law. Under the IRR of the RH law, a drug or device
is an abortifacient only if its primary mechanism - as opposed to secondary mechanism,
which the petitioners have strongly asserted - is abortive in nature. This added
qualification to the definition of an abortifacient is a strong argument in favor of the
petitioners that the contraceptives to be distributed by the state are abortifacient-
capable.

Thus, in one breath, Section 9 of the RH law allows the inclusion of non-abortifacients
only in the National Drug Formulary and in another breath allows the distribution of
abortifacients based solely on the FDA certification that these abortifacents should not
be used as such. To address this conflict, the ponencia submits that the FDA’s
certification in the last sentence of paragraph 1 of Section 9 should mean that the
contraceptives to be made available “cannot” – instead of “is not” - be used as
abortifacient, following the no-abortion principle under the Constitution.

To my mind, this inconsistency within the provision of Section 9, as reinforced by the RH

law’s IRR, should be addressed by construing it in relation with the entirety of the RH
law.

One of the guiding principles under the RH law is the primacy given to effective and
quality reproductive health care services to ensure maternal and child health.[39] 
Towards this end, the RH law allows properly trained and certified midwives and nurses
to administer “lifesaving drugs such as, but not limited to, oxytocin and magnesium
sulfate, in accordance with the guidelines set by the DOH, under emergency conditions
and when there are no physicians available.”[40]  Similarly, the RH law included in the
definition of Basic Emergency Obstetric and Newborn Care (BEMONC) the
administration of certain drugs as part of lifesaving services for emergency maternal and
newborn conditions/complications. These provisions are consistent with the State’s
commitment to reduce both maternal and infant mortality, and to ultimately save lives.
[41]

The “life-saving” thrust of the law is complemented by the RH law’s provisions that
continues to prohibit abortion and prohibits the procurement and distribution of
abortifacients. The RH law also limited the extent of the reproductive health rights it
grants by excluding from its coverage abortion and access to abortifacients.[42] More
specifically, it broadly defined abortifacients to include any drug or device that prevents
the fertilized ovum from reaching and implanting in the womb. Thus, the RH law
protects the fertilized ovum (zygote) consistent with Section 12, Article II of the 1987
Constitution.

Considering the “life-saving” thrust of the law, the procurement and distribution of
abortifacients allowed under Section 9 should be interpreted with this “life-saving”
thrust in mind. As an aid in understanding this approach, I quote respondent Senator
Cayetano’s explanation, cited by the public respondents:

Allow me to explain. A careless phrase like “no drug known to be an abortifacient will be
made available in the Philippines” sounds like a statement we could all support. But
what most of us do not understand is the fact that many life-saving drugs are made
available to an ailing mother to address her medical condition although there is a
possibility that they may be harmful to a pregnant mother and her fetus. Thus, we have
for instance, drugs for diseases of the heart, hypertension, seizures, ulcers and even
acne, all of which are to be taken only under doctors’ prescription and supervision
precisely because of their harmful effects.

Making a blanket statement banning all medicines classified as abortifacients would

put all these mothers and their children’s lives in greater danger. For decades, these
mothers have relied on these medicines to keep them alive. I would like to give another
example. A known abortifacient, misoprostol commonly known as cytotec, is one of the
drugs that can save a mother’s life. I am talking about a mother who just gave birth but
has internal hemorrhage and in danger of bleeding to death. Her child has been born.
Her child will live but she will die without this drug to stop her bleeding. Are we now to
ban the use of this drug? Are we now to say that because it could possibly be used as an
abortifacient, it could possibly be abused, this mother must now die despite giving birth
to a healthy baby?

Mr. President, we clearly need to make distinctions. These life saving drugs SHOULD

NOT BE USED on any circumstances for purposes of carrying out an abortion. But under
strict guidelines by the FDA, they can be used by a health practitioner to save a mother’s
life.

In short, the law allows the procurement of abortifacients under Section 9 only for the
equally compelling interest of the State to save the life of the mother on account of a
medical necessity.

f. The principle of double effect 

In situations where the life of the unborn and the life of the mother collide with each
other, the principle of double effect under Section 12, Article II must be applied. The
Sponsorship Speech of Constitutional Commissioner Villegas discussed the principle of
double effect, as follows:

What if a doctor has to choose between the life of the child and the life of the mother?
Will the doctor be guilty of murder if the life of the child is lost? The doctor is morally
obliged always to try to save both lives. However, he can act in favor of one when it is
medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life is not intentional
and, therefore, unavoidable. Hence, the doctor would not be guilty of abortion or
murder.

I am sure Commissioner Nolledo can give the jurisprudence on this case, the application
of the moral principle called the principle of double effect. In a medical operation
performed on the mother, the indirect sacrifice of the child's life is not murder because
there is no direct intention to kill the child. The direct intention is to operate on the
mother and, therefore, there is no dilemma. And let me say that medical science has
progressed so much that those situations are very few and far between. If we can
produce babies in test tubes I can assure you that those so-called dilemma situations
are very rare, and if they should occur there is a moral principle, the principle of double
effect, that can be applied.

What would you say are the solutions to these hard cases? The most radical solution to
these hard cases would be a caring and loving society that would provide services to
support both the woman and the child physically and psychologically. This is the pro-life
solution. The abortion solution, on the other hand, not only kills the fetus but also kills
any care and love that society could have offered the aggrieved mother.

Implicit in all these arguments is the petition for the Constitution, the arguments against
Section 9, requiring the State to equally protect the life of the mother and the life of the
unborn from the moment of conception. These arguments want the Constitution to be
open to the possibility of legalized abortion. The arguments have been put on record for
the reference of future legislation and jurisprudence. xxx

I wholly agree with this position. Thus, to me, the general rule is that both the life of the
unborn and the life of the mother should be protected.  However, in case of exceptional
conflict situations, the life of one may be preferred over the life of the other where it
becomes medically necessary to do so. The principle of double effect recognizes that in
some instances, the use or administration of certain drugs that are abortifacient-capable
are necessary in order to save the life of the mother.  The use in administration of these
drugs in these instances is and should be allowed by Section 12, Article II of the
Constitution since the policy is equal protection.

Justice Leonen argues in this regard that the principle of double effect is a Christian
principle that may or may not be adopted by all of the medical community. He even
claims that there are some who recommended its abandonment.

I submit that the religious roots of a principle adopted by the Constitution, is not a valid
ground to ignore the principle altogether. While some parts of the Constitution were of
foreign origin, some parts – including the entire text of Section 12, Article II – were
uniquely Filipino, intended to be reflective of our own Filipino culture and tradition. I
particularly refer to the primacy of life in our hierarchy of values. Not surprisingly, the
public respondents do not dispute this principle of double effect and even allowed
abortifacient to be used only for the purpose of equally safeguarding the life of the
mother.  The representatives of the people themselves recognized the primacy of life
and the principle of double effect in Section 12, Article II when it gave a broad definition
of an abortifacient to extend the protection to life to the fertilized ovum (zygote). These
reasons effectively refute Justice Leone’s positions.

k.  The role of the DOH

As the lead agency in the implementation of the RH law, the Department of Health
(DOH) is tasked to “[e]nsure people’s access to medically safe, non-abortifacient, legal,
quality and affordable reproductive health goods and services[.]”[43] This is consistent
with the RH law’s policy which “guarantees universal access [only] to medically-safe
[and] non-abortifacient” contraceptives. The law also provides that these contraceptives
“do not prevent the implantation of a fertilized ovum as determined by the” FDA.[44]

Accordingly, DOH is tasked to procure and distribute to local government units (LGUs)
family planning supplies for the whole country and to monitor their usage.[45] Once
delivered to the LGUs, the responsible health officials “shall assume responsibility for
the supplies” and ensure their distribution in accordance with DOH guidelines.[46]  For
this purpose, a regional officer appointed by the DOH shall oversee the supply chain
management of reproductive health supplies and/or health products in his or her
respective area.[47]  The RH law also authorizes LGUs to implement its own procurement,
distribution and monitoring program “consistent with the overall provisions of this Act
and the guidelines of the DOH.”[48]

i. Guidelines

Under the RH law, the Food and Drug Administration (FDA) is tasked to determine
whether a drug or device is abortifacient in nature. Once it determines that it is non-
abortifacient, then the DOH may validly procure them.

However, if the FDA determines that the drug or device is abortifacient then as a rule,
the DOH may not validly procure, much less distribute, them.  Consistent with the
primacy of life under Section 12, Article II of the 1987 Constitution and the RH law’s
provisions prohibiting abortion and the distribution of abortifacients, the government
cannot procure and distribute these abortifacients. By this, I refer to the definition of an
abortifacient under the RH law, i.e., without qualification on whether the nature of its
action (to induce abortion, or the destruction of a fetus inside the mother’s womb or
the prevention of the fertilized ovum to reach and be implanted in the mother’s womb)
is primary or secondary.

As a matter of exception, the government should be able to procure and distribute

abortifacients or drugs with abortifacient properties but solely for the purpose of saving
the life of the mother. Specifically, the procurement and distribution of these
abortifacients may be allowed only in emergency cases and should thus be made under
medical supervision.[49] The IRR of the RH law defines an “emergency” as a condition or
state of a patient wherein based on the objective findings of a prudent medical officer
on duty for the day there is immediate danger and where delay in initial support and
treatment may cause loss of life or cause permanent disability to the patient.[50]

In short, after the FDA’s prior determination that the drug or device is abortifacient-
capable,[51] the FDA will have to issue a certification that these drugs or devices are not
to be used as abortifacients whether under the first or second paragraphs of Section 9.
The DOH may (i) procure these contraceptives strictly following its (DOH) own guidelines
that list the drugs or devices that are essentially used for life-saving purposes; if the
drug certified by the FDA to be abortifacient is not essentially used for life saving
purpose, then the DOH may not procure them; and (ii) distribute these based on DOH
guidelines that limit its distribution strictly for life-saving, medically-supervised and,
therefore, non-abortive purpose.

I note in this regard that under the second paragraph of Section 9, the procurement
and distribution of emergency contraceptive pills, postcoital pills, abortifacients is
subject to a similar condition that it “will not be used” for abortifacient purpose. This
condition is also a recognition of the abortifacient-capable nature of “emergency
contraceptive pills.” Given this nature, their procurement and distribution must likewise
involve emergency situation. However, the IRR’s own definition of an “emergency
contraceptive pills” does not contemplate an emergency situation that permits its
procurement and distribution.
l) Emergency Contraceptive Pills, also known as Postcoital Pills refers to methods of
contraception that can be used to prevent pregnancy in the first few days after
intercourse intended for emergency use following unprotected intercourse,
contraceptive failure or misuse,x x x[52]

The “emergency” situation contemplated under the definition of an “emergency

contraceptive pills” as quoted above is not the “emergency” situation under the
principle of double effect in Section 12, Article II of the 1987 Constitution or the
emergency as defined in the same IRR of the RH law.  Should the FDA find, pursuant to
its mandate under the RH law, that an emergency contraceptive pill or post-coital pill is
abortifacient or is abortifacient-capable, then their distribution and procurement should
follow the guideline under the exception.

If an abortifacient-capable drug essentially serves a purpose other than saving the life of
the mother – and is, therefore, not included in the DOH guidelines that list what drugs
or device are essentially used for life-saving purposes – then the general rule
applies: the government may not procure and distribute it.

Lastly, under Section 7.03 of the IRR of the RH law drugs, medicines, and health
products for reproductive health services that are already included in the Essential Drug
List as of the effectivity of the IRR shall remain in the EDL, pending FDA certification
that these are not to be used as abortifacients.

Since these are contraceptives that are already registered with the FDA[53] under RA No.
3720 as amended by RA No. 9711,[54] these contraceptives must undergo evaluation by
the FDA under the provisions of the RH law to determine whether these are
abortifacients - as defined by law and not by the IRR.  In either case, the general rule
and the exception I have laid down above should apply.  On the one hand, if these
products are non-abortifacients as defined under the RH law, then the government may
procure and distribute them; on the other hand, if these products are abortifacients or
are abortifacient-capable, the FDA may issue its certification under Section 7.03 of the
IRR if the product is essentially used for life-saving purposes.

If the DOH determines that the product is essentially used for life-saving or emergency
purposes, the DOH may (i) procure these contraceptives strictly following its (DOH) own
guidelines that list the drugs or devices that are essentially used for life-saving purposes;
and (ii) distribute these based on DOH guidelines that limit its distribution strictly for
life-saving, medically-supervised and, therefore, non-abortive purpose. If the product is
essentially for other therapeutic purpose, the FDA may not issue the certification under
Section 7.03 of the IRR since the product may not be procured and distributed by the
government in the first place.

B. Parental Rights

I also agree with the ponencia that an attack on Section 14 of the RH law is premature,

but for my own reasons and qualifications.

Section 14 of the RH Law mandates the provision of “age-and-development-appropriate

reproductive health education” in both the formal and non-formal education system in
the country, and for its integration in relevant subjects in the curriculum, thus:

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. – The State
shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trained teachers in formal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women’s rights and children’s rights; responsible teenage behavior; gender
and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents-
teachers-community associations, school officials and other interest groups. The
Department of Education (DepED) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.

According to the petitioners, the mandatory RH education in schools deprives parents of

their natural and primary right to raise their children according to their religious beliefs,
and should thus be held unconstitutional.

The ponencia, while recognizing the primacy of parental rights under the 1987
Constitution, holds that it is premature to rule on the constitutionality of the mandatory
RH education program, as the Department of Education has yet to formulate the
curriculum implementing it. The Court is thus not in the position to speculate on its
contents and determine whether they adhere to the Constitution.

I agree with the ponencia’s observation that the lack of a curriculum renders the

petitioners’ allegations premature, and dispute Justice Reyes’s position that the issue of
Section 14’s constitutionality is ripe for adjudication and that based on this, we can
already rule with finality that Section 14 is constitutional.

We cannot, without first examining the actual contents of the curriculum and the
religious beliefs and personal convictions of the parents that it could affect, declare that
the mandatory RH education is consistent with the Constitution. In other words, we
cannot declare that the mandatory RH education program does not violate parental
rights when the curriculum that could possibly supplant it is not yet in existence. Given
the primacy of the natural and fundamental rights of parents to raise their children, we
should not pre-empt a constitutional challenge against its possible violation, especially
since the scope and coercive nature of the RH mandatory education program could
prevent the exercise of these rights.

Further, I am uneasy to join the ponencia’s conclusion that, at any rate, Section 14 is

constitutional. I express misgivings on the constitutionality of this provision, which does
not on its face provide for an opt-out clause for parents whose religious beliefs conflict
with the State’s program.

a.  Parental rights in the Filipino context 

The 1987 Constitution introduced an entire section on the Family that, in essence,
recognizes the Filipino family as the foundation of the nation and mandates the State to
strengthen its solidarity and actively promote its total development.

Corollary to the importance that the Constitution gives the Filipino family is the State’s
mandate to protect and strengthen it. It is not by coincidence that the Constitution, in
requiring the State to protect and strengthen the Filipino family, describes it as
a basic and autonomous social institution.

This is a recognition of and deference to the decisional privacy inherent in every family,
a recognition that is reflected and reinforced in other provisions of the Constitution:
Article II, Section 12 recognizes the “natural and primary right and duty of parents” in
rearing the youth; Article XV, Section 3 mandates the State to defend the “right of
spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood” and “the right of families or family associations to
participate in the planning and implementation of policies and programs that affect
them.”

These constitutional provisions reflect the Filipino ideals and aspirations which the
Constitution requires the government to promote and strengthen. Historically, these
provisions show “a strong tradition of parental concern for the nurture and upbringing
of their children”[55] that makes us, as a people, stand out from the rest of world’s
cultures and traditions.  We stand out for the way we, as a family, care for our young
and for the aged. To us, family ties extend from before the cradle and beyond the
grave.  I do hope this remains a tradition and can stand the tests of time and
governmental intervention.

The relationship created by and resulting from a family naturally extends to and involves
other personal decisions that relate to child rearing and education. Parents have the
natural right, as well as the moral and legal duty, to care for their children, see to their
proper upbringing and safeguard their best interest and welfare.[56] These array of
personal decisions are protected by the constitutional right to privacy to be free
from unwarranted governmental intrusion. Pursuant to this natural right and duty of
parents over the person of their minor children, parental authority and responsibility
include the caring for and rearing them for civic consciousness and efficiency and the
development of their moral, mental and physical character and well-being.[57]

b.  Parental rights and the state’s interest in the youth 

The Constitution provides that the family’s autonomy is not without limits since the
State similarly has a role and interest in protecting children rights and advancing their
welfare.

While parents are given a wide latitude of discretion and support in rearing their
children, their well-being is of course a subject within the State's constitutional power to
regulate.[58] Specifically, the Constitution tasked the State to promote and protect their
moral, spiritual, intellectual and social development, and to recognize and support their
vital role in nation-building.[59] In this undertaking, the State acts in its capacity as parens
patriae.
Concededly, the State – as parens patriae – has the right and duty to minimize the risk
of harm, arising from the acquisition of knowledge from polluted sources, to those who
are as yet unable to take care of themselves fully.

In other words, the family itself and the rights of parenthood are not completely beyond
regulation; parental freedom and authority in things affecting the child's welfare,
including, to some extent, matters of conscience and religious conviction are not totally
beyond State authority.[60] It is in this area that the parents’ right to raise their children
and the State’s interest in rearing the youth clash.

In our jurisdiction, the case of Ebralinag v. the Division Superintendent of Schools of

Cebu[61] presents the Court’s resolution of the conflict between the parents’ right to
raise their children according to their religious beliefs, and the State’s interest in
inculcating civic consciousness among the youth and teaching them the duties of
citizenship.

In Ebralinag, we annulled the expulsion orders issued by the respondent schools against
students who refused to attend the flag ceremony on the ground that it violates their
religious convictions. We said that while the State has the right and responsibility to
teach the youth the values of patriotism and nationalism, this interest is subject to a
“balancing process” when it intrudes into other fundamental rights such as those
specifically protected by the Free Exercise Clause, the constitutional right to education
and the unassailable interest of parents to guide the religious upbringing of their
children in accordance with the dictates of their conscience and their sincere religious
beliefs.[62]

While we conducted a ‘balancing process’ in Ebralinag, we have yet to formally

enunciate a doctrinal test regarding its operation. In the context of the present case, we
might ask when does a State program unlawfully intrude upon the parents’ right to raise
their children according to their own religious convictions? Stated differently, how far
can the State go in interfering with this right based on the State’s “demands” for
responsible parenthood?

Case law from the U.S., from where our Bill of Rights originated, has developed a body
of jurisprudence regarding the resolution of clashes between parental rights and the
State’s parens patriae interests.

A survey of US jurisprudence shows that the custody, care and nurture of the child,
including his preparation for civic obligations, reside first in the parents, and these
functions and freedoms are accorded recognition and respect by the State. In the words
of Pierce v. Society Sisters:[63]

The fundamental theory of liberty upon which all governments in this Union repose
excludes any general power of the State to standardize its children by forcing them to
accept instruction from public teachers only. The child is not the mere creature of the
State; those who nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations.

Thus, in Meyer v. Nebraska,[64] Pierce v. Society of Sisters[65] and Wisconsin v. Yoder,

[66]
 the US Supreme Court struck down as unconstitutional various laws regarding the
education of children in public schools. In these cases, the parents were compelled to
follow state directives under pain of sanction; all of the assailed statutes had penal
clauses for noncompliant parents and guardians. The State unlawfully intruded into the
parents’ natural right to raise their children because they were coerced into following a
mandatory governmental action, without any opting out or excusal system provided for
objecting parents.[67]

Indeed, several state courts in the US have upheld the validity of state-directed sex
education programs because it gives parents the option to excuse their children from
attending it.[68] The Supreme Court of Hawaii[69] and the Court of Appeals of California,
[70]
 for instance, have upheld similarly phrased laws mandating sex education in public
schools. They both noted that the sex education program in their states allows the
parents to first review the program’s contents, and excuse their children’s attendance
should they find the program objectionable. The Michigan Court of Appeals[71] also
upheld the validity of its State’s sex education program, as it was completely voluntary
and requires parental authorization. The Michigan law also permits parents to excuse
their children from attending the sex education program, and categorically provides that
unwilling parents would not be punished for opting out of the program.[72]

In these lights, a mandatory reproductive health education program in public schools

does not violate parental privacy if they allow parents to review and excuse their
children from attending the program, or if the State shows a compelling state interest
to override the parents’ choice and compel them to allow their children to attend the
program.

c.  The State has failed to show

any compelling state interest to
override parental rights in
reproductive health education

I disagree with Justice Reyes’s assertion that the mandatory reproductive health
education program has already passed the compelling state interest test used to
determine whether a governmental program may override familial privacy and the
parents’ rights to raise their children in accordance with their beliefs.

I submit that, for now, the government has not provided any sufficiently compelling
state interest to override parental rights; neither has it proven that the mandatory RH
education program has been narrowed down to the least intrusive means to achieve it.

I likewise disagree with Justice Reyes’s argument that the rise of teenage pregnancies in
the recent years, coupled with our ballooning population, is a compelling state interest
– it is, at most a reasonable state interest, but not one compelling enough to override
parental rights.

What constitutes compelling state interest is measured by the scale of rights and
powers arrayed in the Constitution and calibrated by history. It is akin to the paramount
interest of the State for which some individual liberties must give way, such as the
public interest in safeguarding health or maintaining medical standards, or in
maintaining access to information on matters of public concern.[73]  It essentially involves
a public right or interest that, because of its primacy, overrides individual rights, and
allows the former to take precedence over the latter.

The prevalence of teenage pregnancies, at most, constitutes a matter of public concern.

That its impact to society and to the teenage mother is important cannot be denied, but
that it is important enough to defeat privacy rights is another matter.

I take exception to the comparison between societal problems such as alcohol and drugs
abuse with teenage pregnancies. Indeed, alcohol and drugs are societal evils that beget
even more evils, such as increases in crime rates and familial discord. The same cannot
be said of teenage pregnancies. I do not believe that begetting a child at a young age
would have a direct correlation to crimes and the breaking up of families.

Neither can I agree that the consultations with parents and teachers associations prior
to the curriculum’s formulation make the mandatory RH education as the least intrusive
means to address increases in teenage pregnancies. Consultations are informative, at
least, and deliberative and suggestive, at most; they cannot, with certainty, immediately
guarantee that parents’ familial privacy rights would be respected.

Notable, too, is the all-encompassing penal clause that penalizes any violation of the RH
Law. On its face, this penal clause, together with the wide scope of the mandatory RH
education program, actually makes the program coercive for parents. It could be read as
a compulsion on parents, under pain of fine and imprisonment, to allow their children to
attend the RH education program. Even assuming that the penal clause will not apply to
refusing parents, the scope of the RH education program gives them very little choice.

To my mind, the Solicitor’s argument that the RH education program allows parents to
exercise their preferences because they can choose to send their children to private
schools is not sufficiently persuasive as it ignores the environment on which the
Philippine education system operates. This choice is superficial for many families, as
most of them rely on public schools for the education of their children.[74] For most
parents, sending their children to private schools is a luxury that only a few can afford.

d. The question of Section 14’s constitutional prematurity 

I do admit that some of the topics enumerated in the RH education program are, on
their face, not objectionable, and are within the State’s authority to include in the
curriculum of public school education. But at this point, without the specifics of what
would be taught under the RH education program, we cannot determine how it would
exactly affect parental rights and the right of parents to raise their children according to
their religious beliefs.

Too, we cannot determine whether the Department of Education will or will not provide
parents the right to review the contents of the curriculum and opt to excuse their
children from attending these subjects. This option allows the implementation of the RH
education program while respecting parental rights, and saves it from questions of
constitutionality.
In these lights, I agree with Justice Mendoza’s conclusion that the challenge to the
constitutionality of Section 14 of the RH Law is premature.

C. Disturbing observation and concerns: The effects on contraceptives on the national,

social, cultural and religious values

As I earlier mentioned, the implementation of the RH law cannot but leave lasting
imprints on Philippine society, some of them positive and some negative.  I do not here
question the wisdom of the law, as matters of wisdom and policy are outside judicial
realm.  I claim judicial license in this regard if I intrude into prohibited territory in the
course of expressing disturbing concerns that come to mind.

The Philippines to be sure, is not the first country to use contraceptives and the mixed
results from countries that have long travelled this road are, to my mind, not very
encouraging. One obvious discouraging effect of controlled population growth is on the
economy of some of these countries which now have to secure foreign labor to balance
their finances. This development has been a boon for a country like the Philippines with 
a fast growing population; we are enjoying now the benefits of our fast-growing 
population through the returns our migrating Filipino workers bring back to the
Philippines from their work in labor-starved countries. This has become possible
because host countries like Japan and the more economically advanced European
countries need workers to man their industries and supply their economies. Another
economic effect is on retirement systems that have been burdened by predominantly
aging populations. For this same reason, some countries even face impending economic
slowdown in the middle term[75] unless they can effectively remedy their manpower
shortage.

But more than the political and economic consequences, I believe that the RH Law’s
implementation could usher in societal and individual behaviors and norms vastly
different from the traditional. Already, some of our traditions are giving way, brought
about alone by advances in computerization and communication. Factoring in
contraceptives and birth control may immeasurably hasten the changes for the worse.

In the family front alone, the ideals expressed in our Constitution about the Filipino
family may soon just be unreachable ideals that we can only long for. Access to modern
methods of family planning, unless closely regulated, can shape individual preferences
and behavior, that, when aggregated, could lead to entirely different societal perception
on sex, marriage, family and parenthood.[76]

The effect of the RH law on parents’ capacity to influence children about reproductive
health could, in a couple of years, produce a generation with very different moral views
and beliefs from the parents and the adults of this generation, resulting in a possible
schism between the younger and elder members of the family. Their polarized views
could lead to the deterioration of the strong ties that bind the Filipino family.

Contraceptives and birth control devices, distributed even among the young because of
lack of stringent control, can lead to a generation of young Filipinos uncaring about the
morality of instant sex and irresponsible in their view about pregnancies and the
diseases that sexual promiscuity can bring. Even in the near term, this development can
affect views about marriage and the rearing of the young.

For those already married, contraceptives and birth control devices of course offer
greater opportunities for sex outside of marriage, both for the husband and the wife.
The effects of these outside opportunities on marriage may already be with us. Perhaps,
more than at any other time, we have a record number now of separated couples and
wrecked marriages, to the prejudice of the family and the children caught in between.

In hindsight, the 1987 Constitution’s painstaking efforts to include provisions on the

family, parenthood and marriage reflect our cultural identity as a Filipino people.[77] I do
not believe it to be disputable that the heart of the Filipino society is the family.
Congress, in introducing innovations to reproductive health might have tried to respect
this ideal but I have serious doubts and misgivings on whether we can succeed given the
deterioration and erosion in familial values already becoming evident in our society. I
hope that in this instance, history would prove me wrong.

D. Freedom of Expression of Health Practitioners and the RH Law     

I submit that Section 23 (a)(1) of the RH law, which penalizes healthcare providers who
“knowingly withhold information or restrict the dissemination thereof, and/or
intentionally provide incorrect information regarding programs and services on
reproductive health” is an unconstitutional subsequent punishment of speech.

Broken down to its elements, Section 23(a)(1)[78] of the RH law penalizes health care
providers who (1) knowingly withhold information about programs and services on
reproductive health; (2) knowingly restrict the dissemination of these programs and
services; or (3) intentionally provide incorrect information regarding them.

These prohibited acts are, by themselves, communicative and expressive, and thus
constitute speech. Intentionally providing incorrect information cannot be performed
without uttering, verbally or otherwise, the information that the RH Law deems to be
incorrect. The information that is illegal to withhold or restrict under Section 23 also
constitutes speech, as it is an expression of data and opinions regarding reproductive
health services and programs; thus, the prerogative to not utter these pieces of
information also constitutes speech.[79]

By penalizing these expressive acts, Section 23 imposes a subsequent punishment on

speech, which as a counterpart to the prohibition against prior restraint, is also
generally prohibited under the constitutional guarantee of freedom of expression.
Without an assurance that speech would not be subsequently penalized, people would
hesitate to speak for fear of its consequences; there would be no need for prior
restraints because the punishment itself would effectively serve as a chilling effect on
speech.[80]

While I am aware of the state’s interest in regulating the practice of medicine and other
health professions, including the communications made in the course of this practice, I
believe that Section 23(a)(1) of the RH Law has overreached the permissible coverage of
regulation on the speech of doctors and other health professionals.
Jurisprudence in the United States regarding the speech of medical practitioners has
drawn a distinction between speech in the course of their practice of medicine, and
speech in public.[81] When a doctor speaks to his patient, his speech may be subjected to
reasonable regulation by the state to ensure the accuracy of the information he gives his
patient and the quality of healthcare he provides.[82] But when the doctor speaks to the
public, his speech becomes protected speech, and the guarantees against prior restraint
and subsequent punishment applies to his expressions that involves medicine or any
other topic.[83] This distinction is not provided in Section 23(a)(1) of the RH Law, and we
cannot create a distinction in the law when it provides none. Thus, I submit that Section
23(a)(1) violates the right of health practitioners to speak in public about reproductive
health and should simply be struck down.

In particular, Section 23 (a)(1) of the RH Law fails to pass the balancing of interests test
designed to determine the validity of subsequent punishments that do not involve the
state’s interests in national security crimes. Under this test, the Court is tasked to
determine which of the competing legitimate interests that the law pits against each
other demands the greater protection under particular circumstances.[84]

In the present case, Section 23(a)(1) of the RH law pits against each other the State’s
interest in promoting the health and welfare of women on the one hand, and the
freedom of expression of health practitioners, on the other. The Solicitor General, in
particular, emphasized the need for Section 23(a)(1) to fulfill the State’s goal to secure
the people’s access to full, unbiased and accurate information about reproductive
health services.

While I do not wish to underestimate the State’s interest in providing accurate

information on reproductive health, I believe that the freedom of expression of medical
health practitioners, particularly in their communications to the public, outweighs this
State interest for the following reasons:

First, we must consider that the RH Law already puts the entire State machinery in
providing an all-encompassing, comprehensive, and nationwide information
dissemination program on family planning and other reproductive health programs and
services. The RH law commands the State to have an official stand on reproductive
health care and the full-range of family planning methods it supports, from natural to
artificial contraceptives. It then requires the national government to take the lead in the
implementation of the information dissemination campaign,[85] and local government
units to toe the line that the national government draws.[86]

The RH Law even requires both public and private hospitals to provide a full-range of
modern family planning services, including both natural and artificial means. This
necessarily means that hospitals (where the health practitioners work) are required by
law and under pain of penal punishment, to disseminate information about all available
reproductive health services.

To my mind, this information dissemination program, along with the mandatory

requirement for hospitals to provide a full range of family planning services, sufficiently
cover the state’s interest in providing accurate information about available reproductive
health services and programs.  If, corollary to the State’s interest to promote accurate
information about reproductive health, it intended to make health care practitioners
accountable for any negligence they may commit in the course of their practice, I submit
that, as my second argument will further expound, the existing regulatory framework
for their practice already sufficiently protects against such negligence and malpractice.

Second, the existing regulatory framework for the practice of medicine sufficiently

penalizes negligence and malpractice, to which the provision of inaccurate information
or the withholding of relevant medical information belongs.

Under our laws, an erring health practitioner may be subjected to three separate
proceedings. Depending on the act he or she has committed, the health practitioner
may be held criminally and civilly liable by our courts,[87] and administratively liable by
their professional regulation board.[88] For government employees, they can also be held
administratively liable under civil service laws.[89]

Thus, I do not see any reason to add another penalty specific to speech that covers
reproductive health, especially since, as pointed out earlier, state interests in providing
accurate information about RH services are already fully covered.

Lastly, and what, to me, tips the balance overwhelmingly in favor of speech, the chilling
effect that Section 23 (a)(1) creates against the expression of possible ideas, discussions
and opinions could eventually hinder progress in the science and research on
reproductive health. Health professionals are the most qualified to debate about the
efficacy and side effects of reproductive health services, and the penalty against uttering
incorrect information about reproductive health services could silence them. Even
worse, the requirement for them to provide information on all reproductive health
programs of the government could add to the chilling effect, as it sends a signal that the
only information on reproductive health that should be considered as correct is that of
the government.

In these lights, I concur with the ponencia’s conclusions, subject to the points I raised in

this Separate Opinion.

[1]
 Section 2, Article VIII of the 1987 Constitution reads:

Section 2. The Congress shall have the power to define, prescribe, and apportion the
jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction
over cases enumerated in Section 5 hereof.

[2]
 Section 6, Article VIII of the 1987 Constitution reads:

Section 6 provides that “The Supreme Court shall have administrative supervision over
all courts and the personnel thereof.”

[3]
 Batas Pambansa Blg. 129.

[4]
 This same power was only implied in the US Constitution and was expressly
recognized only through jurisprudence (Marbury v. Madison, 5 US 137 [1803]). Our 1935
and the 1973 Constitutions followed this approach.

[5]
 Constitution, Article VIII, Section 1.

[6]
 Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000; and Tanada v. Angara, G.R. No.
118295 May 2, 1997.

[7]
 Through the writs of certiorari, prohibition and mandamus over lower courts and
quasi-judicial bodies in the exercise of their adjudicative functions.

[8]
 As petitioner Alliance for Family Foundation Inc, states, “the question of when life
begins is neither metaphysical nor theological – it is scientific;” (Memorandum, pp. 48)
and unless the scientific community has become unanimous on a question that
transcends every culture, race, and religion, this Court cannot consider itself adequate
to answer the question. Indeed, the question of “when life begins?” is not simply a
question of law that this Court can conclusively answer; it is not also simply a question
of policy that Congress can conclusively determine. What the Court does know is that it
is question that is as old as humanity itself.

[9]
 http://psychology.about.com/od/developmentalpsychology/a/prenataldevelop.htm.

[10]
 Article 83 of the Revised Penal Code.

[11]
 See also Presidential Decree (PD) No. 603. The effect of this grant of presumptive
personality is illustrated in Geluz v. Velez (G.R. No. L-16439, July 20, 1961) where the
Court, denied recovery of damages for the death of an unborn because it is not yet
“endowed with personality.” Nevertheless, the Court recognized that an unborn fetus
has a “right to life and physical integrity.” Similarly in Quimiging v. Icao (G.R. No. 26795,
July 31, 1970), the Court ruled an unborn child is entitled to receive support from its
progenitors.

[12]
 See Arts. 255-259 of the Revised Penal Code.

[13]
 The Preamble of the 1987 Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality, and peace,
do ordain and promulgate this Constitution.
[14]
 This conclusion is reached by a reading of Section 12, Article II in relation with the
other provisions in the 1987 Constitution. Unlike the US Constitution, the idea of respect
for life and for human dignity permeates the Philippine Constitution, viz: Section 5,
Article II on the protection of life under a democracy; Section 9, Article II on a social
order that ensures quality life for all; Article II in relation to Article XIII on its special
regard for the youth, women, health, and ecology as factors affecting the life of the
people; Section 1, Article III on the protection of life through the observance of due
process; Section 1, Article XII on national economy that fosters equality of life for all.
[15]
 Records of the Constitutional Commission (RCC), July 17, 1986, p. 56.

[16]
 A heated and prolonged debated ensued on the question of whether a provision
protecting the life of the unborn should ever be written in the Constitution.

[17]
 There are three basic stage of prenatal development: germinal stage, embryonic
stage and fetal stage
(http://psychology.about.com/od/developmentalpsychology/a/prenataldevelop.htm.)
last accessed March 20, 2014.

[18]
 The process of growth and development within the womb in which a zygote (the cell
formed by the combination of a sperm and an egg) becomes an embryo, a fetus, and
then a baby (http://www.medterms.com/script/main/art.asp?articlekey=11899).

[19]
 (http://psychology.about.com/od/developmentalpsychology/a/prenataldevelop.htm.
) last accessed March 20, 2014.

[20]
 RCC, July 17, 1986.

[21]
 While the US Supreme Court recently reversed the trend of reviewing congressional
findings of fact in Gonzales v. Carhart (550 US 124 [2007]) it formally disavowed judicial
deference on the US Congress’s findings:

Although we review congressional fact finding under a deferential standard, we do not

in the circumstances here place dispositive weight on Congress’ findings. The Court
retains an independent constitutional duty to review factual findings where
constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In
cases brought to enforce constitutional rights, the judicial power of the United States
necessarily extends to the independent determination of all questions, both of fact and
law, necessary to the performance of that supreme function”)

[22]
 See Gonzales v. Carhart, 550 U.S. 124, (2007); Kansas v. Hendricks, 521 US 346
(1997); Jones v. United States, 463 U.S. 354 (1983).

In Gonzales v. Carhart, the Court was confronted with a medical disagreement whether

the law’s prohibition on a particular abortion procedure would ever impose significant
health risks on women seeking abortion. The Court upheld the prohibition as being
consistent with the State's interest in promoting respect for human life at all stages in
the pregnancy. “The medical uncertainty provides a sufficient basis to conclude in this
facial attack that the Act does not impose an undue burden.” In US v. Marshall, 414 U.S.
417 (1974), which the public respondents cited, after Robert Edward Marshall pleaded
guilty to an indictment charging him with entering a bank with intent to commit a
felony, he requested that he be considered for treatment as a narcotic addict pursuant
to law. The court denied his request because his prior two felony convictions statutorily
excluded him from the discretionary commitment provision of the law. Marshall
questioned the denial on due process grounds. The Court denied the challenge. After
considering the limited resources to fund the program and the lack of “generally
accepted medical view as to the efficacy of presently known therapeutic methods of
treating addicts,” the Court said that Congress simply made “a policy choice in an
experimental program” that it deems more beneficial to the society.
[23]
 Section 3(c); Section 4 (c), (d), (q)2; and Section 5, Republic Act (RA) No. 10354.

[24]
 Under Section 17 a(1) and (3) of RA No. 9710 (An Act Providing for the Magna Carta
of Women), women are granted, among others, access to maternal care which includes
access to pre-natal and post-natal services to address pregnancy and infant health and
nutrition and legal, safe and effective methods of family planning. Under Section 3(f) of
RA No. 6972 (An Act Establishing a Daycare Center in Every Barangay, Instituting therein
a Total Development and Protection of Children Program, Appropriating Funds therefor,
and For Other Purposes) the total development and protection of children program at
the barangay level include a referral and support system for pregnant mothers for
prenatal and neonatal care. Under Section 3(a) of RA No. 8980 (An Act Promulgating a
Comprehensive Policy and a National System for Early Childhood Care and Development
Providing Funds therefor and For Other Purposes), the early childhood and development
system under the law aims to make adequate health and nutrition programs accessible
to mothers as early as the pre-natal period.

[25]
 On this third reason, the US Supreme Court added:

Some of the argument for this justification rests on the theory that a new human life is
present from the moment of conception. The State's interest and general obligation to
protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant
mother herself is at stake, balanced against the life she carries within her, should the
interest of the embryo or fetus not prevail. Logically, of course, a legitimate state
interest in this area need not stand or fall on acceptance of the belief that life begins at
conception or at some other point prior to live birth. In assessing the State's interest,
recognition may be given to the less rigid claim that as long as at least potential life is
involved, the State may assert interests beyond the protection of the pregnant woman
alone.

[26]
 Roe challenged the constitutionality of a Texas criminal abortion law that proscribes
procuring or attempting an abortion except on medical advice for the purpose of saving
the mother's life.

[27]
 381 US 479 (1965). The Court reversed the conviction of the appellants who
prescribed contraceptives to married couples.

[28]
 405 US 438 (1971).

[29]
 The US Supreme Court said that “if the right of privacy means anything, it is the right
of the individual, married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether to bear or
beget a child.”

[30]
 The following is Roe’s trimester framework.

(a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State,
in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion
except where necessary, in appropriate medical judgment, for the preservation of the
life or health of the mother.

[31]
 The cases (e.g., Griswold v. Connecticut, 381 U.S. 479 [1965] and Eisenstadt v.
Baird, 405 U.S. 438 [1971]) that set the stage for  Roe v. Wade  essentially reflect what
the American constitutional law thinking is on the matter of pregnancy, abortion, and
the State’s intervention. The apprehension of the Framers of the constitution that this
individualist American ideal of privacy to justify abortion might find their way in our
statute books and jurisprudence must be understood in light of this apprehension. What
is distinctly noticeable in these American cases that set it apart from the case before us
is the reversal of roles between the exercise of governmental power and the assertion
of fundamental rights. These American cases basically involved the government’s
assertion of its interest over potential life as opposed to a woman’s privacy and liberty
interest to terminate that potential life. In the case before us, it is the government
which is accused of threatening a potential life through the RH law.

[32]
 R.C.C., September 16, 1986.

[33]
 431 U.S. 678 (1977). The Court struck down a New York law criminalizing the sale,
distribution (except by a licensed pharmacist to a person sixteen years of age or over)
and advertisement of nonprescription contraceptives because the limitation on the
distribution imposed a significant burden on the right of the individuals to use
contraceptives if they choose to do so. The Court ruled that since a decision on whether
to bear or beget a child involves a fundamental right, regulations imposing a burden on
it may be justified only by compelling state interests, and must be narrowly drawn to
express only those interests - something which is absent in this case. The Court said:
The Constitution protects individual decisions in matters of childbearing from unjustified
intrusion by the State. Restrictions on the distribution of contraceptives clearly burden
the freedom to make such decisions.
[34]
 Except by a licensed pharmacist and only to a person sixteen years of age or over.

[35]
 505 US 833 (1992).

[36]
 In this case, the constitutionality of a Pennsylvania statute which imposes certain
requirements before and after an abortion was challenged. The US Supreme Court
abandoned the trimester framework in Roe by replacing it with the “undue burden”
standard - i.e., maintaining the right of the pregnant woman to terminate her pregnancy
subject to state regulations that does not amount to an “undue burden” for the exercise
of the right. Nonetheless, the Court emphasized that it affirms Roe’s “central holding”
which consists of three parts: first, a recognition of the right of the woman to choose to
have an abortion before viability without undue interference from the State; second, a
confirmation of the State's power to restrict abortions after fetal viability, if the law
contains exceptions for pregnancies which endanger the woman's life or health; third,
the principle that the State has legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus that may become a child.

[37]
 Petitioner ALFI correctly pointed out that under the Implementing Rules and
Regulations (IRR) of RA No. 10354 (Section 3.01a and 7.04a), a drug or device will be
considered an abortifacient only if it “primarily” induces the abortion, destruction of
fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be
implanted in the uterus (Memorandum, p. 168).

[38]
 Section 7.04 of the IRR also reads:
Section 7.04. FDA Certification of Family Planning Supplies. The FDA must certify that a
family planning drug or device is not an abortifacient in dosages of its approved
indication (for drugs) or intended use (for devices) prior to its inclusion in the EDL. The
FDA shall observe the following guidelines in the determination of whether or not a
drug or device is an abortifacient:

a)  As defined in Section 3.01 (a) of these Rules, a drug or device is deemed to be an
abortifacient if it is proven to primarily induce abortion or the destruction of a fetus
inside the mother’s womb or the prevention of the fertilized ovum to reach and be
implanted in the mother’s womb;

xxx

[39]
 Section 2(c), RA No. 10354.

[40]
 Section 5, RA No. 10354.

[41]
 Public Respondents’ Comment, pp. 4-5.

[42]
 Section 4(s), RA No. 10354.

[43]
 Section 19, RA No. 10354.

[44]
 Section 2, RA No. 10354; See also Section 3, RA No. 10354.

[45]
 Section 10, RA No. 10354.

[46]
 Section 8.08, IRR of RA No. 10354.

[47]
 Section 8.08, IRR of RA No. 10354.

[48]
 Section 10, RA No. 10354; Section 8.09 and Section 12.02k, IRR of RA No. 10354. To
ensure the effective implementation of RA No. 10354, [See Section 3(i)], the DOH is
required to “facilitate the involvement and participation of [non-government
organization] and the private sector... in the production, distribution and delivery of
quality reproductive health and family planning supplies and commodities [See Section
19b(2), RA No. 10354; Section 12.01k and Section 12.04 of the IRR of RA No. 10354].
Towards this end, the IRR of RA No. 10354 provides that “where practicable, the DOH or
LGUs may engage [the services of] civil society organizations or private sector
distributors [Section 8.08 of the IRR of RA No. 10354].

[49]
 See Section 5 of RA No. 10354. Section 4.11 to 4.13 of the IRR of RA No. 10354 reads:

Section 4.11 Provision of Life-Saving Drugs During Maternal Care Emergencies.

Midwives and nurses shall be allowed to administer life-saving drugs, such as but not
limited to oxytocin and magnesium sulfate, in accordance with the guidelines set by the
DOH, under emergency conditions and when there are no physicians available:
Provided, That they are properly trained and certified to administer these life-saving
drugs.

Section 4.12 Policies on Administration of Life-Saving Drugs. Properly trained and

certified midwives and nurses shall be allowed to administer intravenous fluids,
oxytocin, magnesium sulfate, or other life-saving drugs in emergency situations and
when there are no physicians available. The certification shall be issued by DOH-
recognized training centers upon satisfactory completion of a training course. The
curriculum for this training course shall be developed by the DOH in consultation with
the relevant societies of skilled health professionals.

Within sixty (60) days from effectivity of these Rules, the DOH shall develop guidelines
for the implementation of this provision. The guidelines shall include provisions for
immediate referral and transport of the patient upon administration of these life-saving
drugs.

Section 4.13 Certification for LGU-Based Midwives and Nurses for the Administration of
Life-Saving Drugs. The LGUs, in coordination with the DOH, shall endeavor that all
midwives and nurses assigned to public primary health care facilities such as Rural
Health Units (RHUs) be given training and certification by a DOH-recognized training
center to administer life-saving drugs within one (1) year from the effectivity of these
Rules.
[50]
 Section 3.01k of the IRR of RA No. 10354.

[51]
 See Section 2, Section 3(e), and Section 4(a) of RA No. 10354.

[52]
 Section 3.01(l) of the IRR of RA No. 10354.

[53]
 Section 3(l) of RA No. 10354 reads: “
(l) Modern methods of family planning refers to safe, effective, non-abortifacient and
legal methods, whether natural or artificial, that are registered with the FDA, to plan
pregnancy.
[54]
 An Act Strengthening and Rationalizing the Regulatory Capacity of the Bureau of Food
and Drugs by Establishing Adequate Testing Laboratories and Field Offices, Upgrading its
Equipment, Augmenting its Human Resource Complement, Giving Authority to Retain its
Income, Renaming the Food and Drug Administration, Amending Certain Sections of
Republic Act No. 3720, as amended, and Appropriating Funds therefor.

[55]
 Wisconsin v. Yoder, 406 US 205.

[56]
  Silva v. CA, G.R. No. 114742, July 17, 1997.
[57]
 Art. 209, Executive Order No. 209.

[58]
 Ginsberg v. New York, 390 U.S. 629 (1968).

[59]
 Article II, Section 13 of the 1987 Constitution reads:
Section 13. The State recognizes the vital role of the youth in nation-building and shall
promote and protect their physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism, and encourage their
involvement in public and civic affairs.
[60]
 Prince v. Massachusetts, 321 US 158 (1944), citing Reynolds v. United States, 98 US
145; Davis v. Beason, 133 US 333.

[61]
 G.R. No. 95770, December 29, 1995.

[62]
 G.R. No. 95770, December 29, 1995.

[63]
 268 US 510 (1925).

[64]
 262 U.S. 390 (1923).

[65]
 268 U.S. 510 (1925).

[66]
 406 U.S. 205 (1972).

[67]
 See Curtis v. School Comm., 420 Mass. 749 (1995).

[68]
 See The Courts and Education, Volume 77, Part 1, Edited by Clifford P. Hooker,
University of Chicago Press, 1978, pp. 157-158.

[69]
 Medeiros v. Kiyosaki, 478 P. 2d 314 (1970).

[70]
 Citizens for Parental Rights v. San Mateo County Bd. of Education, 51 Cal. App. 3d 1
(1976).

[71]
  Hobolth v. Greenway, 52 Mich. App. 682 (1974).

[72]
  Hobolth v. Greenway, 52 Mich. App. 682, 684 (1974).

[73]
 Serrano v. Gallant Maritime Services,  G.R. No. 167614, March 24, 2009.

[74]
 As of the year 2000, only 7.76% of the total elementary school students and 22.67%
of the total high school students are enrolled in private institutions. Andrabi,  et.
al.,  Private Schooling: Limits and Possibilities, October 2005, accessed from
http://www.hks.harvard.edu/fs/akhwaja/papers/PrivateSchoold_Final_Nov5.pdf, citing
Edstats, The World Bank, Washington, D.C.

[75]
 See Peter G. Peterson, Gray Dawn: The Global Aging Crisis, Foreign Affairs, Vol. 78,
No. 1 (Jan. - Feb., 1999), available at http://www.jstor.org; European Union Center of
North Carolina, EU Briefings: The EU’s Demographic Crisis, March 2008, at
http://europe.unc.edu/wp-content/uploads/2013/08/Brief9-0803-demographic-
crisis.pdf.

[76]
 Prolife petition, pp. 34-37.

[77]
 See, for instance,  Article II, Section 12 and Article XV of the 1987 Constitution.

[78]
 Section 23 of RA 10354 reads:
SEC. 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;
[79]
 The right to speak includes the right not to speak, J. Cruz, Separate Opinion
in Ebralinag v. Division Schools Superintendent of Cebu, G.R. No. 95770, March 1, 1993.

[80]
 See Todd F. Simon, First Amendment in the Twentieth Century U.S. Supreme Court
begins to define freedoms of speech and press, in HISTORY OF MASS MEDIA IN THE
UNITED STATES: AN ENCYCLOPEDIA (1999), p.223; New York Times Co. v. Sullivan, 376
U.S. 254 (1964).

[81]
 See Robert C. Post, Informed Consent to Abortion: A First Amendment Analysis of
Compelled Physician Speech, 3 Univ. of Illinois Law Rev. 939, 2007, available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1169&context=fss_papers

[82]
 The practice of medicine, like all human behavior, transpires through the medium of
speech, In regulating the practice, therefore, the state must necessarily also regulate
professional speech, Without so much as a nod to the First Amendment, doctors are
routinely held liable for malpractice for speaking, or for failing to speak. Doctors commit
malpractice for failing to inform patients in a timely way of an accurate diagnosis, for
failing to give patients proper instructions, for failing to ask patients necessary
questions, or for failing to refer a patient to an appropriate specialist. In all these
contexts the regulation of professional speech is theoretically and practically
inseparable from the regulation of medicine. Id. at 950 – 951.

[83]
 See Bailey v. Huggins Diagnostic & Rehabilitation Center,  952 P.2d 768 (Colo. Ct, App
1997), where the Colorado Supreme Court made a distinction between a dentists’
speech made in the course of a dental treatment, and his speech in books and opinion
articles; the former may be the subject of a malpractice suit; the latter, on the other
hand, is not.

[84]
 American Communications Assoc. v. Douds, 339 US 282, as cited in Gonzales v.
COMELEC.
[85]
 It mandates the Department of Health and local government units to “initiate and
sustain a heightened nationwide multimedia-campaign to raise the level of public
awareness” on reproductive health, including family planning, and mandates local
governments in highly-urbanized cities to operate mobile health care services, which
shall, aside from providing health care goods and services, disseminate knowledge and
information on reproductive health.

Aside from capacity-building, the DOH is also required to update local government units
with appropriate information and resources to keep the latter updated on current
studies and researches relating to family planning. These pieces of information shall,
presumably, include information issued by the Food and Drugs Administration regarding
the use of and safety of contraceptives.

[86]
 Further, the RH Law mandates the DOH to disseminate information and train local
governments as regards its reproductive health care programs, and provide them with
the necessary supplies and equipment. Local government units, in turn, are mandated
to train their respective barangay health workers and other barangay volunteers on the
promotion of reproductive health.

[87]
 In this jurisdiction, however, such claims are most often brought as a civil action for
damages under Article 2176 of the Civil Code, and in some instances, as a criminal case
under Article 365 of the Revised Penal Code, Cruz v. Court of Appeals, G.R. No. 122445,
November 18, 1997.

[88]
 Under Presidential Decree No. 223, the Professional Regulation Commission exercises
supervisory powers over professional boards; these professional boards exercise
administrative, quasi-legislative, and quasi-judicial powers over their respective
professions. This includes investigating and adjudicating administrative cases against
professionals. Professional Regulation Commission, Professional Regulatory Boards, at
http://www.prc.gov.ph/prb/. Doctors, for instance, follow the Code of Ethics of the
Board of Medicine of the Philippine Regulatory Commission (PRC) and the Code of Ethics
of Medical Profession of the Philippine Medical Association (PMA). Complaints regarding
a violation of these codes may be taken cognizance by the Commission on Ethics of the
PMA (Section 3A, PMA By-laws), or by the Board of Medical Examiners (Section 22, Rep.
Act No. 2382).

[89]
 Doctors who are public officials are subject to Civil Service Laws and the Code of
Conduct and Ethical Standards for Public Officials and Employees. See, for
instance, Office of the Ombudsman v. Court of Appeals and Dr. Macabulos, G.R. No.
159395, May 7, 2008.

CONCURRING AND DISSENTING 

DEL CASTILLO, J.:
Our nation is at a crossroads.

Perhaps no other piece of legislation in recent history has so bitterly and piercingly
divided us as much as Republic Act No. 10354[1] or more popularly known as the RH Law.
That this law has cut deeply into the consciousness and wounded the soul of our nation
is evident from the profound depth of conviction with which both proponents and
opponents of this law have argued their cause before the bar of public opinion,
Congress, and. now, before this Court.

With the passage of the RH Law, the present case before us is the last remaining
obstacle to its implementation.

The RH Law is primarily a national family planning policy with universal access to
contraceptives and informed-free choice as its centerpiece. Its proponents laud the law
for what they perceive as a sound and aggressive contraceptive strategy geared towards
population control, poverty alleviation, women empowerment, and responsible
parenthood. Its opponents, however, deplore the law for what they claim brings about a
contraceptive mentality leading to the lowering of moral standards, destruction of
marriage and the family, a population winter, and a culture of death.

The path that we, as a nation, will take has already been decided by Congress, as
representatives of the people, under our system of government. The task before the
Court, then, is not to say which path we ought to take but to determine if the chosen
path treads on unconstitutional grounds. But this is not all. For the Court, which was
once generally a passive organ in our constitutional order, has been given expanded
powers under the present Constitution. It is now not only its right but its bounden duty
to determine grave abuse of discretion on the part of any branch, instrumentality or
agency of government,[2] and, equally important, it has been given the power to issue
rules for the protection and enforcement of constitutional rights.[3] The Court cannot,
therefore, remain an idle spectator or a disinterested referee when constitutional rights
are at stake. It is its duty to protect and defend constitutional rights for otherwise
its raison d'etre will cease.

With these considerations in mind, I am of the view that the social gains or ills, whether
imagined or real, resulting from the implementation of the RH Law is beyond the scope
of judicial review. Thus, even if we assume that the grave and catastrophic predictions
of the opponents of the RH Law manifest itself later on, the remedy would lie with
Congress to repeal or amend the law. We have entrusted our destiny as a nation to this
system of government with the underlying hope that Congress will find the
enlightenment and muster the will to change the course they have set under this law
should it prove unwise or detrimental to the life of our nation. The battle in this regard
remains within the legislative sphere. And there is no obstacle for the1 law's opponents
to continue fighting the good fight in the halls of Congress, if they so choose. Thus, the
Court will refrain from ruling on the validity of the RH Law based on its wisdom or
expediency.

This is not to say, however, that this law is beyond judicial scrutiny. While I will tackle
several constitutional questions presented before this Court in this Opinion, it is my
considered view that the paramount issue, which is properly the subject of
constitutional litigation, hinges on two vital questions: (1) when does the life of the
unborn begin? and (2) how do we ought to protect and defend this life?

On the first question, I am fully in accord with the result reached by the ponencia.
Absent a clear and unequivocal constitutional prohibition on the manufacture,
distribution, and use of contraceptives, there is nothing to prevent Congress from
adopting a national family planning policy provided that the contraceptives that will be
used pursuant thereto do not harm or destroy the life of the unborn from conception,
which is synonymous to fertilization, under Article II, Section 12[4] of the Constitution.
The plain meaning of this constitutional provision and the deliberations of the
Constitutional Commission bare this out.

It is upon the answer to the second question, however, where I find myself unable to
fully agree with the ponencia. Congress accomplished a commendable undertaking
when it passed the RH Law with utmost respect for the life of the unborn from
conception/fertilization. Indeed, this law is replete with provisions seeking to protect
and uphold the right to life of the unborn in consonance with the Constitution.

However, where the task of Congress ends, the Court's charge begins for it is mandated
by the Constitution to protect and defend constitutional rights. With the impending
implementation of the RH Law, the Court cannot turn a blind eye when the right to life
of the unborn may be imperiled or jeopardized. Within its constitutionally-mandated
role as guardian and defender of constitutional rights, in general, and its expanded
power to issue rules for the protection and enforcement of such rights, in particular, the
Court may, thus, issue such orders as are necessary and essential to protect, defend and
enforce the right to life of the unborn.

The framers of, and the people who ratified the Constitution set in bold and deft strokes
the protection of the life of the unborn from conception/fertilization because it
is precious, sacred and inviolable. For as long as this precept remains written in our
Constitution, our solemn duty is to stay the course in fidelity to the most cherished
values and wisdom of those who came before us and to whom we entrusted the writing
and ratification of our Constitution. History will judge this Court on what it did or did not
do to protect the life of the unborn from conception/fertilization. There is, therefore, no
other recourse but for this Court to act in defense of the life of the unborn.

These reasons primarily impel the writing of this Opinion.

Deliberations of the Constitutional

Commission on Article II, Section 12
of the Constitution. 

Article II, Section 1.2 of the Constitution provides, in part:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception, xxx (Emphasis
supplied)
Article II, Section 12 of the present Constitution was originally Article II, Section 9 of the
draft of the Constitution:

Section 9. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic social institution. The State shall equally protect the life
of the mother and the life of the unborn from the moment of conception.[5] x x x
(Emphasis supplied)

The draft of the Constitution was slightly differently worded as it made use of the phrase
"from the moment of conception" while its present wording is "from conception." The
change in wording, as will be discussed later, was to simplify the phraseology. But the
intended meaning of both phrases, as deliberated by the Constitutional Commission, is
the same.

The background and basis of the subject constitutional provision were explained in the
sponsorship speech of Commissioner Villegas. He emphasized that, based on
incontrovertible scientific evidence, the fertilized ovum is alive; that this life is human;
and that the fertilized ovum is a human person. Though that last point, he
acknowledged, was highly contested in law. Commissioner Villegas went on to discuss
why abortion could not be justified even in so-called hard cases such as pregnancies
resulting from rape or incest; pregnancies of mentally ill mothers; and pregnancies of
mothers mired in abject poverty.

The justification for disallowing abortion in hard cases sets the tone on the nature of the
right to life of the unborn, as a fundamental right, that recurs throughout the
deliberations:

The main reason why we should say "no" (to abortion in hard cases) are: (1) a wrong
cannot be righted by another wrong, (2) no one should be deprived of human
life without due process and we have established scientifically that from the moment of
conception, the fertilized ovum has already life; and (3) a fetus, just like any human,
must be presumed innocent unless proven guilty. It is quite obvious that the fetus has
done no wrong. Its only wrong is to be an unwanted baby.[6] (Emphasis supplied)

Commissioner Villegas would later re-emphasize this' point at the end of his sponsorship
speech, thus:

What is being affirmed in this formulation is the moral right as well as the constitutional

right of the unborn child to life, x x x The views I express here transcend religious
differences. As I have declared in another occasion, this is not a Roman Catholic
position. Since time immemorial, even before Christianity was brought to our soil, as
you very well know, our ancestors referred to the baby in the womb of the mother as
tao— siya'y nagdadalang-tao. Ang dinadala ay tao; hindi halaman, hindi hayop, hindi
palaka— tao.

Madam President, let me also quote from a non-Christian in. our Commission. In a
public hearing, the honorable Commissioner Uka said the following: "As a Muslim, I
believe in,the Ten Commandments, and one of the Ten Commandments is "Thou shalt
not kill," From the time of conception, there is already life. Now if you put down that
life, there is already killing, a violation of one of the Ten Commandments. The
overwhelming majority of Filipinos agree with Commissioner Uka that we should
support Section 9. We have received up to now more man 50,000 signatures from all
over the Philippines, from individuals belonging to all walks of life. I do not think there is
any other issue in which we have been bombarded with, more numerous, signatures.
Let us, therefore, listen to all of them and mandate that the State should equally protect
the life of the mother and the unborn from the moment of conception.[7] (Emphasis
supplied)

Subsequently, Commissioner Nolledo would re-echo these views:

Killing the fetus, while categorized as abortion in our Revised Penal Code, is plain
murder because of its inability to defend itself. Let the unborn, Madam President, the
unborn which is cherished, precious and loving gift of God, enjoy constitutional
protection in a Christian country like ours.[8]

The subject constitutional, provision, thus, sought to recognize the right to life of the
unborn as a fundamental right. As Commissioner Padilla observed:

Madam President, after the sponsorship of Commissioner Villegas on Section 9, I

wanted to state that I fully concur with his views in support of Section 9 on the right of
the unborn from conception. I found his exposition to be logical, not necessarily
creative, much less critical, but logical. Madam President, I would like to state that the
Revised Penal Code does not only penalize infanticide but it has various provisions
penalizing abortion; Article 256, intentional abortion; Article 257, unintentional
abortion; Article 258, abortion practiced by the woman herself or by her parents; and
Article 259, abortion practiced by a physician or midwife and dispensing of abortives.

However, I believe the intention of the proponents of Section 9 is not only to affirm this
punitive provision in the Penal Code but to make clear that it is a fundamental right
that deserves to be mentioned in the Constitution.[9]
(Emphasis supplied)

The unique status of the fundamental right accorded to the unborn was explored in
later discussions. It was emphasized that the subject constitutional provision was
intended to protect only the right to life of the unborn unlike the human person who
enjoys the right to life, liberty and property:

MR. SUAREZ. Going to these unborn children who will be given protection from the
moment of conception, does the Commissioner have in mind giving them also
proprietary rights, like the right to inheritance?

MR. VILLEGAS. No, Madam President. Precisely, the question of whether or not that
unborn is a legal person who can acquire property is completely a secondary
question. The only right that we want to protect from the moment of conception is the
right to life, which is the beginning of all other rights.

MR. SUAREZ. So, only the right to life,

MR. VILLEGAS. Yes, it is very clear, only the right to life.

MR. SUAREZ. That is the only right that is constitutionally protected by the State.

MR. VILLEGAS. That is right, Madam President.[10] (Emphasis supplied)

The deliberations also revealed that the subject constitutional provision was intended to
prevent the Court from making a Roe v. Wade[11] ruling in our jurisdiction:

MR. VILLEGAS. Yes, Madam President. As Commissioner Padilla already said, it is

important that we have a constitutional provision that is more basic than the existing
laws. In countries like the United States, they get involved in some ridiculous internal
contradictions in their laws when they give the child the right to damages received while
yet unborn, to inheritance, to blood transfusion over its mother's objection, to have a
guardian appointed and other rights of citizenship; but they do not give him the right to
life.

As has happened after that infamous 1972 U.S. Supreme Court decision (Roe v. Wade),
babies can be killed, all the way up to 8 and 8 ½ months. So precisely this basic provision
is necessary because inferior laws are sometimes imperfect and completely distorted.
We have to make sure that the basic law will prevent all of these internal contradictions
found in American jurisprudence because Filipino lawyers very often cite American
jurisprudence.[12]

xxxx

MR. VILLEGAS. As I have said, we must prevent any possibility of legalized abortion,
because there is enough jurisprudence that may be used by Congress or by our Supreme
Court.

Let me just read what happened after the Roe v. Wade decision in the U.S. Supreme
Court, x x x

So, these are the floodgates that are open?

REV. RIGOS. Which are?

MR. VILLEGAS. As I said, American jurisprudence looms large on Philippine practice and
because it is a transcendental issue, we have to completely remove the possibility of our
Congress and our Supreme Court following this tragic trail.[13]

There was, thus, a clear rejection of the theory used in Roe v. Wade that the test of
human personality was viability. Further, the subject constitutional provision was
intended to prohibit Congress from legalizing abortion:

MR. VILLEGAS. "Protection" means any attempt on the life of the child from the moment
of conception can be considered abortion and can, be criminal.

MR. SUAREZ. So, principally and exclusively, if I may say so, what the Commissioner has
in mind is only an act outlawing abortion.
MR. VILLEGAS. Exactly, Madam President.

MR. SUAREZ.  So that is the real thrust and meaning of this particular provision.

MR. VILLEGAS. That is right.

MR. SUAREZ. Can we not just spell it out in our Constitution that abortion, is outlawed,
without stating the right to life of the unborn from the moment of conception, Madam
President?

MR. VILLEGAS. No, because that would already be getting into the legal technicalities.
That is already legislation. The moment we have this provision, all laws making abortion
possible would be unconstitutional. That is the purpose of this provision, Madam
President.[14]

xxxx

MR. NATIVIDAD. Madam President, I rose to ask these questions because I had the
impression that this provision of the Constitution would prevent future Congresses from
enacting laws legalizing abortion. Is my perception correct, Madam President?

MR. VILLEGAS. Exactly. Congress cannot legalize abortion. It would be unconstitutional.

MR. NATIVEDAD. In what way will it collide with this provision?

MR. VILLEGAS. Any direct killing of the unborn from 'the moment of conception would
be going against the Constitution and, therefore, that law would be, if Congress
attempts to make it legal, unconstitutional.[15]

The sole exception to this constitutional prohibition against abortion is when there is a
need, in rare cases, to save the life of the mother which indirectly sacrifices the unborn's
life under the principle of double effect:

MR. BENNAGEN. In making a decision as to which life takes priority, the life of the
mother or the life of the unborn, what criteria are contemplated by the committee on
which to base the decision?

MR. VILLEGAS. We have articulated this moral principle called the principle of double
effect. Whenever there is need, for example, to perform a surgical operation on the
mother because of a disease or some organic malfunctioning, then the direct intention
is to save the mother. And if indirectly the child's life has to be sacrificed, that would not
be abortion, that would not be killing. So, in those situations which we said are
becoming rarer and rarer because of the tremendous advance of medical science, the
mother's life is safe.[16]

Intricately related to the prohibition of legalizing abortion was the intention to prevent
Congress, through future legislation, from defining when life begins other than at the
time of fertilization:
MR. DAVIDE. Precisely. So, insofar as the unborn is concerned, life begins at the first
moment of conception. Therefore, there is no need to delete. There is no need to leave
it to Congress because that is a matter settled in medicine.

xxxx

REV. RIGOS. Yes, we think that the word "unborn" is sufficient for the purpose of writing
a Constitution, without specifying "from the moment of conception.

MR. DAVIDE. I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life
begins. So, Congress can define life to begin from six months after fertilization; and that
would really be very, very dangerous. It is now determined by science that life begins
from the moment of conception. There can be no doubt about it. So, we should not give
any doubt to Congress, too.

Thank you, Madam President. (Applause)[17] (Emphasis supplied)

Much of the debates, however, centered on the meaning of the phrase "from the
moment of conception." It is clear from the deliberations that the intended meaning of
the phrase "from the moment of conception" was fertilization or the moment the egg is
fertilized by the sperm.

REV. RIGOS. In Section 9, page 3, there is a sentence which reads:

The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.

When is the moment of conception?

xxxx

MR. VILLEGAS. As I explained in the sponsorship speech, it is when the ovum is

fertilized by the sperm that there is human life. Just to repeat: first, there is obviously
life because it starts to nourish itself, it starts to grow as any living being, and it is human
because at the moment of fertilization, the chromosomes that combined in the fertilized
ovum are the chromosomes that are uniquely found in human beings and are not found
in any other living being.[18] (Emphasis supplied)

Significantly, the framers intentionally made use of the term "from the moment of
conception" so that the people who will ratify the Constitution would easily understand
its meaning:

MR. TINGSON. We would like Commissioner Rigos to know that the phrase "from the
moment of conception" was described by us here before with the scientific phrase
"fertilized ovum." However, we figured in the committee that the phrase "fertilized
ovum" may be beyond the comprehension of some people; we want to use the simpler
phrase "from the moment of conception."[19]

During the deliberations, the meaning of "from the moment of conception"

was repeatedly reaffirmed as pertaining to the fertilization of the egg by the sperm. As a
necessary consequence of this definition, any drug or device that harms the unborn
from the moment of fertilization is considered an abortifacient and should be banned by
the State:

MR. GASCON. Mr. Presiding Officer, I would like to ask a question on that point. Actually
that is one of the questions I was going to raise during the period of interpellations but
it has been expressed already. The provision, as it is proposed right now, states:
The State shall equally protect the life of the mother and the life of the unborn from the
moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg
meets the sperm?

MR. VILLEGAS. Yes, the ovum, is fertilized by the sperm.

MR. GASCON. Therefore, that does not leave to Congress the right to determine
whether certain contraceptives that we know of today are abortifacient or not because
it is a fact that some of these so-called contraceptives deter the rooting of the fertilized
ovum in the uterus. If fertilization has already occurred, the next process is for the
fertilized ovum to travel towards the uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the fertilized ovum to reach the
uterus. Therefore, if we take the provision as it is proposed, these so-called
contraceptives should be banned.

MR. VILLEGAS. Yes, if that physical feet is established, then that is what we call
abortifacient and, therefore, would be unconstitutional and should be banned under
this provision.[20] (Emphasis supplied)

This was further confirmed in the following exchanges:

MR. GASCON, x x x

xxxx

I mentioned that if we institutionalize the term "the life of the unborn from the moment
of conception," we are also actually saying "no," not "maybe" to certain contraceptives
which are already being encouraged at this point in time. Is that the sense of the
committee or docs it disagree with me?

MR. AZCUNA. No, Mr. Presiding Officer, because contraceptives would be preventive.
There is no unborn yet. That is yet unshaped.

MR. GASCON. Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the infra-uterine device which actually stops the egg which has
already been fertilized from taking route to the uterus. So, if we say "from the moment
of conception," what really occurs is that some of these contraceptives will have to be
unconstitutionalized.

MR. AZCUNA. Yes, to the extent that it is after the fertilization, Mr. Presiding Officer.
[21]
 (Emphasis supplied)
Later, Commissioner Padilla initiated moves to reword the phrase "from the moment of
conception" to "from conception" to simplify the phraseology of the subject
constitutional provision without deviating from its original meaning, that is, conception
pertains to fertilization.[22]

The real challenge to the proponents of the subject constitutional provision, however,
was the move by several members of the Commission to change the phrase "protect the
life of the mother and the life of the unborn from the moment of conception" to
"protect the life of the mother and the life of the unborn." In other words, there was a
move to delete the phrase "from, the moment of conception." Opponents. of the
subject constitutional provision argued mat the determination of when life begins
should be left to Congress to address in a future legislation where there is greater
opportunity to debate the issues dealing with human personality and when it begins.[23]

After a lengthy exchange, the proponents of the subject constitutional provision scored
a decisive victory when the final voting on whether to retain or delete the phrase "from
the moment of conception" was held:

THE PRESIDENT, x x x So, if the vote is "yes", it is to delete "from the moment of
conception." If the vote is "no," then that means to say that the phrase "from the
moment of conception" remains.[24]

xxxx

THE PRESIDENT. The results show 8 votes in favor and 32 against; so, the proposed Rigos
amendment is lost.[25]

Hence, the phrase "from the moment of conception" was retained. Subsequently, the
Padilla amendment was put to a vote. With a vote of 33 in favor, 3 against, and 4
abstentions, the Padilla amendment was approved. Thus, the present wording of the
second sentence of Article II, Section 12 of the Constitution makes use of the simplified
phrase "from conception."

Key Characteristics of Article II, Section 12

Several important characteristics or observations may be made on the nature, scope

and significance of Article II, Section 12 of the Constitution relative to the protection of
the life of the unborn based on the deliberations of the Constitutional Commission.

First, the framers were unequivocal in their intent to define "conception" as the
fertilization of the egg by the sperm and to' accord constitutional protection to the life
of the unborn from the moment of fertilization. The plain meaning of the term
"conception," as synonymous to fertilization, based on dictionaries and medical
textbooks, as aptly and extensively discussed by the ponencia, confirm this construction.
In addition, petitioners correctly argue that the definition of "conception," as equivalent
to fertilization, was the same definition prevailing during the 1980's or at around the
time the 1987 Constitution was ratified.26 Hence, under the rule of constitutional
construction, which gives weight to how the term was understood by the people who
ratified the Constitution, "conception" should be understood as fertilization.
Second, the protection of the life of the unborn under Article II, Section 12

is a self-executing provision because:

(1) It prevents Congress from legalizing abortion; from passing laws which
authorize the use of abortifacients; and from passing laws which will determine
when life begins other than from the moment of conception/fertilization;
(2) It prevents the Supreme Court from making a Roe v. Wade[29] ruling in our
jurisdiction; and
(3) It obligates the Executive to ban contraceptives which act as abortifacients or
those which harm or destroy the unborn from conception/fertilization.

Article II, Section 12 is, thus, a direct, immediate and effective limitation on the three
great branches of government and a positive command on the State to protect the life
of the unborn.

Third, Article H, Section 12 recognized a sui generis  constitutional right to life of the
unborn. The framers repeatedly treated or referred to the right to life of the unborn as a
fundamental right and thereby acknowledged that the unborn is a proper subject of a
constitutional right. That this right is founded on natural law and is self-executing
further provides the unmistakable basis and intent to accord, it the status of a
constitutional right. However, it is sui generis because, unlike a person who possesses
the right to life, liberty and property, the unborn's fundamental right is solely limited to
the right to life as was the intention of the framers. Clearly, then, Article II, Section 12
recognized a sui generis right to life of the unborn from conception/fertilization and
elevated it to the status of a constitutional right.

Fourth, because the unborn has been accorded a constitutional right to life from
conception/fertilization under Article II, Section 12, this right falls within the ambit of
the Court's power to issue rules for the protection and enforcement of constitutional
rights under Article VIII, Section 5(5) of the Constitution:

Sections. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional

rights, x x x. Rules of procedure, of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.

This is significant  because it imposes upon this Court the duty to protect such right
pursuant to its rule-making powers. In recent times, the Court acknowledged that the
right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature under Article II, Section. 16 of the Constitution, though found in the
Declaration of Principles and Policies (like the subject right to life of the unborn) and not
in the Bill of Rights, may be given flesh pursuant to the power of the Court to issue rules
for the protection and enforcement of constitutional rights. It, thus, proceeded to
promulgate the rules governing the Writ of Kalikasan.[29]
With far greater reason should the Court wield this power here because the unborn is
totally defenseless and must rely wholly on the State to represent its interest in-matters
affecting the protection and preservation of its very life. It does not necessarily follow,
however, that the Court should issue a set of rules to protect the life of the unborn like
the Writ of Kalikasan. How the Court is to protect and enforce the constitutional right to
life of the unborn, within the context of the RH Law, is the central theme of this
Opinion.

With the groundwork constitutional principles in place, I now proceed to tackle the
constitutionality of the RH Law and its Implementing Rules and Regulations (ERR).

The RH Law does not contravene Article II,

Section 12 of the Constitution.

The RH Law prohibits the use of abortifacients hi several provisions in consonance with
Article II, Section 12 of the Constitution, to wit:

(1)  Section 2:

SEC. 2. Declaration of Policy. - x x x

The State likewise guarantees universal access to medically-safe, non-abortifacient,

effective, legal, affordable, and quality reproductive health care services, methods,
devices, supplies which do not prevent the implantation of a fertilized ovum as
determined by the Food and Drug Administration (FDA) and relevant information and
education thereon according to the priority needs of women, children and other
underprivileged sectors, giving preferential access to those identified through the
National Household Targeting System for Poverty Reduction (NHTS-PR) and oilier
government measures of identifying marginalizalion, who shall be voluntary
beneficiaries of reproductive health care, services and supplies for free. (Emphasis
supplied)

(2)  Section 3:

SEC. 3. Guiding Principles for Implementation. - This Act declares the following as
guiding principles: x x x

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifacient, effective and quality reproductive health care services and supplies is
essential in the promotion of people's right to health, especially those of women, the
poor, and -the marginalized, and shall be incorporated as a component of basic health
care;

(c) The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards such as those registered
and approved by the FDA for the poor and marginalized as identified through the NHTS-
PR and other government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions; x x x

(j) While this Act recognizes that abortion is illegal and punishable by law, the
government shall ensure that all women needing care for post-abortive complications
and all other complications arising from pregnancy, labor and delivery and related issues
shall be treated and counseled in a humane, nonjudgmental and compassionate manner
in accordance with law and medical ethics; (Emphasis supplied)

(3) Section 4:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows: x x x

(a) Abortifacient  refers to any drag or device that induces abortion or the destruction
of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon determination of the EDA.

xxxx

(e) Family planning refers to a program which enables couples and individuals to decide

freely and responsibly the number and spacing of their children and to have the
information and means to do so, and to have access to a fall range of safe, affordable,
effective, non-abortifacient modem natural and artificial methods of planning
pregnancy.

xxxx

(1) Modern methods of family planning  refers to safe, effective, non-abortifacient and

legal methods, whether natural or artificial, that are registered with the FDA, to plan
pregnancy.

xxxx

(s) Reproductive health rights refers to the rights of individuals and couples, to decide

freely and responsibly whether or not to have children; the number, spacing and timing
of their children; to make oilier decisions concerning reproduction, free of
discrimination, coercion and violence; to have the information and means to do so; and
to attain the highest standard of sexual health and reproductive health: Provided,
however, That reproductive health rights do not include abortion, and access to
abortifacients. (Emphasis supplied)

(4) Section 9:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. -
The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family
planning products and supplies. The Philippine National Drug Formulary System (PNDFS)
shall be observed in selecting drags including family planning supplies that will be
included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the
EDL must have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals: Provided, further, That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent. (Emphasis supplied)

The key provision is found in Section 4(a) which defines an "abortifacient" as "any drug
or device that induces abortion or the destruction of a fetus inside the mother's womb
or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA." That last phrase which effectively bans
contraceptives that prevent the fertilized ovum from reaching and being implanted in
the mother's womb guarantees that the fertilized ovum will not be harmed or destroyed
from the moment of fertilization until its implantation. Thus, the RH Law protects the
unborn from conception/fertilization in consonance with the Constitution.

As earlier noted, the RH Law is to be commended for its zealous protection of the life of
the unborn from conception/fertilization. It repeatedly emphasizes that the
contraceptives which will be made available under the law should be non-abortifacient.
It prohibits the use of abortifacients and penalizes the use thereof. Thus, it cannot be
said that: the law violates Article II, Section 12 of the Constitution.

The IRR's definition of "abortifacient"

and "contraceptive" contravenes Article
II, Section 12 of the Constitution and,
the RH Law itself.

Petitioners Alliance for the Family Foundation Philippines, Inc. (ALF1) et al. areue:

9.1.9 The IRRs, which have been signed by the Secretary of Health himself, among
others, veer away from the definition of the term "abortifacient" in SEC. 4 (a) of
the RH Law, such that in the IRRs, the term has, in effect, been re-defined.
9.1.10 Rule 3 - Definition of Terms, Section 3.01 (a) of the IRRs, as signed, states:

"Abortifacient refers to any drug or. device that primarily induces abortion or

the destruction of a fetus inside the mother's womb or the prevention of (lie
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA)."

And "primarily" means the drug or device has no other known effect aside
from abortion, (footnote 14, IRRs)
9.1.11 xxxx
9.1.12 One can readily spot how the insertion of the word "primarily" has radically, if
not deceptively, changed the meaning of "Abortifacient" under the RH Law. As
explained above, the primary mechanism of action of contraceptives is really to
 prevent ovulation or fertilization, but this does not happen all the time because
in some instances break through ovulation occurs and the built-in and back-up
abortive action sets in. With the definition under the IRR, abortifacient
contraceptives will not be classified as abortifacients. because they do not
"primarily" and "solely" cause abortion or are abortive. Well, this should not be
surprising anymore because as indicated in the explanatory note of the IRRs,
the only goal is to save [the] mother's lives and to reduce maternal mortality
rate, without any reference to saving the life of the unborn child or decreasing
infant mortality rate.
9.1.13. Clearly, but unfortunately, the true legislative intent is: for the State to fund
and fully implement the procurement and widespread dissemination and use
of all forms of contraceptive products, supplies and devices, even if they are
abortifacient and harmful to the health of women. This goes counter to the.
constitutional intent of Section 12, Article II which is to afford protection to the
unborn child from the incipient stage of the existence of life, that is, from the
very moment of conception or fertilization, and to give equal protection to the
life of the mother and the life of the unborn from conception:[30]

I agree.

Section 3.01 (a) of the IRR defines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the

destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum
to reach and be implanted in the mother's' womb upon determination, of the Food and
Drug Administration (FDA). (Emphasis supplied)

On the oilier hand, the RH Law defines "abortifacient" thus:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of

a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb upon determination of the FDA.

Clearly, the addition of the word "primarily" in the IRR is ultra vires for it amends or
contravenes Section 4(a) of the RH Law.

More importantly, I agree that the insertion of the qualifier "primarily" will open the
floodgates to the approval of contraceptives which may harm or destroy the life of the
unborn from conception/fertilization in violation of Article II, Section 12 of the
Constitution. As defined in the IRR, a drug or device is considered an abortifacient if it
"primarily" induces abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in the mother's womb;
where "primarily" means that the drug or device has no other known effect aside from
abortion. In other words, under the IRR, a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as pertinent here, the prevention
of the implantation of the fertilized ovum.

Consequently, a drug or device which (a) prevents fertilization, (b) but does not provide
a 100% guarantee of such prevention, and (c) has a fail-safe mechanism which will
prevent the implantation of the fertilized ovum in case fertilization still occurs will not
be considered an "abortifacient" because the known effect thereof is not solely
prevention of implantation since (1) it primarily prevents fertilization and (2) only
secondarily prevents the implantation of the fertilized ovum in case fertilization still
occurs.

However, a drug or device that cannot provide a 100% guarantee that it will prevent
fertilization and has a fail-safe mechanism which prevents implantation of the fertilized
ovum (or harming/destroying the fertilized ovum in any way) if fertilization occurs is
unconstitutional under Article II, Section 12 and must be banned by the State. In more
concrete terms, if a drug or device provides only a 90% guarantee of prevention of
fertilization, then there is a 10% chance mat fertilization will still occur and the fertilized
ovum would be destroyed by the failsafe mechanism of the contraceptive.

We cannot play the game of probabilities when life is at stake. The destruction or loss of
life is permanent and irrevocable. Our constitutional mandate is to protect the life of the
unborn from conception/fertilization. We cannot protect this life 90% of the time and
allow its destruction 10% of the time. We either protect this life or we do not. There is
nothing in between.

If we are to truly give flesh to the constitutional precept that the life of the unborn from
conception/fertilization is precious, sacred and inviolable, all reasonable doubts should
be resolved in favor of the protection and preservation of the life of the unborn, and any
probability of destruction or loss of such life be absolutely proscribed. The supreme law
of the land commands no less.

For parallel reasons, the IRR's definition of "contraceptive" under Section 3.01(j) is
unconstitutional because of the insertion of the qualifier "primarily," to wit:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

xxxx

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern

family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in do.ses of its approved
indication as determined by the Food and Drug Administration (FDA). (Emphasis
supplied)

Although the RH Law does not provide a definition of "contraceptive," a reasonable and
logical deduction is that "contraceptive" (or allowable contraceptive to be more precise)
is the opposite of "abortifacient" as defined under the RH Law. This seems to be the tack
adopted by the IRR in defining "contraceptive." However, the IRR's definition of
"contraceptive" again added the qualifier "primarily." For similar reasons with the
previous discussion on the IRR's definition of "abortifacient," this definition of
"contraceptive" opens the floodgates to the approval of contraceptives which are
actually abortifacients because of their fail-safe mechanism. Hence, the qualifier
"primarily" in Section 3.01(j) is, likewise, void.

In view of the foregoing, the word "primarily" in Section 3.01 (a) and (j) of the IRR
should be declared void for (1) contravening Section 4(a) of the RH Law and (2) violating
Article II, Section 12 of Constitution.

Within the framework of implementation

of the RH Law, it is necessary for this
Court to exercise its expanded jurisdiction
and power to issue rules for the protection
and enforcement of constitutional rights in
order to adequately protect the right to life
of the unborn.

The Court should not limit its scrutiny to the constitutional validity of the RH Law and its
IRR. This is because the right to life of the unborn from conception/fertilization, is a
constitutional right properly within the ambit of the Court's power to issue rules for the
protection and enforcement of constitutional rights under Article VIII, Section 5(5) of the
Constitution. In Echegaray v. Secretary of Justice,[31] the Court described this power to
issue rules as one of the innovations of the present Constitution to expand the powers
of the Court:

The 1987 Constitution molded tin even stronger and more independent judiciary.
Among others, it enhanced the rule making power of this Court. Its Section 5(5), Article
VIII provides:

xxx   xxx   xxx 

"Section 5. The Supreme Court shall have the following powers:

xxx   xxx   xxx 

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged, Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special, courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court."
The rule malting power of this Court was expanded. This Court for the first time was
given the power to promulgate rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial bodies, xxx

Viewed in light of the broad power of the Court to issue rules for the protection and
enforcement of constitutional rights, the power to disapprove the rules of procedure of
quasi-judicial bodies is significant in that it implies the power of the Court to look into
the sufficiency of such rules of procedure insofar as they adequately protect and
enforce constitutional rights. Moreover, the power to disapprove the aforesaid rules of
procedure necessarily includes or implies the power to approve or modify such rules or,
on the one extreme, require that such rules of procedure be issued when necessary to
protect and enforce constitutional rights, hi other words, within and between the
broader power to issue rules for the protection and. enforcement of constitutional
rights and the narrower power to disapprove the rules of procedure of quasi-judicial
bodies, there exist penumbras of this power that the Court may exercise in order to
protect and enforce constitutional rights.

Furthermore, the power to determine when the aforesaid powers may be exercised
should be understood in. conjunction with the Court's expanded jurisdiction, under
Article VIII, Section 1  of the Constitution, to determine "whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."

Taken together, the expanded jurisdiction of the Court and the power to issue rules for
the protection and enforcement of constitutional rights provide the bases for the Court
(1) to look into the sufficiency of safeguards in the implementation of the RH Law
insofar as it will adversely affect the right to life of the unborn, and (2) to issue such
orders as are necessary and essential in order to protect and enforce the constitutional
right to life of the unborn. This is especially true in this case because the expanded
powers of the Court was granted to it to prevent a repeat of the bitter experiences
during martial law years when rampant human rights violations occurred. Verily, the
expanded powers were conferred on this Court at a great price and were given for a
clear purpose. Here, a more basic right—the right to life of the unborn— is at stake; the
right from which all human rights emanate.

It should come as no surprise that at a time our nation is set to embark on a great social
experiment, where the fall machinery of the State will be utilized to implement an
aggressive national family planning policy, the Court should find itself reflecting on the
threshold of its constitutionally-mandated powers. The Court is beckoned to
courageously sail forth to the new frontiers of its powers in order to stem the tide of
oppression, nay destruction, against a most  vulnerable group that may be trampled
upon by this great social experiment. For can there be any group more vulnerable than
the unborn?

As they say, we stand on the shoulders of giants. They have blazed the trail for this
Court in order that we may see clearly what we can and ought to do in defense of the
life of the unborn. They have seen fit to equip this Court with expanded powers in
preparation for a future that they must have known would involve moments of great
clashes between the juggernaut of majoritarian interests and the politically powerless
and marginalized. We are in that moment. And we ought to firmly stand by the legacy
and solemn charge that the framers of, and the people who ratified our Constitution
conferred upon us.

Against this backdrop, I delineate what the Court in the exercise of its expanded
jurisdiction and power to issue rules for the protection and enforcement of
constitutional rights is mandated to do in defense of the life of the unborn within the
framework of implementation of the RH Law.
The Food and Drug Administration
(FDA) should he directed to issue
the proper rules of procedure that will
sufficiently safeguard the right to life
of the unborn.

Preliminarily, central to the protection of the right to life of the unborn is the proper
determination, through screening, testing and/or evaluation, by the FDA, using the
standard under the Constitution., as adopted under the RH Law, on what will constitute
allowable contraceptives under the RH Law. During the oral arguments of this case, I
delved upon the crucial task that lay ahead for the FDA:

Justice Del Castillo:

Counsel, just a few follow-up questions on contraceptives.

Alty. Noche:
Yes, Your Honor.

Justice Del Castillo:

You have identified contraceptives as abortifacient.

Atty. Noche:
Yes, Your Honor.

Justice Del Castillo:

There are so many contraceptives and the respondents have taken the view that not all
are abortifacients. So to resolve this issue, why don't you identify, why don't you name
these contraceptives and then let's test them if they are abortifacient then the issue is
settled, so instead of making generalization that all contraceptives are abortifacient,
don't you think that the proper course of action to take is to identify all these because
practically all drugs are abortifacients, even a simple aspirin, so these tire [as a] matter
of degree. So, perhaps those that would cause tremendous harm and maybe we can ban
them. But unless we have not identified them just to say that all abortifacients, don't'
you think that.....

Atty. Noche:
If Your Honor, please, hormonal contraceptives, what we're saying is that hormonal
contraceptives which include, you know, the pills, and the injectables, and intrauterine
devices, Your Honor, and the patches, Your Honor, implants they're proven to be
abortifacients, Your Honor. Vasectomy, sterilization procedures, Your Honor, they are
also referred to as contraceptives, Your Honor, but they are not abortifacients because
they don't contain hormones. Your Honor.

Justice Del Castillo:

No, I was suggesting that because the respondents would also come out with their own
authorities, so to resolve it once and for all, let's test them.

Atty. Noche:
If Your Honor, please, we also have an objection about giving, of course, I'm sure, Your
Honor, I've been referring to delegating the authority to the Food and Drug
Administration, so we have a problem with that, Your Honor, because, I mean, these
hormonal contraceptives are proven to be abortifacients. Your Honor, and....
(interrupted)

Justice Del Castillo:

I am not just referring to the Food and Drug Administration. My point is, let's put it to
test because this is just x x x evidentiary, it's a matter of fact, we cannot make
generalizations. [They're] saying that these are not abortifacients, you are saying x x x
that they are abortifacients, then let's prove it That is just my suggestion.

Atty. Noche:
If Your Honor, please, may I, you know, bring out the very important point that we have
always tried to bring out, Your Honor. Section 12, otherwise, we forget this, Section 12,
Article II mandates the protection of the unborn from conception. And that protection is
not just from death but from any risks or threat of harm, or injury or any form or
degree, remote or direct, momentary or permanent and it has proven already mat
anything, Your Honor, that you introduce into the body that disrupts the, you know,
workings in the uterus or the physiology in the uterus is harmful to the fertilized ovum
so.......... (interrupted)

Justice Del Castillo:

Yes, Counsel, but the protection comes in only after, if I may grant you, the fertilization.
But before that, the unborn is not protected, the unborn is protected from conception
so before that it's not [a] regulated act.

Atty. Noche:
If Your Honor, please, before fertilization there is no person to speak of.

Justice Del Castillo:

Exactly.

Atty. Noche:
There is no fertilized ovum, to speak of, mere is no unborn that needs any protection,
Your Honor, at least, under Section 12. So, really the protection that we are referring to
under Section 12 is protection that starts from conception. That is when we say they're
already a person in that fertilized ovum mat the Constitution mandates, that the State
protects, Your Honor.

Justice Del Castillo:

I even concede mat upon the meeting of the egg and the sperm x x x mere is life
already,, it should, be protected, I concede that.

Atty. Noche:
Thank you, very much, Your Honor, for saying that because that's really life there.

Justice Del Castillo:

Thank you, Counsel.[33]
Under Section 4(a) of the RH Law, the FDA is charged with the task of determining which
contraceptives are not abortifacients:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of

a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb upon determination of the FDA. (Emphasis
supplied)

The drugs or devices, which will be approved by the FDA, will then be included in the
National Drug Formulary and Essential Drugs List as provided under Section 9 of the RH
Law:

SEC. 9. The Philippine National Drug Formulary System arid Family Planning Supplies. -
The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning
products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be
observed in selecting drugs including family planning supplies that will be included or
removed from the Essential Drugs List (EDL) in accordance .with existing practice and in
consultation with reputable medical associations in the Philippines. For the purpose of
this Act, any product or supply included or to be included in Hie EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals: Provided, further,  That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent.

Contrary to the interpretation of petitioners, Section 9 does not automatically mandate

the inclusion of hormonal contraceptives, intrauterine devices, injectables and other
safe, legal, non-abortifacient and effective family planning products and supplies in the
National Drug Formulary and Essential Drugs List. This provision should be read in
relation to Section 4(a) of the RH Law which requires the FDA to first determine whether
the subject contraceptives are non-abortifacients, among other standards (e.g., safe,
effective). The law should be construed in such a way as to avoid a declaration of
unconstitutionality.

The ]RR provides the following guidelines for such determination, viz:

Section 7.04 FDA Certification of Family Planning Supplies. The FDA must certify that a
family planning drug or device is not an abortifacient in dosages of its approved
indication (for drugs) or intended use (for devices) prior to its inclusion in the EDL. The
FDA shall observe the following guidelines in the determination of whether or not a
drug or device is an abortifacient:
 a) As defined in Section 3.01 (a) of these Rules, a drug or device is deemed to be
an abortifacient if it is proven to primarily[34] induce abortion or the destruction
of a fetus inside the mother's womb or the prevention of the fertilized, ovum,
to reach and be implanted in the mother's womb;
b) The following mechanisms do not constitute abortion: the prevention of
ovulation; the direct action on sperm cells prior to fertilization; the thickening
of cervical mucus; and any mechanism acting exclusively prior to the
fertilization of the egg by the sperm;
c) In making its determination, the FDA shall use the best evidence available,
including but not limited to: meta-analyses, systematic reviews, national clinical
practice guidelines where available, and recommendations of international
medical organizations;
d) In the presence of conflicting evidence, the more recent, better- designed, and
larger studies shall be preferred, and 1ihe conclusions found therein shall be
used to determine whether or not a drug or device is an abortifacient; and
e) Should the FDA require additional expertise in making its determination, an,
independent evidence review group (ERG) composed of leading experts in the
fields of pharmacodynamics, medical research, evidence-based medicine, and
other relevant fields may be convened to review the available evidence. The
FDA shall then issue its certification based on the recommendations of the ERG.

It is only proper for the Court to recognize that the FDA possesses the requisite technical
skills and expertise in determining whether a particular drug or device is an
abortifacient. It is also only proper that the Court accords deference to this legislative
delegation of powers to the FDA for this purpose. However, for obvious reasons, the
unborn cannot appear, on its behalf, to represent or protect its interest, bearing upon
its very right to life, when the FDA proceeds to make such a determination.

Within this framework of implementation, and given the unique status of the unborn
and the exceptional need, to protect its right to life, the Court must step in by directing
the FDA to issue the proper rules of procedure in the determination of whether a drug
or device is an abortifacient under the RH Law. Such rules must sufficiently safeguard
the right to life of the unborn. As a penumbra of its power to issue rules to protect and
enforce constitutional rights and its power to disapprove rules of procedure of quasi-
judicial bodies, the Court has the power and competency to mandate the minimum
requirements of due process in order to sufficiently safeguard the right to life of the
unborn in the proceedings that will be conducted before the FDA. This is in line with the
declared policy and numerous provisions of the RH Law according utmost respect and
protection for the right to life of the unborn.

In determining whether a drug or device is an abortifacient, the FDA will necessarily

engage in a quasi-judicial function. It will determine whether a set of facts (active
properties or mechanisms of a drug or device) comply with a legal standard (definition
of non-abortifacient) which will ultimately bear upon the right to life of the unborn.
Considering that quasi-judicial bodies involved in, say, rate-fixing follow the due process
requirements of publication, notice and hearing, where the lesser right to property is
involved, then with far greater reason should the proceedings before the FDA require
publication, notice and hearing.
Any erroneous determination the FDA makes can result to the destruction or loss of the
life of the unborn. Plainly, the life and death of countless, faceless imborns hang in the
balance. Thus, the determination should be made with utmost care where the interest
of the unborn is adequately represented.

Consequently, the Solicitor General should be mandated to represent the unborn and
the State's interest in the protection of the life of the unborn from
conception/fertilization in the proceedings before the FDA. If the Solicitor General is
made to represent the State's interest in, say, cases involving declaration of nullity of
marriage, then, again, with far greater reason, should it be made to represent the
unborn and State's interest in protecting the life of the unborn. Interested parties
should also be allowed to intervene in the proceedings for all persons have a valid and
substantial interest in the protection of the right to life of the unborn under the concept
of intergenerational responsibility.[35]

In making the aforesaid determination, the FDA should follow the strict standards laid
down in the Constitution, as adopted in the RH Law, as to what constitute allowable
contraceptives. The IRR has provided guidelines as to what constitute allowable
contraceptives but these guidelines should be applied only insofar as they do not
contravene the standard laid down in the Constitution. Given the advances in science
and medicine, drugs or devices may be developed which satisfy the guidelines in the IRR
but still result to the destruction of the unborn from fertilization. (This was the case with
the contraceptive with a fail-safe mechanism which required the voiding of the subject
qualifiers in the IRR's definition of terms, as previously discussed.)

The Constitution is always the polestar, the drug or device should not harm or destroy
the life of the unborn from conception/fertilization. Necessarily, the rule of evidence to
be followed by (lie FDA, in consonance with the Constitution, is that, in weighing the
evidence as to whether a drug or device is an abortifacient, all reasonable doubt should
be resolved in favor of the right to life of the unborn from conception/fertilization.

Finally, the other requirements of administrative due process laid down in the seminal
case of Ang Tihay v. The Court of Industrial Relations [36] should be followed.

The other details of the rules of procedure should be left to the sound discretion of the
FDA. However, the FDA must ensure that these details sufficiently safeguard the life of
the unborn.

In sum, I find that the Court should, issue an order:

(1) directing the FDA to formulate the rules of procedure in the screening, evaluation
and approval of all contraceptives that will be used under the RH Law,

(2) the rules of procedure shall contain the following minimum requirements of due
process:

(a)  publication, notice and hearing,

(b) the Solicitor General shall be mandated to represent the unborn and the State's
interest in the protection of the life of the unborn,

(c) interested parties shall be allowed to intervene,

(d) the standard laid down in the Constitution, as adopted under the RH Law, as to what
constitute allowable contraceptives shall be strictly followed, i.e., those which do not
harm or destroy the life of the  unborn from conception/fertilization,

(e) in weighing the evidence, all reasonable doubts shall be resolved in favor of the right
to life of the unborn from conception/fertilization, and

(f) the other requirements of administrative due process, as summarized in Ang Tibay,
shall be complied with.

The FDA should be directed to submit these rules of procedure, within 30 days from
receipt of the Court's decision, for the Court's appropriate action.

The FDA should be directed to inform

this Court as to whether the contraceptives
that it previously approved and is currently
available for use and distribution in our
jurisdiction comply with the constitutional
standard of allowable contraceptives.

In his Memorandum, the Solicitor General stated that —

49. There are currently fifty-nine (59) contraceptive drugs and seven (7) intrauterine
devices duly approved for sale by the FDA and currently available in the market x x x"

However, the Solicitor General did not categorically state that these drugs and devices
were screened, evaluated and/or tested under the standard laid down in Article II,
Section 12 of the Constitution, as adopted under Section 4(a) of RH Law. The apparent
reason for this seems to be that these dings and devices were screened, evaluated
and/or tested by the FDA prior to the enactment of the RH Law and the ruling that the
Court now categorically makes in this case.

Plainly, it would not make sense to impose strict rules of procedure for the evaluation of
contraceptives that will be used under the RH Law while allowing a possible continuing
violation of the Constitution relative to contraceptive dings and devices that were
previously approved by the FDA and are currently being used and/or distributed in our
jurisdiction.

There is, thus, an urgent necessity to determine if the aforesaid contraceptive drugs and
devices comply with the Constitution and RH Law, i.e. they do not harm or destroy the
unborn from conception/fertilization, in general, and they do not prevent the
implantation of the fertilized ovum, in particular. Also, of particular significance is
whether the FDA evaluated the currently available contraceptive drugs and devices
against the standard laid down, as discussed in a previous subsection, concerning
unallowable contraceptives which (1) do not provide a 100% guarantee of preventing
fertilization and (2) has a fail-safe mechanism which destroys the fertilized ovum if
fertilization occurs (e.g., prevents the implantation of the fertilized ovum on the uterus).

Thus, the FDA should be ordered to immediately inform this Court whether its
previously approved and the currently available contraceptive dings and devices in our
jurisdiction were screened, evaluated and/or tested against the afore-discussed general
and specific standards. It should be emphasized that the FDA is not being asked to re-
screen, re-evaluate or re-test the aforesaid contraceptive drugs and devices but only to
inform this Court if they were screened, evaluated and/or tested against the
constitutional and statutory standards that the Court upholds in this decision. Thus, this
will not take an inordinate amount of time to do considering that the files should be
readily available with the FDA. This information will allow the Court to take immediate
remedial action in order to protect and defend the life of the unborn from
conception/fertilization, if the circumstances warrant. That is, if the contraceptive drugs
or devices were not screened, evaluated and/or tested against the constitutional and
statutory standards that (lie Court upholds in this decision, then it would be necessary
to suspend their availability in the market, as a precautionary measure, in order to
protect the right to life of the unborn pending the proper screening, evaluation and/or
testing through the afore-discussed rules of procedure that the FDA is directed to issue..

It should be noted that Section 7.05 of the IRR effectively and impliedly mandates that

these existing drugs and devices be screened, evaluated and/or tested again by the FDA
against the standard or definition of abortifacient under Section 4(a) of the RFI Law. But
the serious flaw in this procedure is that, in the meantime, the aforesaid drugs and
devices shall remain available in the market pending the FDA's certification, to wit:

Section 7.05 Drugs, Supplies, and Products with Existing Certificates of Product

Registration. Upon the effectivity of these Rules, all reproductive health care drugs,
supplies, and products that have existing Certificates of Product Registration
(CPRs).from the FDA shall be provided certifications stating that they do not cause
abortion when taken in dosages for their approved indications.

Thus, if such drugs and devices, are later determined by the FDA to be an abortifacient
under the standard laid down in the Constitution, as adopted under the RFI Law, then
the loss or destruction of many unborn may have already resulted or taken place. As
previously noted, the proper course of action is to immediately determine if they were
screened, evaluated and/or tested against the afore-discussed general and specific
constitutional and statutory standards. And, if not, to immediately suspend their
availability in the market, as a precautionary measure, in order to safeguard the right to
life of the unborn pending the proper screening, evaluation and/or testing through the
afore-discussed rules of procedure that the FDA is directed to issue.

The life of the unborn should not be placed at risk any minute longer.

The DOH in coordination with all

concerned government agencies should
be directed to formulate the rules and
regulations or guidelines that will govern
the purchase and distribution/ dispensation
of the product or supply which will be
covered by the FDA's certification, under
Section 9 of the Mi Law, that said product
and supply is made available on the condition
that it is not to be used as an abortifacient.

Section 9 of the RH Law states—

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. -
The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning
products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be
observed in selecting drugs including family planning supplies that will be included or
removed from the Essential Drugs List (EDL) in accordance with existing practice and in
consultation with reputable medical associations in the Philippines. For the purpose of
this Act, any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals: Provided, further,  That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent. (Emphasis supplied)

Preliminarily, the necessity of imposing proper rules of procedure, which sufficiently

safeguards the right to life of the unborn, in the FDA's determination of what will be
considered allowable contraceptive drugs and devices upon implementation of the RH
Law, can be better appreciated if viewed within the context of Section 9 of the RH Law,
as afore-quoted. Once the FDA approves contraceptive drugs and devices like hormonal
contraceptives, intrauterine devices, injectables and other family planning products and
supplies, they will be included in the Essential Drugs List (EDL). As manifested by the
Solicitor General, only drugs and medicines found in the EDL/Philippine National Drug
Formulary System (PNDFS) may be dispensed, (whether for free or for a reduced
amount) by public health care facilities.[38] These contraceptive drugs and devices, thus,
become widely and easily accessible to the public. In fact, the IRR devolves the
distribution of these contraceptives up to the barangay level with the DOH as the lead
agency tasked, with its procurement and distribution. Thus, an erroneous determination
by the FDA has an immediate and widespread impact on the right to life of the unborn.

However, there is another even more crucial aspect in the implementation of the Rli
Law which has far greater impact on the right to life of the unborn than the FDA's
determination of what are allowable contraceptives. It is found in the proviso of Section
9 which states "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient." In other words, under this
section, products and supplies (hereinafter "subject products and supplies") which are
abortifacients (or have abortifacient properties) will also be included in the
EDL provided  that 'these products and. supplies will not be used as abortifacients as
certified by the FDA.

I share the view of the ponencia that the aforesaid certification is empty and absurd.
Such certification cannot guarantee that the subject products and supplies will not be
used as abortifacients. The ponencia modifies the phrase from "it is not to be used" to
"it cannot be used" in order to protect the right to life of the unborn.

With due respect, I am of the view that the change in wording will not alter the result.
The certification is of limited value. Even with the change in wording, there will be no
guarantee that the subject products and. supplies will not be used as abortifacients. I
submit that the proper area that should be strictly scrutinized is the implementing rules
and regulations of Section 9 relative to the purchase and distribution of the subject
products and supplies.

But before going to that, I find it necessary to discuss the rationale of this proviso in
Section 9. The Senate Journal of October 8, 2012 summarizes the discussions leading to
its final version, viz:

On page 9, line 8 of the bill, after the word "PRACTICE" and the period (.), Senator
Lacson proposed the insertion of a new sentence to read: FOR THE PURPOSE OF THIS
ACT, ANY FAMILY PLANNING PRODUCT OR SUPPLY INCLUDED OR TO BE INCLUDED IN
THE ESSENTIAL DRUG LIST MUST HAVE A CERTIFICATION FROM THE FOOD AND DRUG
ADMINISTRATION (FDA) OF THE PHILIPPINES.THAT SAID PRODUCT AND SUPPLY HAS NO
ABORTIFACIENT OR ABORTICIDE EFFECT.

Senator Cayetano (P) expressed willingness to accept the amendment, subject to style,
but she explained that there are certain medications which are effectively abortifacient
but are not used for such purpose. These medications, she explained, cannot be simply
banned because they are necessary drugs for purposes for which they were introduced
and are prescribed under very strict guidelines by a medical practitioner.

She suggested that an amendment be made to require the issuance of a certification

that such drugs should be used for their intended medical purpose and not as
abortifacient.

Citing another example, Senator Cayetano (P) said that a particular drug is being
prescribed to teenagers to treat the breakout of acne, provided an assurance is given
that the patient is not pregnant or otherwise sexually active because it could cause
severe physical abnormality to a fetus like being born without limbs. She noted that the
said drug could not be banned because it has to be used for an intended purpose.

Senator Lacson expressed apprehension that a woman who has acne and wishes to have
an abortion may take advantage of the essential drug being provided by the,
government to avail of its abortive side effect.

Senator Cayetano (P) agreed with Senator Lacson that the said essential, medicine
should not be used as abortifacients. However, she said that the medical consultants
present in the gallery point out that a number of drugs with similar effect are actually
available in the market and, banning these drugs could pose a great danger as they are
being prescribed for a particular purpose. In addition to the literature that come with
the drugs, she suggested that stronger warnings be made by health professionals that in
no case shall these drugs be prescribed and made available as abortifacients.
Upon query of Senator Lacson, Senator Cayetano (P) replied that these drugs that are
prescribed to teat very serious medical conditions have been available in the market for
the longest time such that withdrawing them from the market would be very
detrimental to llie health system in (lie country. For instance, she said that Oxylocin is
used to induce labor in conditions necessitating that the baby be delivered right away,
like in cases when llie baby's umbilical cord has encircled his/her neck. She said
that  Oxylocin is actually intended to save a baby's life: thus, it should not be given to a
two-month pregnant woman. She reiterated that withdrawing an essential medicine
such as Oxylocin from the market would totally debilitate the maternity health care
system.

Asked how it could be ensured that such and similar drugs would not be used as
abortifacients. Senator Cayetano (P) replied that a health professional who prescribes a
drug such as Oxylocin to a woman who is in her first trimester of pregnancy is clearly
prescribing it as an abortifacient and should therefore be held liable under the Revised
Penal Code.

Asked whether the government would be providing drugs such as Oxylocin Senator
Cayetano (P) said that health care providers involved in childbirth have expressed their
desire to have access to such drugs because these are essential medicines that could
actually improve maternal mortality rate since it could enable them to immediately save
the life of a child. However, she underscored the importance of ensuring that the FDA
would be very strict on its use.

At this juncture, Senator Sotto asked Senator Lacson what his particular proposed
amendment would be, Senator Lacson replied that he would like to insert a provision,
subject to style, that would ensure that the drugs cannot be used as abortifacients but
they can be used for the purpose for which they were introduced in (lie market. Senator
Sotto suggested that the Body be presented with the actual text of the amendment
before it approves it. (Emphasis supplied)

As can be seen, the purpose of including the subject products and supplies in the EDL is
their importance in treating certain diseases and/or their use as life-saving drugs. Yet, at
the same time, these products and supplies can be used as abortifacients.

The inclusion of these products and supplies in the EDL, under Section 9 of the RH Law,
will necessarily present numerous challenges. On the one hand, the State has a
substantial interest in making available the subject products and supplies in order to
treat various diseases and, in some instances, these products and supplies are necessary
to save lives. On the other hand, by allowing the subject products and supplies to be
included in the EDL, the right to life of the unborn may be jeopardized if access to these
products and supplies are easily obtained by unscrupulous individuals.

The answer to (lie problem was touched on during the legislative deliberations. It lies in
the strict regulation of these products and supplies. The IRR states:

Section 8.03 Review of Existing Guidelines. Within thirty (30) days from the effectivity of
these Rules, the DOH shall review its existing guidelines for the procurement and
distribution of reproductive health supplies and products including life-saving drugs, and
shall issue new guidelines that are consistent with, these Rules.
xxxx

Section 8.08 Logistics Management. The DOH shall be responsible for the

transportation, storage, and distribution of reproductive health products and. supplies
to their respective destinations. Upon delivery to the local government units, the
respective provincial, city, and/or municipal health officers shall assume responsibility
for the supplies and shall ensure their prompt, continuous, and equitable distribution to
all the applicable hospitals, health centers, or clinics within their respective areas of
responsibility, taking into consideration existing storage facilities and other factors that
may hinder the effective distribution/use of the said supplies.

The DOH shall designate a regional officer to oversee the supply chain management of
reproductive health supplies and/or health products in his or her respective area, as
assigned by the DOH. The officer shall promote speedy and efficient delivery of supplies,
with the end goal of expedited distribution of quality-checked health products to the
local government units. Towards this end, innovations on logistics and supply
management, such as direct delivery of goods to the points of distribution, consistent
with the intent and scope of these Rules shall be encouraged.

Provided, That where practicable, the DOH or LGUs may engage civil society
organizations or private sector distributors to accomplish the intent of this provision
subject to the provisions of applicable rules and regulations.

Within sixty (60) days from the effectivity of these Rules, the DOH shall issue guidelines
for the implementation of this provision.

Section. 8.09 LGU-initiated Procurement. An LGU may implement its own procurement,

distribution and monitoring program consistent with these Rules and the guidelines of
the DOH.

Clearly, then, the primary responsibility for the regulation of the subject products and
supplies lies with the DOIT. It is not certain whether the DOH has issued the rules and
regulations relative to the purchase and distribution of these products and supplies. The
Temporary Restraining Order (TRO) issued by this Court may have pre-empted the
issuance of the subject guidelines relative to the purchase and distribution of these
products and supplies.

But, again, pursuant to the expanded jurisdiction of this Court and as a penumbra of its
power to issue rules for the protection and enforcement of the right to life of the
unborn as well as the exceptional need to protect such life, the Court can require that,
in the promulgation by the DOH of the subject rules and regulations or guidelines,
certain minimum requirements of due process shall be followed.

I find that, under these premises, publication, notice and hearing should precede the
issuance of the rules and regulations or guidelines which will govern the purchase and
distribution of the subject products and supplies. In other words, there should be public
hearings and/or consultations. The Solicitor General should be mandated to represent
the unborn and the State's interest in the protection of the life of the unborn in these
proceedings before the DOH. And interested parties should be allowed to intervene.

Concededly, the DOH shall issue the rules and regulations or guidelines pursuant to its
quasi-legislative (not quasi-judicial) powers, however, again, mere is no obstacle to
requiring that this rule-making process be subjected to a higher degree of due process,
considering that the requirements of publication, notice and healing are mandated in,
say, the issuance of tax regulations where the lesser right to property is involved. With
far greater reason should publication, notice and hearing be mandated because the
subject rules will ultimately impact the right to life of the unborn. Also, while the Court
cannot order the DOH to submit the subject rules for the Court's appropriate action
since it involves a quasi-legislative function, there is nothing to prevent an aggrieved
party from challenging the subject rules upon its issuance, if the circumstances warrant,
based on grave abuse of discretion under the Court's expanded jurisdiction.

The rules and regulations or guidelines should provide sufficient detail as to how die
subject products and supplies will be purchased and distributed or dispensed: what
these products and. supplies are, who shall be authorized to purchase them; who shall
be authorized to store them; who shall be authorized to distribute or dispense them;
the limits of what can be distributed or dispensed by particular individuals or entities;
how the distribution or dispensation shall be strictly regulated; how accountability shall
be enforced; and so forth.

Admittedly, the formulation of the proper rules and regulations or guidelines will
necessarily present numerous challenges. The possible difficulties were already brought
out in the afore-cited legislative deliberations.

Take the example of the girl with acne. The drug that is needed to treat the acne is an
abortifacient. Several challenges will face the regulator in this regard. If the drug is given
to her by prescription, nothing will prevent the girl, upon purchasing the drug, to give
such drug to her pregnant friend who intends to have an abortion. One option that the
regulator has is to require that the drug be personally administered by her (the girl's)
physician so that there is no danger that the drug could be misused by the girl. The
regulator must weigh whether protection of the life of the unborn is greater than the
inconvenience imposed on the girl of having to frequent the clinic of her physician so
that the drug can be personally administered to her. Here, the answer is obvious
although there may be other means of regulation that can achieve the same end. Or
take the example of health workers being given life-saving drugs which may also be used
as abortifacients. The regulator now faces the challenge of how to make sure that the
health worker does not abuse the life-saving drugs that will be placed, in his or her
control and possession. This would involve, among others, strict monitoring and
inventory procedures.

I do not intend to provide definite answers to the challenges that will face regulators
relative to the regulation of the subject products and supplies. My goal is a modest one:
to point out the difficulty and complexity of the problem of regulating these products
and supplies. This provides greater reason why a higher level of due process is necessary
in the proceedings which will result to the issuance of the rules and regulations or
guidelines relative to the purchase and distribution or dispensation of the subject
products and supplies. For very easily, given the complexity or difficulty of the problem,
of regulation, the interests of the unborn may be relegated to the sidelines.

In fine, the afore-discussed minimum due process requirements are the only meaningful
way to give effect to the constitutional right to life of the unborn from
conception/fertilization under the premises. It, is worth repeating, as elsewhere stated,
that the unborn cannot represent itself in the DOH's rule-making process which will
ultimately bear upon its very right to life. Without the utmost care, transparency and
proper representation of the unborn in the DOH's proceedings, which will result to the
issuance of rules and regulations or guidelines on the purchase and distribution of the
subject products and supplies, it is not difficult to discern how easily the right to life of
the unborn may be trampled upon.

Pending the issuance and publication of these rules by the DOIT, the TRO insofar as
the proviso in Section 9 of the RIT Law, as implemented by Section 7.03 of the IRR,
relative to the subject products and supplies, which are made available on the condition
that they will not be used as an abortifacient, should remain in force.

OTHER ISSUES

With respect to the other constitutional issues raised in this case, I state my position in
what follows— concurring in some, dissenting in others— relative to the results reached
by ponencia:

2 - Right to Health

The ponencia ruled that the RH Law adequately protects the right to health.

While I agree that the right to health is not violated, 1 wish to address here in greater
detail petitioners' claims.

Article II, Section 15 in relation to Article XIII, Sections 11 to 13 of the Constitution

provides:

Section 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

xxxx Health

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all people at affordable cost. There shall be priority for the needs of
the underprivileged sick, elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory
system and undertake appropriate health manpower development and research,
responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled persons for
rehabilitation, sell-development and self-reliance, and their integration into the
mainstream of society.

The right to health is, thus, recognized as a fundamental right.

Petitioners argue that the contraceptives that will be made available under the RH Law
have grave side-effects that will adversely affect the users, especially women, in
violation of the right to health.

I find petitioners' argument unavailing.

While indeed the RH Law will make available contraceptives that may have harmful side-
effects, it is necessary to remember that the law does not impose their use upon any
person. Understandably, from petitioners' point of view, it would seem "irrational" for
(1) a person to take contraceptives, which have known harmful side effects and, in the
long term, even lead to premature death, and (2) the government to subsidize the same
in order to prevent pregnancy or to properly space childbearing given that there are
other safer means and methods of family planning. But the weighing of which value is
superior to (lie other is a matter left to the individual's sound judgment and conscience.
It is his or her choice; an axiom of liberty; an attribute of free will. Men and women are
free to make choices that harm themselves, like cigarette-smoking or excessive intake of
alcohol, in order to attain a value that they perceive is more important than their own
health and well-being. For as long as these choices are made freely (and do not harm
the unborn from conception/fertilization insofar as this case is concerned), the State
cannot intervene beyond ensuring that, the choices are well-informed absent a clear
and unequivocal constitutional or statutory[40] command permitting it to do so.

Under the RH Law, there is nothing to suggest that the contraceptives will be made
available without properly informing the target users of their possible harmful side
effects. The law itself mandates complete information-dissemination and severely
penalizes deliberate misinformation. Section 19(c) of the RH Law in relation to Sections
7.07 to 7.11 of the IRR cover this concern, viz:

SEC. 19. Duties and Responsibilities, -xxx

(c) The FDA shall issue strict guidelines with respect to the use of contraceptives, taking
into consideration the side effects or oilier harmful effects of their use.

Section 7.07 Technical Requirements for Family Planning Products. Technical

requirements for applications for product registration shall include a product insert or
information leaflet for the consumers and health care providers. Appropriate
information for the consumers, as determined by the FDA, shall be written in Filipino
and/or local languages, as appropriate. The text or wording shall be in layman's terms.
Graphics shall be used as appropriate for emphasis or guidance of the consumer using
the product: Provided, That highly technical information such as medical terminology
may be retained in its English version.

At a minimum, the information on the insert or leaflet for consumers or health

professional/worker shall include the name of the product, pharmacological category
(when applicable), use or indication, proper use, contraindications and any precaution
or health warning, and possible side effects and potential, health risks. Side effects,
adverse effects and other possible health effects shall be clearly described.

Within thirty (30) days from the effectivity of these Rules, the FDA shall develop
guidelines for the implementation of this provision.

Section 7.08 Provision of Product Information. The FDA shall provide the public access
to information regarding a registered reproductive health product. Among others, the
FDA shall post in its website all approved reproductive health products (generic and
branded) with all relevant information relevant to proper use, safety and effectiveness
of the product, including possible side effects and adverse reactions or events. As
appropriate, the FDA shall issue an advisory to inform the consumers about relevant
developments regarding these products.

Section 7.09 Post-Marketing Surveillance. All reproductive health products shall be

subjected to Post-Marketing Surveillance (PMS) in the country. The PMS shall include,
but not be limited to: examining the health risk to the patient, and the risk of pregnancy
because of contraceptive failure.

The FDA shall have a sub-unit dedicated to reproductive health products under the
Adverse Drug Reaction Unit who will monitor and act on any adverse reaction or event
reported by consumers and health professionals or workers. The system for reporting
adverse drug reactions/events shall include online reporting at the FDA and DOH
website, along with established reporting mechanisms, among others.

Companies with registered products shall be required to have a Post-Marketing

Surveillance department, division, section, unit or group mat will monitor and
investigate all health-related reactions or risks, or failure of the product to prevent
pregnancy.

Section 7.10 Product Monitoring. To ensure the stability, safety, and efficacy of

reproductive health products, (he FDA shall oversee the provider and/or distributor's
compliance with proper distribution, storage, and handling protocols. Tliis shall be done
in coordination with private or public reproductive health programs, and the company
providing the supplies. The FDA inspectors shall inspect outlets for proper storage and
handling of products and supplies, and act on complaints in the field in coordination
with the office of the Deputy Director General for Field Office.

Section 7.11 Renewal of Product Registration. In the renewal of product registration of

reproductive health products, the FDA shall consider, among others, the following: the
Adverse Drug Reaction / Adverse Event Reports, PMS reports, and studies on the safety
and effectiveness conducted by the PMS unit of the product company.

Section 7.12 Denial or Revocation of Product Registration. After the careful evaluation of

PMS data and other supporting evidence, the FDA shall deny or revoke the registration
of reproductive health, products that are ineffective or have undesired side effects that
may be found during testing, clinical trials and their general use.

We must, thus, reasonably presume that the health service provider will adequately
inform the potential users of the contraceptives as to its possible harmful side effects. In
any event, petitioners may come before the courts, at the proper time, if, in the
implementation of the law, the right to health of the users of the contraceptives are not
properly protected because they are given inaccurate information on the
contraceptives' possible harmful effects.

3 - Freedom of Religion
3.a- Establishment Clause

I agree with the ponencia that the RH Law does not violate the Establishment Clause for
the reasons stated in the ponencia.

3.b- Free Exercise Clause vis-a-vis

the Duty to Inform [Section 23(a)(l)l and
the Duty to Refer fSection 23(a)(3)|

I shall jointly discuss the constitutional validity of the duty to inform and duty to refer
under the RH Law because they are intricately related to each other.

The ponencia ruled that the duty to inform and duty to refer imposed on the
conscientious objector is unconstitutional for being violative of the Free Exercise of
Religion Clause, to wit:

Resultantly, the Court finds no compelling state interest which would limit the free
exercise clause of the conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable.

xxxx

Apparently, in these cases, there is no immediate danger to the life or health of an
individual in the perceived scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their children refers to a future
event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she decides to become
pregnant at all. On the other hand, the burden placed upon those who object to
contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector's religious freedom, the respondent have failed to demonstrate
"the gravest abuses, endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the respondents has not
presented any government effort exerted to show that the means it seeks to achieve its
legitimate state objective is the least intrusive means. Other than the assertion that the
act of referring would only be momentary, considering that the act of referral by
conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without violating the rights of the
conscientious objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform an act in
utter reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.

xxxx

The Court need not belabor the issue of whether the right to be exempt from being
obligated to render reproductive health service and modern family planning methods,
includes exemption from being obligated to give reproductive health .information and
to render reproductive health procedures. Clearly, subject to the qualifications and
exemptions earlier discussed, the right to be exempt from being obligated to render
reproductive health service and modern family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and to render
reproductive health procedures. The terms "service" and "methods" are broad enough
to include the providing of information and the rendering of medical procedures.[41]

I agree that the duty to refer, under pain of penal liability, placed on the conscientious
objector is unconstitutional, however, I find that the conscientious objector's duty to
inform is constitutional.

To place the Free Exercise of Religion Clause challenge in its proper context, it is
necessary to distinguish two key concepts in the RH Law: (1) the duty to inform, and (2)
the duty to refer.

The main provisions[42] on the duty to inform and duty to refer vis-a-vis the
conscientious objector is found in Section 23(a)(l) in relation to 23(a)(3) of the RH
Law, viz:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

xxxx

(3) Refuse to extend quality health care services and information on account of the
person's rnaritf.il status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and services
to another health care service provider within the same facility or one which is
conveniently accessible: Provided, further, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal, of hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases;

The duty to inform is embodied in the above-quoted Section 23(a)(l), which penalizes a
public or private health care service provider for: (1) knowingly withholding information
or restricting the dissemination of information, and/or (2) intentionally providing
incorrect information; where "information" pertains to the programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods.

This provision, thus, seeks to ensure that all persons, who are qualified to avail of the
benefits provided by the law, shall be given complete and correct  information on the
reproductive health programs and services of the government under the RH Law. It does
not provide any exception to the duty to inform. Thus, a conscientious objector is
mandated to provide complete and correct information even if this will include
information on artificial contraceptives to which he or she objects to on religious
grounds. Otherwise, he or she shall suffer the penal liability under the law.

The duty to refer, on the other hand, is provided in the proviso of Section 23(a)(3),
which is likewise quoted above. This provision penalizes a public or private health care
service provider for refusing to extend quality health care services and information on
account of a person's marital status, gender, age, religious convictions, personal
circumstances, or nature of work. However, it respects the right of the conscientious
objector by permitting him or her to refuse to perform or provide the health care
services, to which he or she objects to on religious or ethical grounds provided that he
or she immediately refers the person seeking such care and services to another health
care service provider within the same facility or one which is conveniently accessible. As
an exception to the exception, the conscientious objector cannot refuse to perform or
provide such health care services if it involves an emergency condition or serious case
under Republic Act No. 8344.[43]

It should be noted that the first sentence of Section 23(a)(3) of the RH Law refers to the
refusal to extend quality health care services and information. However, the proviso in
the aforesaid section, which imposes the duty to refer on the conscientious objector, is
limited to referring the person to another health care service provider for purposes of
availing health care services only, not health care services  and information. The
implication is that the conscientious objector is required to provide complete and
correct information, and, in the event that the person asks for health care services that
the conscientious objector objects to on religious or ethical grounds, the conscientious
objector has the duty to refer the person to another health care service provider. This
interpretation is in accord with the wording of Section 23(a)(l) of the RH Law, which
provides no exceptions to the duty to inform.

It should be further noted, and not insignificantly, that Section 23(a)(3) of the RH Law
does not state that the conscientious objector should refer the person to another health
care service provider who can perform or provide the heath care services to which the
conscientious objector objects to on religious or ethical grounds. Thus, a literal reading
of this provision would permit the conscientious objector to refer the person to another
health care service provider who is himself a conscientious objector. The IRR attempts
to fill tliis ambiguity in Section 5.24(b) to (e) thereof, viz:

Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled health professional shall comply with the
following requirements:

xxxx

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within (lie same facility;

c) If within the same health facility, there is no other stalled health professional or
volunteer willing' and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider mat is conveniently accessible in consideration of the client's travel
arrangements and financial capacity;

d) Written documentation of compliance with, the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where die public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay, x x x

This notwithstanding, and for purposes of the succeeding discussion on the Free
Exercise of Religion Clause, the necessary premise is that the duty to refer involves
referring the person to another health care service provider who will perform or provide
the health care services to which the conscientious objector objects to on religious or
ethical grounds. Though this is not explicitly stated in the RH Law, the law must be so
reasonably construed given the policy of the law to provide universal access to modern
methods of family planning.

As noted earlier, the duty to inform and the duty to refer are intricately related. The
reason is that the duty to inform will normally precede the duty to refer. The process of
availing reproductive health programs and services under the RH Law may be divided
into two phases.

In the first phase, the person, who goes to a health service provider to inquire about the
government's reproductive health programs and services under the RH Law, will be
provided with complete and correct information thereon, including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and
effective family planning methods.

In the second phase, after receiving the information, the person would then ordinarily
reach a decision on which reproductive health programs and services, if any, he or she
wishes to avail. Once he or she makes a decision, he or she now asks the health service
provider where and how he or she can avail of these programs or services.

From the point of view of the health care service provider, the first phase involves the
transmission of information. Petitioners claim that this act of giving complete and
correct information, including information on artificial contraceptives, imposes a burden
on a conscientious objector, like a Catholic doctor, because he or she is required to give
information on artificial contraceptives which he or she believes to be immoral or
wrong.

I disagree.

Petitioners failed to convincingly show mat the act of giving complete and correct
information, including those on artificial contraceptives, burdens a Catholic doctor's
religious .beliefs. Note that the law merely requires the health service provider to
give complete  and correct information. Presumably this can even be done by simply
giving the person a handout containing the list of the government's reproductive health
programs and services under the RH Law. The valid secular purpose of the duty to
inform is readily apparent and the State interest in ensuring complete and correct
information is direct and substantial in order that the person may make an informed
and free choice.

The law does not command the health service provider to endorse a particular family
planning method but merely requires the presentation of complete and correct
information so that the person can make an informed choice. A conscientious objector,
like a Catholic doctor, is, thus, not compelled to endorse artificial contraceptives as the
preferred family planning method. On its face, therefore, there appears to be no burden
imposed on the conscientious objector under die duty to inform.

To my mind, to successfully claim that a conscientious objector, like a Catholic doctor, is

burdened by the duty to inform, petitioners should have demonstrated that, for a
Catholic doctor, the mere mention of artificial contraceptives (what they are and how
they work) to the person is immoral under the tenets of the Catholic faith. In the case at
bar, petitioners failed to carry this onus. Moreover, after providing the complete and
correct information as mandated by the 'RH Law, there is nothing to prevent the
conscientious objector, like a Catholic doctor, from speaking against artificial
contraceptives on religious or ethical grounds because the RH Law cannot curtail
freedom of speech; the Constitution is deemed written into the law.

For the foregoing reasons, I find, that petitioners failed to clearly show that the act of
giving complete and. correct information on reproductive health programs and services
under the RH Law burdens a conscientious objector's religious beliefs. Thus, I find that
the duty to inform under Section 23(a)(l) of the RH Law is constitutional even with
respect to the conscientious objector. In other words, the conscientious objector has
the duty to inform under the aforesaid section.

I now turn to the duty to refer. As already mentioned, I reach an opposite result here.
The central reason is that the second, phase involves a crucial distinguishing feature
from the first phase. In the first phase, the person merely receives the complete and.
correct information from the health service provider but, in the second case, the person
now decides to act on the information. He or she makes a decision to avail of one or
more of the government's reproductive health programs and services under the RH Law.
In case the person seeks to avail of a program or service which the conscientious
objector objects to on religious or ethical grounds, Section 23(a)(3) imposes on the
conscientious objector the duty to refer the person to a health service provider who can
perform or provide such program and service.

This is an entirely different scenario. The person has already made a decision and now
seeks to accomplish, an act which the conscientious objector considers immoral or
wrong on religious or ethical grounds. When the RH Law compels the conscientious
objector to make such a referral, under pain of penal liability, the religious or ethical
beliefs of the conscientious objector is clearly burdened because he or she is made to
either (1) join in this intention or (2) aid in the accomplishment of this intention which
he or she considers immoral or wrong.

To illustrate, a Catholic doctor, who objects to the use of artificial contraceptives, is

compelled to refer a person who seeks such services to another health care service
provider who will, in turn, perform or provide services related to artificial contraception.
In such a case, the Catholic doctor is effectively commanded to either (1) join in the
intention of the person to use artificial contraceptives or (2) aid in the accomplishment
of this intention. From another perspective, the Catholic doctor may view the referral as
an essential link in the chain of events which would lead to the availment of the person
of such artificial contraceptives.

Consequently, in the above scenario, I am of the view that the religious or ethical beliefs
of the conscientious objector are clearly burdened by the duty to refer, thus, calling for
the application of the test enunciated in Estrada v. Escritor[44] to wit:

1. The sincerity and centrality of the religious belief and practice;

2. The State's compelling interest to override the conscientious objector's religious

belief and practice; and

3. The means the  State adopts in pursuing its interest is the least restrictive to the
exercise of religious freedom.[45]

Anent the first test, insofar as the Catholic health service provider is concerned vis-a-
vis the use of artificial contraceptives, I find that petitioners have met the sincerity and
centrality test. The Catholic Church's teaching on the use of artificial contraceptives as
immoral, evil or sin is of time immemorial and well documented. Its sincerity and
centrality to the Catholic faith cannot be seriously doubted as a papal
encyclical, Humanae Vitae, has even been principally devoted to re-stating or expressing
the Catholic Church's teaching on artificial contraceptives, to wit:

Faithfulness to Gad's Design

13. Men rightly observe that a conjugal act imposed on one's partner without regard to
his or her condition or personal and reasonable wishes in matter, is no true act of love,
and therefore offends the moral order in its particular application to the intimate
relationship of husband and wife. If they further reflect, they must also recognize that
an act of mutual love which impairs the capacity to transmit life which God the Creator,
through specific laws, has built into it, frustrates His design which constitutes the norm
of marriage, and contradicts (lie will of the Author of life. Hence to use this divine gift
while depriving it even if only partially, of its meaning and purpose, is equally repugnant
to the nature of man and of woman, and is consequently in opposition to the plan of
God and His holy will. But to experience the gilt of married love while respecting the
laws of conception is to acknowledge that one is not the master of the sources of life
but rather the minister of the design established by the Creator. Just as man does not
have unlimited dominion over his body in general, so also, and with more particular
reason, he has no such dominion over his specifically sexual faculties, for these are
concerned by their very nature with the generation of life, of which God is the source.
"Human life is sacred—all men must recognize that fact," Our predecessor Pope John
XXIII recalled. "From its very inception it reveals the creating hand of God." (13)

Unlawful Birth Control Methods

14. Therefore We base Our words on the first principles of a human and Christian
doctrine of marriage when We are obliged once more to declare mat (lie direct
interruption of the generative process already begun and, above all, all direct abortion,
even for therapeutic reasons, are to be absolutely excluded as lawful means of
regulating the number of children. (14) Equally to be condemned, as the magisterium of
the Church has affirmed on many occasions, is direct sterilization, whether of the man
or of'the woman, whether permanent or temporary. (15)

Similarly excluded is any action which either before, at the moment of, or after sexual
intercourse, is specifically intended to prevent procreation— whether as an end or as a
means. (16)

Neither is it valid to argue, as a justification for sexual intercourse which is deliberately

contraceptive, that a lesser evil is to be preferred to a greater one, or mat such
intercourse would merge with procreative acts of past and future to form a single entity,
and so be qualified by exactly the same moral goodness as these. Though it is true mat
sometimes it is lawful to tolerate a lesser moral evil in order to avoid a greater evil or in
order to promote a greater good," it is never lawful, even for the gravest reasons, to do
evil that good may come of it (18)—in other words, to intend directly something which
of its very nature contradicts the moral order, and which must therefore be judged
unworthy of man, even though the intention is to protect or promote the welfare of an
individual, of a family or of society in general. Consequently, it is a serious error to think
that a whole married life of otherwise normal relations can justify sexual intercourse
which is deliberately contraceptive and so intrinsically wrong.[46]

Because petitioners have met the first test, the burden shifts to the government to meet
the last two tests in order for the constitutional validity of the duty to refer to pass
muster.

Anent the second test, the government failed to establish a compelling State interest to
justify the duty to refer under pain of penalty. The purpose of the duty to refer is to
facilitate the availment of the government's reproductive health programs and services.
That is, it is logically more convenient that, after receiving complete and correct
information on the government's reproductive health programs and services from a
conscientious objector, the person should be readily referred to another health service
provider who can perform or provide the chosen program or service to which the
conscientious objector objects to on religious grounds.

The primary State interest, therefore, that the duty to refer serves is the facility of
availing such programs and services or, in short, the person's convenience. Put another
way, if there were no duty to refer and, thus, the conscientious objector is allowed to
say to the person, "Sorry, I do not know of and/or cannot refer you to such a health
service provider because I would be helping you to accomplish something that I consider
immoral or wrong," then, at most, the person suffers the inconvenience of having to
look for the proper health service provider, on his or her own, who can provide or
perform the chosen program or service. Plainly, 'the person's convenience cannot
override the conscientious objector's religious freedom; a right founded on respect for
the inviolability of the human conscience.[47]

Anent the third test, which is intimately related to the second test, there are clearly
other means to achieve the purpose of the duty to refer. Upon the implementation of
the RH Law, through Sections 5.22,48 5.23,49 and 5.24[50] of the IRR, the government
will already be able to identify both conscientious objectors and non-conscientious
objectors. It can, therefore, map out an effective strategy to inform all potential patients
or target beneficiaries where they can avail of the complete reproductive health
programs and services under the RH Law (which refer simply to the identity and location
of all non-conscientious objector health service providers). This is well-within the State's
administrative and logistical capability given its enormous machinery and the mandate
of Section 20 of the RH Law, which provides that:

"SEC. 20. Public Awareness. - The |)OH and the LGUs shall initiate and sustain a
heightened nationwide miltimedia-carnpaign to raise the level of public awareness on
the protection and promotion of reproductive health and rights including, but not
limited to, maternal health and nutrition, family planning and responsible parenthood
information and services, adolescent and youth reproductive health, guidance and
counseling and other elements of reproductive health care 'under Section 4(q).

Education and information materials to be developed and disseminated to ensure their

effectiveness and for this purpose shall be reviewed regularly relevance."

The information, then, as to which I health service provider is not a conscientious

objector can easily be disseminated through the information campaign of the
government without having to burden the conscientious objector with the duty to refer.

Based on the foregoing, the duty to refer fails to meet the criteria set in Estrada v.
Escrilor.[51] Thus, it is unconstitutional.

Before closing the discussion on the duty to inform and the duty to refer, I wish to
highlight the preferred status that religious freedom occupies in the hierarchy of
constitutional rights by way of analogy. Let us assume that the State promulgates a law
which subsidizes the purchase of weapons due to rising criminality. The law requires
store owners, in the business of selling such weapons, to fully inform their buyers of the
available weapons subsidized by the government. A store owner is, thus, required to
inform a buyer that the following are the government subsidized, weapons: knives and
guns. The store owner would have no problem acceding to this duty to inform. But
suppose, one day, a buyer comes to Ms store and says that he wants to buy a gun in
order to kill or murder his neighbor. The store owner, assuming he acts in accordance
with his conscience, would ordinarily refuse to sell the gun. If the law, however, requires
the store owner to refer the buyer to another store where the buyer can avail of this
gun, despite the latter's motive for buying the gun, would this not impose a burden on
the conscience of the store owner?

To a non-believer, the matter of the duty to refer relative to, say, artificial
contraceptives may seem too inconsequential to merit constitutional protection. But the
Court cannot judge the truth or falsity of a religious belief nor the seriousness of the
consequences that its violation brings upon the conscience of the believer. For to the
believer, referring a person to a health service provider where the latter can avail of
artificial contraceptives may be of the same or similar level as referring a person to a
store owner where he can purchase a gun to kill or murder his neighbor. It constitutes a
breach of his or her covenant relationship with his or her God, and, thus, affects his or
her eternal destiny. That, precisely, is the province of the Free Exercise of Religion
Clause. That the believer may not have to choose between his or her earthly freedom
(imprisonment) and his or her eternal destination.

In view of the foregoing, I find that the duty to refer imposed on the conscientious
objector under Sections 7 and 23(a)(3) of the RH Law is unconstitutional for violating the
Free Exercise of Religion Clause. Consequently, the phrase, "Provided, farther, That
these hospitals shall immediately refer the person seeldng such care and services to
another health facility which is conveniently accessible," in Section 7 and the
phrase, "however, the conscientious objector shall immediately refer the person seeking
such care and services to another health care service provider within the same facility or
one which is conveniently accessible" in Section 23(a)(3) of the RH Law should be
declared void. Consequently, Sections 5.24(b) to (e) and 5.25 of the IRR, which
implements me aforesaid provisions of the RH Law, are void.

In another vein, I agree with the ponencia that the last paragraph of Section 5.24 of the
IRR is ultra vires because it effectively amends Section 4(n) in relation to Section 23(a)(3)
of the RH Law.

Under Section 4(n) of the RH Law, a public health care service provider is defined as
follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
defined as follows:

(n) Public health care service provider refers to: (1) public health care institution, which
is duly licensed and accredited and devoted primarily to the maintenance and operation
of facilities for health promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public health care professional, who is
a doctor of medicine, a nurse or a midwife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone
training programs under any accredited government and NGO and who voluntarily
renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines
promulgated by the Department of Health (DOH).

While last paragraph of Section 5.24 of the IRR states:

Provided, That skilled health professionals such as provincial, city, or municipal health

officer's, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of die RPRH Act and these Rules, cannot be considered as conscientious objectors.
(Emphasis supplied)

The above-enumerated skilled health professionals fall within the definition of a "public
health care service provider" under Section 4(n) of the RH Law. Under Section 23(a)(3)
of the RH Law, both, public and private health service providers may invoke the right of
a conscientious objector. The last paragraph of Section 5.24 of the IRR is, thus, void
insofar as it deprives the skilled health professionals enumerated therein, from the right
to conscientious objection.

I also agree with the ponencia mat the last paragraph of Section 5.24 of the IRR is
unconstitutional for being violative of the Equal Protection Clause although I find that
the proper standard of review is the strict scrutiny test.

The IRR effectively creates two classes with differential treatment with respect to the
capacity to invoke the right of a conscientious objector: (1) skilled health professionals
such as provincial, city, or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RH Law and its IRR, and (2)
skilled health professionals not belonging to (1). Those belonging to the first class
cannot invoke the right of a conscientious objector while those in the second class are
granted that right.

In our jurisdiction, equal protection analysis has generally followed the rational basis
test coupled with a deferential attitude to legislative classifications and a reluctance to
invalidate a law absent a clear and unequivocal showing of a breach, of the Constitution.
[52]
 However, when the classification burdens a suspect class or impinges on
fundamental rights, the proper standard of review is the strict scrutiny test.[53]

Under the strict scrutiny test, the government must show a compelling or overriding end
to justify either: (1) the limitation on fundamental rights or (2) the implication of suspect
classes.[54] The classification will only be upheld if it is shown to be suitably tailored to
serve a compelling State interest.[55] Suspect classes include classifications based on
race, nationality, alienage or denominational preference while classifications impinging
on fundamental rights include those affecting marriage, procreation, voting, speech and
interstate travel.[56]

Here, the classification impinges on the fundamental right of free exercise of religion, as
operationalized through the right of a conscientious objector, which the RH Law
recognizes and respects. The government must, therefore, show that the differential
treatment between .the first class and second class of skilled health professionals serves
a compelling State interest.

I find that the State has failed to prove how curtailing the right of conscientious
objection of those belonging to the first class will further a compelling State interest.
One perceptible reason for depriving the right of conscientious objection to those
belonging to the first class appears to be the fear that this will paralyze or substantially
degrade the effective implementation of the RH Law considering that these skilled
health professionals are employed in public health institutions and local government
units.

This fear rests on at least two assumptions: (1) most, if not all, skilled health
professionals belonging to the first class are conscientious objectors, and (2) the State is
incapable of securing the services of an adequate number of skilled health professionals
who are not conscientious objectors. Both assumptions have not been proven by the
State. And, even if it were so proven, it must be recalled that the right of the
conscientious objector is a limited one: he or she may refuse to perform or provide
reproductive health services to which he or she objects to on religious grounds. In such
a case, the solution is for the person to avail of such services elsewhere. Consequently,
the State would now have to show that the inconvenience caused on the part of the
person, who must secure such services elsewhere (which could be as near as the doctor
in the next room or as far-flung as the doctor in another province or region) overrides
the freedom of religion of conscientious objectors belonging to the first class. As earlier
noted, it is self-evident that the person's convenience cannot override the freedom of
religion of the conscientious objector; a constitutionally protected right predicated on
respect for the inviolability of the human conscience. (Even if this inconvenience would
entail, for example, added transportation costs, it cannot be seriously argued that one
can place a monetary value on the inviolability of the human conscience.)

Hence, I find that the last paragraph of Section 5.24 of the IRR is unconstitutional on
equal protection grounds.

3.c- Family Planning Seminars

I agree with the ponencia. that Section 15 of the RH Law mandating a family planning
seminar as a condition for the issuance of a marriage license is constitutional for reasons
stated in the ponencia.

4- The Family Planning And The Right To Privacy

4.a. Decision-making by the spouses 

I agree with the ponencia that Section 23(a)(2)(i) of the RH Law is unconstitutional but

for different reasons.

The ponencia, ruled that the aforesaid provision contravenes Article XV, Section 3 of the
Constitution and the constitutional right to privacy of the spouses relative to the
decision-making process on whether one spouse should undergo a reproductive health
procedure like tubal ligation and vasectomy. According to the ponencia, the decision-
making process on reproductive health procedures must involve both spouses, that is,
the decision belongs exclusively to both spouses, in consonance with the right of the
spouses to found a family. Otherwise, this will destroy family unity. Further, this process
involves a private matter that the State cannot intrude into without violating the
constitutional right to marital privacy. The spouses must, thus, be left alone to chart
their own destiny.

Section 23(a)(2)(i) of the RH Law provides that:

"SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall;

xxxx

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal, age on the ground of lack of consent or authorization of the following
persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of

disagreement, the decision of the one undergoing the procedure shall prevail; x x x
(Emphasis supplied)

This provision contemplates a situation where the spouses are unable to agree if one of
them should undergo a reproductive health procedure like tubal ligation or vasectomy.
It does not dispense with consulting the other spouse but provides a mechanism to
settle the disagreement, if one should arise.

Indeed, the decision-making process in this area is a delicate and private matter
intimately related to the founding of a family. The matter should, thus, be decided by
both spouses under the assumption that they will amicably settle their differences and
forthwith act in the best interest of the marriage and family. But, as in all relations
between and among individuals, irreconcilable disagreements may arise. The law,
therefore, steps in to break the impasse.

The law, however, settles the dispute by giving the spouse, who will undergo the
procedure, the absolute and final authority to decide the matter. The rationale seems to
be that the spouse, who will undergo the procedure, should ultimately make the
decision since it involves his or her body.

Like the ponencia, I am of the view that this provision in the RH Law clearly violates
Article II, Section 12 in relation to Article XV, Sections 1 and 3(1) of the Constitution,
which are quoted hereunder:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution, x x x

xxxx

Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development,
xxx
xxxx

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood; x x x

Taken together, these constitutional provisions are intended to, among others, prohibit
the State from adopting measures which impair the solidarity of the Filipino family.57 In
particular, Section 3(1) explicitly guarantees the right of the spouses to found a family in
accordance with their religious convictions and the demands of responsible parenthood.
This necessarily refers to, among others, the number of children that the spouses will
bring into this world.

The provision speaks of this right as properly belonging to both spouses. The right is,
thus, conferred on both of them and they are to exercise this right jointly. Implicit in this
provision is mat the spouses equally possess this right particularly when read in light of
Article II, Section 1458 of the Constitution which enjoins the State to ensure the
fundamental equality before the law of women and men.

Thus, the spouse, who will undergo the reproductive health procedure, cannot be given
the absolute and final authority to decide this matter because it will destroy the
solidarity of the family, in general, and do violence to the equal right of each spouse to
found the family in accordance with their religious convictions and the demands of
responsible parenthood, in particular.

My disagreement with the ruling of the ponencia, however, is that it falls on the other
extreme. When the ponencia states that the aforesaid decision-making process must be
settled through the spouses' mutual consent and that the State cannot intrude in such,
process because of the right to marital privacy, the implicit result is that the other
spouse, who refuses to give his or her consent, is given the absolute and final authority
to decide this matter. In other words, the result reached by the, ponencia is merely the
opposite of that under the RH Law. That is, the non-consenting spouse is effectively
given the absolute and final authority in the decision-making process.

I find this result equally repugnant to the afore-discussed constitutional provisions.

To my mind, the State can intervene in marital rights and obligations when there are
genuine and serious disagreements between the spouses. This is a basic postulate of our
Constitution relative to marriage and family relations as well as our existing family laws
and rules of procedure. The constitutional right to privacy does not apply in this
situation because the conflict of rights and obligations is between one spouse and the
other, and does not involve a dispute between the State and the spouses,

This view is consistent with the provisions of the Family Code on dispute resolution
between spouses which preserves and adheres to the constitutional precept on the
solidarity of the family and the right, belonging to both spouses, to found the family.
State intervention, which provides the solution to the problem, involves calling upon the
courts to ultimately settle the dispute in case of disagreement between the spouses. To
illustrate, the Family Code explicitly provides how disagreements shall be settled in
various marital and family relations' controversies, to wit:

ARTICLE 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However,
such exemption shall not apply if the same is not compatible with the solidarity of the
family.

xxxx

ARTICLE 73. Either spouse may exercise any legitimate profession, occupation, business
or activity without the consent of the other. The latter may object only on valid, serious,
and moral grounds.

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper, and

(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit
accrued prior to the objection, the resulting obligation shall be enforced against the
separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good
faith.

xxxx

ARTICLE 96. The administration and enjoyment of the community property shall belong
to both spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed
of within five years from the date of the contract implementing such decision, x x x

xxxx

ARTICLE 211. The father and the mother shall jointly exercise parental authority over
the persons of their common children. In case of disagreement, the father's decision
shall prevail, unless there is a judicial order to the contrary.

xxxx

ARTICLE 225. The father and the mother shall jointly exercise legal guardianship over the
property of their unemancipated common child without the necessity of a court
appointment. In case of disagreement, the lather's decision shall prevail, unless there
is a judicial order to the contrary. (Emphasis supplied)

While there appears to be no law prior to the RH Law specifically dealing with the

decision-making process on undergoing reproductive health procedures by one spouse,
there is no obstacle to the application of the above principle (i.e., "in case of
disagreement, the court will decide") because such decision-making process is properly
subsumed in the mass of marital rights and obligations, and the general principles
governing them, provided in our Constitution and family laws and is, therefore, within
the ambit of the judicial power of courts to settle actual controversies involving rights
which are legally demandable and enforceable. The principle of "in case of
disagreement, the court will decide" properly governs how conflicts involving marital
rights and obligations shall be resolved, without giving to one spouse the absolute and
final authority to resolve the conflict, and, thus, preserving the equal, right of the
spouses to found the family and maintaining the solidarity of the family in consonance
with the Constitution.

Of course, unlike most of the above-quoted Family Code provisions, neither the
husband nor wife's decision in this particular situation can, in the meantime, prevail
considering that the effects of the reproductive healtli procedures may be permanent or
irreversible. Thus, the decision-making process on undergoing reproductive health
procedures by one spouse requires the consent of both spouses but, in case of
disagreement, the courts will decide.

The key principle is that no spouse has the absolute and final authority to decide this
matter because it will run counter to the constitutional edict protecting the solidarity of
the family and equally conferring the right to found the family on both spouses.
Consequently, while I agree that Section 23(a)(2)(i) of the RH Law is unconstitutional,
the declaration of unconstitutionality should not be construed as giving the non-
consenting spouse the absolute and final authority in the decision-making process
relative to undergoing a reproductive health procedure by one spouse. The proper state
of the law and rules of procedure on the matter is that the decision shall require the
consent of both spouses, and, in case of disagreement, the matter shall be brought
before the courts for its just adjudication.

4.b. - The need of parental consent

I agree with the ponencia that the phrase, "except when the minor is already a parent or
has had a miscarriage," in Section 7 of the RH Law is unconstitutional but for different
reasons. This provision states, in part, that:

SEC. 7. Access to Family Planning. - x x x

No person shall be denied information find access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern
methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
(Emphasis supplied)

Article II, Section 12 of the Constitution states, in part:

Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution, x x x

The description of the family as a "basic" social institution is "an assertion that the
family is anterior to the state and is not a creature of the state"[60] while the reference to
the family as "autonomous" is "meant to protect the family against the
instrumentalization by the state." This provision is, thus, a guarantee against
unwarranted State intrusion on matters dealing with family life.

The subject of parental authority and responsibility is specifically dealt with in the last
sentence of the above constitutional provision which reads:

The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.

As a natural right, parental, authority is recognized as an inherent right, not created by

the State or decisions of the courts, but derives from the nature of the parental
relationship.  More important, as pertinent in this controversy, the present Constitution
refers to such right as "primary" which "imports the assertion that the right of parents is
superior to that of the state."[63]

Title IX of the Family Code is the principal governing law on parental authority. Chapter
3, Section 220 thereof provides:

Chapters. Effect of Parental Authority Upon the Persons of Children

ARTICLE 220, The parents and those exercising parental authority shall have with,
respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for their upbringing in keeping with their
means:

(2) To give them love and affection, advice and counsel, companionship and
understanding;

(3) To provide them with moral, and spiritual guidance, inculcate in them honesty,
integrity, sell-discipline, self-reliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their physical, and mental health at all
times;

(5) To furnish them with good and wholesome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and
prevent them from acquiring habits detrimental to their health, studies and morals;

(6) To represent them in all matters affecting their interests;

(7) To demand from them respect and obedience;

(8) To impose discipline on them as may be required under the circumstances; and
(9) To perform such other duties as are imposed by law upon parents and guardians.

As can be seen from the foregoing, the constitutional and statutory recognition of

parental authority (for as afore-stated such authority precedes the State and laws) is
broad and indivisible, full and complete in all matters relating to the rearing and care of
minors in order to promote their welfare and best interest. Further, the deprivation or
loss of parental: authority, which is governed by the judicial process, crises only in
exceptional cases when the best interest of the minor so requires. There is, therefore,
an inherent public policy recognizing the necessity of keeping parental authority intact
and shielding it from undue State intrusion or interference.

Viewed in this light, Section 7 of the RH Law is a radical departure from, the afore-
discussed public policy as embodied in our Constitution and family laws. The decision on
access to modern methods of family planning by minors evidently falls within the ambit
of parental authority, in general, and Article 220 of the Family Code, in particular, which
recognizes the parents' right and duty to provide advice and counsel, moral and spiritual
guidance, as well as to protect, preserve and maintain the minor's physical and mental
health. It cannot be doubted that the use of modern methods of family planning by a
minor will greatly impact his or her physical, mental, moral, social and spiritual life. And
yet Section 7 would, exempt such a decision by a minor, who is already a parent or has
had a miscarriage, from parental authority by allowing access to modern methods of
family planning without parental consent.

I find that this proviso in the RH Law is unconstitutional in view of the nature and scope
of parental authority.

Because parental authority is a constitutionally recognized natural and primary right of

the parents, with emphasis on "primary" as giving parents a superior right over the
State, the State cannot carve out an exception to such authority without showing or
providing a sufficiently compelling State interest to do so. A limited but blanket
exception from parental authority, such as that found in Section 7 of the RH Law, will
undoubtedly destroy the solidarity of the family as well as foster disrespect and
disobedience on the part of the minor. It disrupts the natural state of parent-child
relationship and is wholly inconsistent with the purpose and essence of parental
authority granting the parents the natural and primary right in all  matters relating to the
rearing and care of the minor in, order to safeguard Ms or her well-being.

In the case at bar, the State failed to prove such sufficiently compelling State interest.
The rationale of Section 7 seems to be mat a minor, who is already a parent or has had a
miscarriage, by reason of such fact alone, automatically and  definitively attains a level
of maturity that demands that he or she no longer be placed under the parental
authority of his or her parents relative to decisions involving access to modern methods
of family planning. However, there is no basis to reach this conclusion. The State has
provided none. And the opposite is probably more true; in that the early parenthood or
miscarriage of the minor is a sign of immaturity which, therefore,
necessitates greater  parental guidance, supervision and support for the minor, including
decisions relative to access to modern methods of family planning. This is especially true
in the case of the minor who faces the early prospect of raising a child or children.
Further, if the purpose of Section 7 of the RH Law is to uphold the interest of the minor,
who is already a parent or has had a miscarriage, from Ms or her parents who
unjustifiably withholds consent for him or her to have access to modern methods of
family planning, there are less intrusive means to achieve tMs purpose considering that
a judicial remedy, where the courts can look into the particular circumstances of a case
and decide thereon based on the best interest of the minor, may be availed of by the
minor.

The State has, therefore, not only failed to prove a sufficiently compelling State interest
to carve out an exception to the constitutionally recognized parental authority of
parents but also failed to prove that the apparent goal of this provision cannot be
attained by less intrusive means. Hence, Section 7 of the RH Law, particularly the
phrase, "except when the minor is already a parent or has had a miscarriage," is
unconstitutional for violating the natural and primary right of parents in rearing their
minor children as recognized under Article II, Section 12 of the Constitution.

Additionally, the distinction based on the predicament of the minor, as already being a
parent or has had a miscarriage, vis-a-vis the requirement of parental consent on
matters relating to access to modern methods of family planning is unconstitutional on
equal protection grounds. A parallel standard of review leads to the same end result.

The proviso in Section 7 of the RH Law effectively creates two groups with varying
treatments: (1) minors who are already parents or have had a miscarriage, and (2)
minors who are not parents or have not had a miscarriage. The first group is exempt
from parental consent while the second is not.

For convenience, I reproduce below the baseline principles on equal protection analysis
which I utilized in a previous section:

In our jurisdiction, equal protection analysis has generally followed the rational basis
test coupled with a deferential attitude to legislative classifications and a reluctance to
invalidate a law absent a clear and unequivocal showing of a breach of the Constitution.
However, when the classification burdens a suspect: class or impinges on fundamental
rights, the proper standard of review is the strict scrutiny test.

Under the strict scrutiny test, the government must show a compelling or overriding end
to justify (1) the limitation on fundamental rights or (2) the implication of suspect
classes. The classification will only be upheld if it is shown to be suitably tailored to
serve a compelling State interest. Suspect classes include classifications based on race or
nationality while classifications impinging on fundamental rights include those affecting
marriage, procreation, voting, speech and interstate travel.

As stated earlier, the fundamental right involving the parental authority of pcirents over
their minor children is unduly limited by the proviso in Section 7 of the RH Law, thus,
calling for the application of the strict scrutiny test. The government must show mat a
compelling State interest justifies the curtailment of parental authority of parents
whose minor children, belong to the first group (i.e., minors who are already parents or
have had a miscarriage) vis-a-vis parents whose minor children belong to the second
group (i.e., minors who are not parents or have not had a miscarriage). However, for
reasons already discussed as to the maturity level of such group of minors and the
apparent purpose of the subject legal provision, the government has failed to show such
compelling State interest. Hence, the phrase "except when the minor is already a parent
or has had a miscarriage" in Section 7 of the RH Law is, likewise, unconstitutional on
equal protection grounds.

4.c- Access to information

I agree with the ponencia that there is nothing unconstitutional about the capacity of a

minor to access information, on family planning services under Section 7 of the RH Law
for the reasons stated in the ponencia. hi addition, for practical reasons, the State or
parents of the minor cannot prevent or restrict access to such information considering
that they will be readily available on various platforms of media, if they are not already
available at present It is only when the minor decides to act on the information by
seeking access to the family planning services themselves that parental authority cannot
be dispensed with (as discussed in a previous section).

5- Age-And Pevelopment-Appropritate
Reproductive Health Education

I agree with the ponencia that the constitutional challenge against Section 14[64] of the
RH Law is unavailing insofar as it is claimed to violate Article II, Section 12 of the
Constitution on the natural and primary right and duty of parents to rear their children.
Indeed, the State has a substantial interest in the education of the youth. Pursuant to its
police power, the State may regulate the content of the matters taught to adolescents
particularly with respect to reproductive health. education in order to, among others,
propagate proper attitudes and behavior relative to human sexuality and sexual
relations as well as properly prepare the young for marriage and family life.  The topics
to be covered by the curriculum include values formation; knowledge and skills in self-
protection against discrimination; sexual abuse and violence against women and
children and other forms of gender based violence and teen pregnancy; physical, social
and emotional changes in adolescents; women's rights and  children's rights; responsible
teenage behavior; gender and development; and responsible. parenthood. The
curriculum is, thus, intended to achieve valid secular objectives. As the ponencia aptly
noted, the RH Law seeks to supplement, not supplant, the natural and primary right and
duty of parents to rear their children.

Further, the constitutional challenge against Section 14 relative to the Free Exercise of
Religion Clause is premature because, as noted by the ponencia, the Department of
Education, Culture and Sports (DECS) has yet to formulate the curriculum on age- and
development-appropriate reproductive health education. A Free Exercise of Religion
Clause challenge would necessarily require the challenger to state what specific religious
belief of his or hers is burdened by the subject curriculum as well as the specific content
of the curriculum he or she objects to on religious grounds. Moreover, the proper party
to mount such a challenge would be the student and/or his or her parents upon learning
of the specific content of the curriculum and upon deciding what aspects of their
religious beliefs are burdened. It would be inappropriate for the Court to speculate on
these aspects of a potential Free Exercise of Religion Clause litigation involving a
curriculum that has yet to be formulated by the DECS.
As to the equal protection challenge against Section 14, I agree with the ponencia that
there are substantial distinctions between public and private educational institutions
which justify the optional teaching of reproductive health education in private
educational institutions. (By giving private educational institutions the option to adopt
the curriculum to be formulated by the DECS, the RH Law effectively makes the teaching
of reproductive health education in private educational institutions optional because
the aforesaid institutions may completely discard such curriculum).

However, I disagree that the academic freedom of private educational institutions

should be a basis of such justification. Article XTV, Section 5(2) of the Constitution
provides mat, "[a]cademic freedom shall be enjoyed in all institutions of higher
learning." Thus, only institutions of higher learning enjoy academic freedom.
Considering that the students who will be subjected to reproductive health education
are adolescents or "young people between the ages often (10) to nineteen (19) years
who are in transition from childhood to adulthood,"[65] men this would presumably be
taught in elementary and high schools which are not covered by academic freedom.

Nonetheless, I agree with the ponencia  that, by effectively decreeing optional teaching

of reproductive health education in private educational institutions, the RH Law seeks to
respect the religious belief system of the aforesaid institutions. I find this to be a
reasonable basis for the differential treatment between public and private educational
institutions.

As previously discussed, the general approach in resolving equal protection challenges

in our- jurisdiction is to utilize the rational basis test. Here, the classification between
public and private educational institutions neither contains a suspect classification nor
impinges on a fundamental right, thus, the rational basis test is apropos.[66] In British
American Tobacco v. Sec. Camacho,[67] we explained that -

Under this test, a legislative classification, to survive an equal protection challenge, must
be shown to rationally further a legitimate state interest. The classifications must be
reasonable and rest upon some ground of difference having a fair and substantial
relation to the object of the legislation. Since every law has in its favor the presumption
of constitutionality, the burden of proof is on the one attacking the constitutionality of
the law to prove beyond reasonable doubt that the legislative classification is without
rational basis. The presumption of constitutionality can be overcome only by the most
explicit demonstration that a classification is a hostile and oppressive discrimination
against particular persons and classes, and that there.is no conceivable basis which
might support it.[68]

Noticeably, the RH Law is replete with provisions respecting the religious freedoms of
individuals. In fact, one of its central and guiding principles is free and informed choice,
thus, negating the imposition of any family planning method on an individual who
objects on religious grounds. The same principle appears to have been carried over
relative to the teaching of reproductive health education in private educational
institutions. Congress may have legitimately concluded that the State interests in
societal peace, tolerance or benevolent-neutrality accommodation, as the case may be,
vis-a-vis the various religious belief systems of private educational institutions in our
nation will be better served by making the teaching of reproductive health education
(which may touch on or impact delicate or sensitive religious beliefs) as merely optional
in such institutions. We can take judicial notice of the fact that majority of the private
educational institutions in our nation were established and are run by religious groups
or sects.

The classification in Section 14 of the RH Law, thus, rests on substantial distinctions and
rationally furthers a legitimate State interest. It seeks to further no less than the
constitutional principle on the separation of State and Church as well as the Free
Exercise of Religion Clause. In fine, it is not for this Court to look into the wisdom of this
legislative classification but only to determine its rational basis. For the foregoing
reasons, I find that the differential treatment between public and private educational
institutions in the law passes the rational basis test and is, thus, constitutional insofar as
the equal protection challenge is concerned.

6- Due Process and Free Speech Clause

I agree with the ponencia that the void for vagueness doctrine is inapplicable to the
challenged portions of the RH Law for reasons stated in the ponencia.

However, I find it necessary to discuss in greater detail why the void for vagueness
doctrine is not applicable particularly with respect to the duty to inform under Section
23 (a)(l) of the RH Law. The reason is that the void for vagueness challenge is
inextricably related to freedom of speech which, under the exceptional circumstances of
this case, once again requires the Court to take steps to protect this constitutional right
pursuant to its expanded jurisdiction and as a penumbra to its power to issue rules for
the protection and enforcement of constitutional rights.

As previously discussed, Section 23(a)(l) of the Mi Law imposes a duty to inform on both
public and private health care service providers:

SEC. 23. Prohibited Ads. -The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

In effect, the law requires that complete and correct information on the government's

reproductive health programs and services, including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective family
planning methods, be given to all persons who are qualified beneficiaries under the RH
Law. The law and its IRR, however, does not define the nature and extent of "complete
and correct information." Petitioners claim that, without this definition, the duty to
inform should be nullified under the void for vagueness doctrine.

I disagree.

The RH Law enjoys the presumption of constitutionality and should be given a

construction which will avoid its nullity. The phrase "[k]nowingly withhold information
or restrict the dissemination thereof, and/or intentionally provide incorrect information
regarding programs and services" under Section 23(a)(l) of the RH Law should be
reasonably and narrowly construed as merely requiring the health care service provider
to provide and explain to persons the list of the government's reproductive health
programs and services under the RH Law. To illustrate, if the government's reproductive
health programs and services under the RH Law consists of A, B, C and D, then a health
care service provider is required to transmit this information to a person qualified to
avail of the benefits under the law.

But it is not as simple as that

The RH Law itself provides that the individual should be allowed to make a free and
informed choice. As a result, the government has set a self-limiting policy that it will not
endorse any particular family planning method. Yet, invariably, potential beneficiaries of
these programs and services will seek the advice or counsel of health care service
providers as to which programs and services they should avail of.

When this occurs, can the government control the opinions that health care service
providers will give the potential beneficiaries by limiting the content of such opinions?
That is, can the government prevent health care service providers from giving their
opinions or controlling the content of their opinions, in favor or against, a particular
reproductive health service or program by mandating that only a particular opinion will
comply with the "complete and correct information" standard under Section 23 (a)(1) of
the RH Law?

I submit that the government cannot do so without violating the Free Speech Clause.

The "complete and correct information" standard cannot be construed as covering

matters regarding the professional opinions (including the opinions of a conscientious
objector on religious or ethical grounds as previously discussed) of health service
providers, either for, or against, these programs and services because this would
constitute an abridgement of freedom of speech through subsequent punishment. The
government cannot curtail such opinions without showing a clear and present danger
that will bring about the substantive evils that Congress has a right to prevent,[69] In the
case at bar, there is no attempt on the part of the government to satisfy the clear and
present danger test. Consequently, the "complete and correct information" standard
under Section 23(a)(l) should be narrowly construed in order not to violate the Free
Speech Clause. As earlier noted, the only way to save it from constitutional infirmity is to
construe the "complete and correct information" standard as referring to information
containing the list of the government's reproductive health programs and services under
the RH Law. Anything beyond that would transgress the free speech guarantee of the
Constitution.

Indubitably, an expansive and broad interpretation of the "complete and correct

information" standard will give the government the unbridled capacity to censor speech
by only allowing opinions on the reproductive health programs and services under the
RH Law which, it favors. The government can use the "complete and correct
information" standard to force health care service providers to endorse the former's
preferred family planning method despite the clear policy of the RH Law granting free
and informed choice to the individual. This cannot be done without violating the Free
Speech Clause.

Of course, this would mean that health care service providers, who are for or against
certain programs and services under the RH Law, will be able to influence potential
beneficiaries over which family planning method or means to avail of. This is the price of
living in a democratic polity, under our constitutional order, where opinions are freely
expressed and exchanged. The Constitution guarantees freedom of speech and, thus,
tilts the balance in favor of the individual's right to free speech unless the State can
show that controlling the individual's speech can pass the clear and present danger test.
Here, as afore-stated, the government has failed to satisfy this test. If the government
desires to push a preferred family planning method, it has the full machinery of the
State to back up its information campaign under Section 20 of the RH Law. However, it
cannot force individual health care service providers, under pain of penal liability, to
express opinions that are favorable to certain reproductive health programs and
services under the RH Law. Government may try to convince health care service
providers, but not force them.

The above disquisition should not, of course, be taken to mean that health care service
providers shall be exempt from their professional or ethical responsibilities which they
owe to their patients and which may result to administrative, civil or criminal liabilities
of the former based on their code of ethical conduct not unlike the code of ethics for
lawyers. But, unavoidably, the professional opinion or advice of health care service
providers will be sought by potential beneficiaries under the RH Law and, in that
instance, the "complete and correct information" standard cannot be utilized by the
State to curtail the health care service provider's freedom of speech.

Thus, I find that the "complete and correct information" standard under Section 23(a)(l)
of the RH Law and, hence, the duty to inform (as discussed in a previous subsection) is
constitutional only insofar as it requires health care service providers to provide a list  of
the government's reproductive health programs and services under the RH Law to
qualified beneficiaries. Further, given the afore-discussed peculiar circumstances of this
case and in order to adequately protect the right to free speech of health care service
providers, it is necessary for the Court to issue an order directing the DOIT to generate
the complete and correct list of the government's reproductive health programs and
services under the RH Law which will serve as the template for the "complete and
correct information" standard and, hence, the duty to inform under Section 23 (a) (1) of
the RH Law. The DOIT should be directed to distribute this template to all health care
service providers covered by the RH Law. This will forestall any confusion on the nature
and scope of the "complete and correct information" standard which is necessary given
the penal clause under the duty to inform.

7- Equal Protection

I agree with the ponencia that the RH Law does not violate the equal protection clause
insofar as it is claimed to single out the poor to reduce their numbers and that the poor
may be the subject of government subsidy for the programs under the RH Law for
reasons stated in ponencia.

8. Section 7 (Involuntary Servitude) 

I am fully in accord with the ruling of the ponencia that Section 17 of the RH Law does
not violate the constitutional prohibition against involuntary servitude and that it is
unconstitutional insofar as it imposes a duty to conscientious objectors to render pro
bono reproductive health care services to which the conscientious objector objects to
on religious or ethical grounds for reasons stated in the ponencia. Corrorarily, the
conscientious objector can be required to render pro bono reproductive health care
services for as long as it involves services that he or she does not object to on religious
or ethical grounds.

9. Delegation of Authority To The FDA

I am fully in accord with, the ruling of the ponencia that Congress can validly delegate to
the FDA the authority or power to determine whether the drugs, devices, methods or
services to be used under the RH Law comply with constitutional and statutory
standards for reasons stated in the ponencia.

10. Autonomy Of The Local. Government Units (LGUs)

And The Autonomous Region of Muslim Mindanao (ARMM)

I concur with the ponencia that the RH Law does not violate the local autonomy of LGUs
and the AJRMM guaranteed under Article II, Section 25[70] and Article X, Section 2[71] of
the Constitution.

I have reservations, however, with regard to the following statements in the ponencia:

In this case, a reading of the RH Law clearly shows that whether it pertains to the
establishment of health care facilities, the hiring of skilled health professionals, or the
training of barangay health workers, it would be the national government that would
provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which
the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavour", the local government units are
merely encouraged to provide these services. There is nothing in the wording of the law
which can be construed as making the availability of these services mandatory for the
local government units. For said reason, it cannot be said that the RH Law amounts to
an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.[72]

First, under Sections 5,[73] 10[74] and 13[75] of the RH Law, the LGUs are not prevented
from using their own -funds to provide the specified services therein. The law appears
to encourage LGUs to spend for these specified services on the assumption that the
LGUs will see for themselves that these services are beneficial to them and, thus,
warrant their own expenditure therefor.

Second, the use of the phrase "shall endeavor" appears only in Sections 5 and 6 of the
RH Law. Sections 8,[76] 13[77] (last sentence) and 16[78] use the word "shall" relative to the
duties required of the LGUs therein. Thus, the duties of the LGUs under these sections
are mandatory.
Third, the ponencia's construction of the word "endeavor" under Sections 5 and 6 of the
RH Law might give the wrong impression that the LGUs are not mandated to cooperate
with the national government in the implementation of the programs set under these
sections. However, the framework of action of the RH Law is based, among others, on
the ¦effective partnership between the national government and LGUs.[79] In fact, the
LGUs are effectively designated as implementing agencies of certain, aspects of the
programs under the RH Law.

In line with this policy, a more reasonable interpretation of the phrase "shall endeavor"
under Sections 5 and 6 is to read it in conjunction with the proviso (which is identical for
both sections) stating that, "Provided, further, That the national government shall
provide additional and necessary funding and other necessary assistance for the
effective implementation of this provision." Thus, the use of the phrase "shall endeavor"
should be understood as a recognition by Congress of the realities on the ground where
the LGUs may not have enough funds to fulfill their mandate under these sections.
However, if the national government provides for the needed funds, the LGUs cannot
refuse to cooperate and do its part in the implementation of these sections. In other
words, under -these sections, the law mandates, not merely encourages, LGUs to fulfill
their duties unless prevented from doing so for justifiable reasons such as the lack of
available funds.

11. Natural Law

I agree with the ponencia that natural law may not, under the particular circumstances
of this case, be used to invalidate the RH Law. However, I disagree with the following
statements:

While every law enacted by man emananted from what is perceived as natural law, the
Court is not obliged to see if a statute, executive issuance or ordinance is in conformity
to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the .philosophical, school are interested in
the law as an abstraction, rather than in the actual law of the past or present.[80]

These statements, I submit, are not necessary in the disposition of this case and appear
to be an inaccurate description of natural law. The Court need not foreclose the
usefulness of natural law in resolving future cases. I submit that the statement that
natural law is not applicable in the resolution of this particular case suffices.

ACCORDINGLY, I vote to PARTIALLY GRANT the petitions.

1. The word "primarily" in Sections 3.01 (a) and 3.01(j) of the Implementing Rules
and Regulations is VOID for contravening Section 4(a) of Republic Act No. 10354
and Article II, Section 12 of Constitution.

2. The phrase, "Provided, further, That these hospitals shall immediately refer the
person seeking such care and services to another health facility which is
conveniently  accessible," in Section  7 and  the  phrase, "however, the
conscientious objector shall immediately refer the person seeking such care and
 services to another health care service provider within the same facility or one
which is conveniently accessible" in Section 23(a)(3) of Republic Act No. 10354
are UNCONSTITUTIONAL for violating the Free Exercise of Religion Clause under
Article III, Section 5 of the Constitution. Consequently, Sections 5.24(b) to (e) and
5.25 of the Implementing Rules and Regulations, insofar as they implement the
aforesaid provisions, are VOID.

3. The last paragraph of Section 5.24 of the Implementing Rules and Regulations is
VOID insofar as it deprives the skilled health professionals enumerated therein of
the right to conscientious objection for violating Section 4(n) in relation to
Section 23(a)(3) of Republic Act No. 10354 and Equal Protection Clause under
Article III, Section 1 of the Constitution.

4. Section 23(a)(2)(i) of Republic Act No. 10354 is UNCONSTITUTIONAL for violating

the constitutional right of both spouses to found a family under Article XV,
Section 3(1) of the Constitution.

5. The phrase "except when the minor is already a parent or has had a miscarriage"
in Section 7 of  Republic Act  No. 10354 is UNCONSTITUTIONAL for violating the
natural and primary right of parents  to rear their minor children under Article II,
Section 12 of the Constitution.

6. Section 17 of Republic Act No. 10354 is UNCONSTITUTIONAL insofar  as it

requires conscientious objectors to render pro bono reproductive health care
services to which the conscientious objector objects to on religious or ethical
grounds as a prerequisite to PhilHealth accreditation.

Pursuant to the expanded jurisdiction of this Court and its power to Issue rules for the
protection and enforcement of constitutional rights, the Court should issue an order:

1. DIRECTING the Food and Drug Administration to formulate the rules of

procedure in the screening, evaluation and approval of all contraceptive drugs
and devices that will be used under Republic Act No. 10354. The rules of
procedure shall contain the following minimum requirements of due process: (a)
publication, notice and hearing, (b) The Solicitor General shall be mandated to
appear to represent the unborn and the State's interest in the protection of the
life of the unborn, (c) interested parties shall be allowed to intervene, (d) the
standard laid down in the Constitution, as adopted under Republic Act No. 10354,
as to what constitutes allowable contraceptives shall be strictly followed, i.e.,
those which do not harm or destroy the life of the unborn from
conception/fertilization, (e) in weighing the evidence, all reasonable doubts shall
be resolved in favor of the protection and preservation of the right to life of the
unborn from conception/fertilization, and (f) the other requirements of
administrative due process, as summarized in Ang Tibay, shall be complied with.

The Food and Drug Administration is DIRECTED to submit these rules of

procedure, within thirty (30) from receipt of this decision, for the Court's
appropriate action,
 2. DIRECTING the Food and Drug Administration to IMMEDIATELY, and in no case to
exceed five days from the receipt of this decision, INFORM this Court if the
contraceptives that it previously approved for use and distribution in the
Philippines were screened, evaluated and/or tested against the standard laid
down in the Constitution, as adopted under Republic Act No. 10354, on allowable
contraceptives, i.e., those which do not harm or destroy the life of the unborn
from conception/fertilization; and those which do not prevent the implantation
of the fertilized ovum. The contraceptive drugs and. devices previously approved
by the Food and Drug Administration should not include contraceptives which
(.1) do not provide a 100% guarantee of preventing fertilization and (2) has a fail-
safe mechanism which destroys the fertilized ovum if fertilization occurs (e.g.,
prevents the implantation of the fertilized ovum on the uterus).

3. DIRECTING the Department of Health in coordination with other concerned 

agencies to formulate the rules and regulations or guidelines which will govern
the purchase and distribution/dispensation of the products or supplies under
Section 9 of Republic Act No. 10354 covered by the certification from, the Food
and Drug Administration that said product and supply is made available on the
condition that it is not to be used as an abortifacient subject to the following
minimum due process requirements: (a) publication, notice and hearing, (b) the
Solicitor General shall be mandated to represent the unborn and the State's
interest in the protection of the life of the unborn, and (c) interested parties shall
be allowed to intervene. The rules and regulations or guidelines shall provide
sufficient detail as to the manner by which said product and supply shall be
strictly regulated in order that they will not be used as an abortifacient and in
order to sufficiently safeguard the right to life of the unborn. Pending the
issuance and publication of these rules by the Department of Health, the
Temporary Restraining Order insofar as the proviso in Section 9  of Republic Act
No. 10354, as implemented by Section 7.03 of the IRR, relative to the subject
products and supplies, which are made available on the condition that they will
not be used as an abortifacient, shall remain in force.

4. DIRECTING the Department of Health to generate the complete and correct list of
the government's reproductive health programs and services under Republic /Vet
No. 10354 which will serve as the template for the complete and correct
information standard and, hence, the duty to inform under Section 23(a)(l) of
Republic Act No. 10354. The Department of Health is DIRECTED to distribute
copies of this template to all health care service providers covered by Republic
Act No. 10354.

[1]
 Responsible Parenthood and Reproductive Health Act of 2012.

[2]
 Constitution, Article VIII, Section 1.

[3]
 Constitution, Article VIII, Section 5(5).

[4]
 The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the
mother and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government. (Emphasis supplied)

[5]
 IV RECORD, CONSTITUTIONAL COMMISSION 579 (September 12, 1986).

[6]
 IV RECORD, CONSTITUTIONAL COMMISSION 597 (September 12, 1986).

[7]
 IV RECORD, CONSTITUTIONAL COMMISSION 599 (September 12,1986).

[8]
 IV RECORD, CONSTITUTIONAL COMMISSION 600 (September 12,1986).

[9]
 IV RECORD, CONSTITUTIONAL COMMISSION 602 (September 12, 1986).

[10]
 IV RECORD, CONSTITUTIONAL COMMISSION 683 (September 16, 1986).

[11]
 410 U.S. 113(1973).

[12]
 IV RECORD, CONSTITUTIONAL COMMISSION 682 (September 16,1986).

[13]
 IV RECORD, CONSTITUTIONAL COMMISSION 707 (September 17,1986).

[14]
 IV RECORD, CONSTITUTIONAL COMMISSION 683 (September 16, 1986).

[15]
 IV RECORD, CONSTITUTIONAL COMMISSION 698 (September 17,1986).

[16]
 IV RECORD, CONSTITUTIONAL COMMISSION 803 (September 19, 1986).

[17]
 IV RECORD, CONSTITUTIONAL COMMISSION 800 (September 19, 1986).

[18]
 IV RECORD, CONSTITUTIONAL COMMISSION 668 (September 16,1986).

[19]
 IV RECORD, CONSTITUTIONAL COMMISSION 669 (September 16, 1986).

[20]
 IV RECORD, CONSTITUTIONAL COMMISSION 711 (September 17, 1986).

[21]
 IV RECORD, CONSTITUTIONAL COMMISSION 745 (September 17, 1986).

[22]
 IV RECORD, CONSTITUTIONAL COMMISSION 801-802 (September 19, 1986).

[23]
 IV RECORD, CONSTITUTIONAL COMMISSION 668 (September 16, 1986); IV RECORD,
CONSTITUTIONAL COMMISSION 705, 708, 724 (September 17, 1986); IV RECORD,
CONSTITUTIONAL COMMISSION 800 (September 19, 1986).

[24]
 IV RECORD, CONSTITUTIONAL COMMISSION 807 (September 19, 1986).

[25]
 IV RECORD, CONSTITUTIONAL COMMISSION 808 (September 19, 1986).
[26]
 Memorandum for Alliance for the Family Foundation Philippines, Inc. (ALFI) et al.
(Vol. 1), pp. 41-43.

[27]
 See Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991,
194 SCRA 317, 337-338.

[28]
 Supra note 10.

[29]
 RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 7.

[30]
 Memorandum for Petitioners ALFI, et al. (Vol. 1), pp. 168-169.

[31]
 361 Phil. 73 (1999).

[32]
 Id. at 88.

[33]
 TSN, July 9,2013, pp. 49-51.

[34]
 As previously discussed, the word "primarily" is void.

[35]
 See Oposa v. Factoran G.R. No. 101083, July 30,1993,224 SCRA 792, 802-803.

[36]
 69 Phil. 635(1940).

[37]
 Memorandum for the Solicitor General, p. 17.

[38]
 Id. at. 7.

[39]
 Section 7.03 Drugs, Medicines, and Health Products Already in the EDL. Drags,
medicines, and health products for reproductive health services already included in the
EDL as of the effectivity of these Rules shall remain in the EDL, pending FDA certification
that these are not to be used as abortifacients.

[40]
 Like a law banning alcohol or cigarettes.

[41]
 Ponencia, pp. 70-71,82.

[42]
 But it should be noted that Section 7 of the RH Law effectively grants to non-
maternity specially hospitals and hospitals owned and operated by a religious group the
same right of a conscientious objector under Section 23 although the term
"conscientious objector" is not specifically used in Section 7, to wit:

SBC. 7. Access to Family Planning. - All accredited public health facilities shall provide a
full range of modern family planning methods, winch shall also include medical
consultation,?, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have children: Provided,
'That family planning services shall likewise be extended by private health facilities to
paying patients with the option to grant free care and services to indigents, except in
the case of non-maternity specialty hospitals and hospitals owned and operated by a
religious group, but they have the option to provide such full range of modern family
planning methods:  Provided, further, That these hospitals shall immediately refer the
person seeking such care and services to another health facility which is conveniently
accessible: Provided, finally, That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344.

[43]
 REPUBLIC ACT No. 8344 dated August 25,1997 pertinently provides that:

Section 2. Section 2 of Bat as Pambansa Bilang 702 is hereby deleted and in place
thereof new sections 2, 3 and 4 are added, to read as follows:

"SEC. 2. For purposes of this Act, the following definitions shall govern: "(a) 'Emergency'
- a condition or state of a patient wherein based on the objective findings of a prudent
medical officer on duty for the day there is immediate danger and where delay in initial
support and treatment may cause loss of life or cause permanent disability to the
patient.

"(b) 'Serious case' - refers to a condition of a patient characterized by gravity or danger

wherein based on the objective findings of a prudent medical officer on duty for the day
when left unattended to, may cause loss of life or cause permanent disability to the
patient. x x x"

[44]
 Estrada v. Escritor, 455 Phil. 411 (2003).

[45]
 Id. at 600.

[46]
 http://www.vatican.va/holv  father/paul vi/encyclicals/documents/hf_p-vi_enc
25071968 humanae-vitae_en.html last accessed on March 24, 2014.

[47]
 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary
(2009) at 330.

[48]
 Section 5.22 Exemption of Private Hospitals from Providing Family Planning
Services. Private health facilities shall provide a full range of modern family planning
methods to clients, unless the hospital is owned and operated by a religious group, or is
classified as a non-maternity specialty hospital, as part of their annual licensing and
accreditation requirements.

In order to receive exemption from providing the full range of modern family planning
methods,  the health care facility must comply with the following requirements:
a)   Submission of proof of hospital ownership and management by a religious group or
its status as a non-maternity specialty hospital;
b)   Submission to the DOH of an affidavit stating the modern family planning methods
that the facility refuses to provide and the reasons for its objection;
c)    Posting of a notice at the entrance of the facility, in a prominent location and using a
clear/legible layout and font, enumerating the reproductive health services the facility
does not provide; and
d)   Other requirements as determined by the DOB',

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop
guidelines for the implementation of this provision.

[49]
 Section 5.23 Private Skilled Health Professional as a Conscientious Objector. In order
to legally refuse to deliver reproductive health care services or information as a
conscientious objector, a private skilled health professional shall comply with the
following requirements:
a) Submission to the DOH. of an affidavit, stating the modern family planning methods
that he or she refuses to provide and his or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent

location and using a clear/legible font, enumerating the reproductive health services he
or she refuses to provide; and

c) Other requirements as determined by the DOH.

Within sixty (60) days from the effectivity of these Rules, the DOH shall develop
guidelines for the implementation of this provision.

Section 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled health professional shall comply with the
following requirements:

a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;
b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;
c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client's travel
arrangements and financial capacity;
d) Written documentation of compliance with the preceding requirements; and
e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health

officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity of these rules, the DOH shall develop
guidelines for the implementation of this provision.

[51]
 Supra note, 44.
[52]
 Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531 583-
584 (2004)

[53]
 Id. at 585.

[54]
 Id. at 644. (Panganiban, J. dissenting)

[55]
 Id.

[56]
 Id. at 645-646.

[57]
 Supra note 47at 83.

[58]
 The Slate recognizes the role of women in nation-building, and shall ensure (lie
fundamental equality before the law of women and men.

[59]
 CONSTITUTION, Article VIII, Section 1.

[60]
 Supra note 47 at 83.

[61]
 Id.

[62]
 Vancil v. Belmes, 411 Phil. 359, 365 (2001).

[63]
 Supra note 47 at 85.

[64]
 Section 14 of the RH Law states:

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. — The

State shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trained teachers informal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence: against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible teenage behavior; gender
and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents-
teachers-community associations, school officials and other interest groups. The
Department of Education (DepED) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.

[65]
 Section 4(b), RH Law.

[66]
 British American 'Tobacco v. Camacho, 584 Phil. 489 (2008).

[67]
 Id.
[68]
 Id.

[69]
  See Cruz, Constitutional Law (2007), at 213-215.

[70]
 The State shall ensure the autonomy of local governments.

[71]
 The territorial and political subdivisions shall enjoy local autonomy.

[72]
 Ponencia, p. 91.

[73]
 SEC. 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled
Birth Attendance. -The LGUs shall endeavor to hire an adequate number of nurses,
midwives and other skilled health professionals, for maternal health care and skilled
birth attendance to achieve an ideal skilled health professional-to-patient ratio taking
into consideration DOH targets: Provided, That people in geographically isolated or
highly populated and depressed areas shall be provided, the same level of access to
health care: Provided, further, That the national government shall provide additional
and necessary funding and other necessary assistance for the effective implementation
of this provision. [Emphasis supplied]

[74]
 SEC. 10. Procurement and Distribution of Family Planning Supplies, - The DOH shall
procure, distribute to LGUs and monitor the usage of family planning supplies for the
whole country. The DOLI shall coordinate with all appropriate local government bodies
to plan and implement this procurement and distribution program. The supply and
budget allotments shall be based on, among others, the current levels and projections
of the following:

(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring
program consistent with the overall provisions of this Act and the guidelines of the DOH.
[Emphasis supplied]

[75]
 SEC. 13. Mobile Health Care Service.  — The national or the local government may
provide each provincial, city, municipal and district hospital with a Mobile Health Care
Service (MHCS) in the form of a van or oilier means of transportation appropriate to its
terrain, taking into consideration the health care needs of each LGU. The MHCS shall
deliver health care goods and services to its constituents, more particularly to the poor
and needy, as well as disseminate knowledge and information on reproductive health.
The MHCS shall be operated by skilled health providers and adequately equipped with a
wide range of health care materials and information dissemination devices and
equipment, the latter including, but not limited to, a television set for audio-visual
presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized
cities. [Emphasis supplied]
[76]
 SEC. 8. Maternal Death Review and Fetal and Infant Death Review. - All LGUs,
national and local government hospitals, and other public health units shall conduct an
annual Maternal Death Review and Fetal and Infant Death Review in accordance with
the guidelines sot by the DOH. Such review should result in an evidence-based
programming and budgeting process that would contribute to the development of more
responsive reproductive health services to promote women's health and safe
motherhood. [Emphasis supplied]

[77]
 SEC. 13. Mobile Health Care Service. — The national or the local government may
provide each provincial, city, municipal and district hospital with a Mobile Health Care
Service (MHCS) in the form of a van or other means of transportation appropriate to its
terrain, taking into consideration the health care needs of each LGU. The MHCS shall
deliver health, care goods and services to its constituents, more particularly to the poor
and needy, as well as disseminate knowledge and information on reproductive health.
The MHCS shall be operated by skilled health providers and adequately equipped with a
wide range of health care materials and information dissemination devices and
equipment, the latter including, but not limited to, a television set for audio-visual
presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized
cities. (Emphasis supplied)

[78]
 SEC. 16. Capacity Building of Barangay Health Workers (BHWs). - The DOH shall be
responsible for disseminating information and providing training programs to the LGUs.
The LGUs, with the technical assistance of the DOH, shall be responsible for the training
of BHWs and other barangay volunteers on the promotion of reproductive health. The
DOH shall provide the LGUs with medical supplies and equipment needed by BHWs to
carry out their functions effectively: Provided, further, That the national government
shall provide additional and necessary funding and other necessary assistance for the
effective implementation of this provision including the possible provision of additional
honoraria for BHWs. (Emphasis supplied)

[79]
 Section f(3)(2), RH Law:

SEC. 3. Guiding Principles for Implementation. - This Act declares the following as guiding
principles:

(f) The State shall promote programs that: x x x

(3) ensure effective partnership among national government, local government units
(LGUs) and the private sector in the design, implementation, coordination, integration,
monitoring and evaluation of people-centered programs to enhance the quality of life
and environmental protection; (Emphasis supplied)

[80]
 Ponencia, p. 92.

CONCURRING OPINION
ABAD, J.:

I concur with the majority.

Remarkably, Republic Act 10354 or the Responsible Parenthood and Reproductive

Health Act of 2012, the RH Law for short, repeatedly extols the principles of gender
equality, sustainable human development, health, education, information, the sanctity
of human life and the family, improved quality of life, freedom of religious convictions,
ethics, and cultural beliefs, freedom from poverty, and other ennobled principles. But
these are already part of existing laws and no one can object to them. What they do is
apparently embellish what the RH Law seeks to accomplish.

Stripped of euphemisms and the echoes of these principles, what the Saw really wants
is to limit population growth with an eye to "sound replacement rate"[1] through massive
birth control, sex education, and neutralization of opposing views. It seems not to
matter that population growth has, according to a United Nations (UN) study,
persistently declined in the Philippines from 7.42 per couple in 1950 to 3.27 in 2005-
2002[2] which means that couples today have fewer children even without the RH law.

According to the same UN study, neighboring Asian countries like Japan, Singapore,
Taiwan, South Korea, and even China which rigidly implemented birth control programs
in the past now have worrisome far-below replacement levels. Having developed a
mind-set that children are a burden to the family and to the nation, young couples
refuse to have them despite government incentives and awards. This prompted former
Singapore Prime Minister Lee Kwan Yew to admit in a 2013 speech that "At these low
birth rates we will rapidly age and shrink."

Yet children are not such a burden. Columnist Anne Marie Pamintuan, quoted World
Bank's Vice President for East Asia and Pacific, Axel Von Trotsenberg, as saying that "the
ultimate asset of the Philippines are itspeople."[3]

Facial Challenge

The ponencia is right that the procedural challenges to the petitions are unmeritorious.
In particular, respondents claim that the Court should dismiss these actions since they
are a mere facial challenge on the constitutionality of the RH Law as opposed to an
actual breach of its provisions and the filing of a case in court on account of such breach.
The petitions-should not be allowed, they add, since this challenge is not about the
exercise of the freedom of expression, an exception to such limitation.

But the right to life of the unborn child, which is at the center of these controversies,
cannot be compared with rights that are best examined in cases of actual violations.
Obviously, the Court cannot wait for the actual extermination of an unborn child before
assessing the constitutional validity of the law that petitioners claim to permit such
action. A law claimed to threaten a child's right to live sufficiently justifies a
constitutional facial challenge.

Constitutional Barrier

There is no question of course that every couple planning their family and every woman
of ample discernment has the right to use natural or artificial methods to avoid
pregnancy. This much is clear. But, in seeking to promote ' the exercise of this right, the
RH Law must hurdle certain constitutional barriers: 1) the right to fife of the unborn
child that outlaws abortion; 2) the right to health; 3) the free exercise of religion: 4) the
right to due process of law; and 4) the freedom of expression.

Section 9 and
the Right to Life of the Unborn

Section 12, Article II (Declaration of Principles and State Policies), of the 1987
Constitution makes it the duty of the State to protect the right to life of the unborn from
conception. Thus

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic autonomous social institution. It shall equally protect the life of the
mother and the life of the unborn from conception, x x x

1. When Life Begins 

When the man's sperm is ejected into the woman's uterus, it travels inward towards the
ovary through the fallopian tube. If the ovary has produced and released an ovum, the
sperm will meet and fertilize it, producing a zygote, which is a new cell formed by that
union. The zygote then travels outward through the fallopian tube towards the uterus,
meantime growing into a fleshed embryo, and implants itself on the uterine wall where
it will further grow into a fetus and eventually into a full-grown child ready for delivery
by its mother at the appropriate time.[4]

Some people believe that the conception of the child begins only from the moment the
fleshed embryo implants itself on the mother's uterine wall where it will draw the food
and nutrition it needs to survive and grow into a fetus. It is the termination of the
embryo or the fetus at this stage, painful, bloody, and depressing, that some are quick
to condemn as abortion. Preventing implantation by quietly slaying the zygote or the
embryo with little or no blood before it reaches the uterine wall is to them not abortion.

But they are wrong. The 1987 Constitution is clear: the life of a child begins "from
conception" and the dictionary, which is the final arbiter of the common meaning of
words, states that "conception" is "the act of being pregnant," specifically, the
"formation of a viable zygote."[5] Science has proved that a new individual comes into
being from the moment the zygote is formed. Indeed, the zygote already has a genome
(DNA to others) that identifies it as a human being and determines its sex.[6] The union
of man and woman in the fertilized ovum is the beginning of another person's life.

With the Constitution, the Filipino people have in effect covenanted that the fertilized
ovum or zygote is a person. And it is a covenant that binds. Indeed, the RH Law accepts
this inviolable principle and precisely prohibits the use of abortifacient that induces "the
prevention of the fertilized ovum to reach and be implanted in the mother's womb."
Ambushing the fertilized ovum as it travels down the fallopian tube to prevent its
implantation on the uterine wall is abortion.

2. Preventing Fertilization
Since the conception of a child begins from the fertilization of the ovum, it is evident
that merely preventing the woman from ovulating to produce ovum or preventing the
sperm from fertilizing it does not constitute abortion. Contraception in this sense does
not violate the Constitutional right to life since the unborn has not as yet been
conceived. The law may authorize or even encourage this kind of contraception since it
merely prevents conception. The life of an unborn child is not at stake.

3. Free Access to
Contraceptives

Barriers like condoms, diaphragms, and contraceptive sponges as well as the natural
rhythm method prevent the meeting of the sperm and the ovum. These methods have
not been seriously assailed as abortifacient. But birth control pills and intrauterine
devices (IUDs) are another matter. A sector of society led by petitioners vehemently
assails them as unsafe and abortifacient, meaning weapons of abortion. And here lies
the central issue in this case that will not go away unless resolved.

Birth control pills are essentially "hormonal"" contraceptives that, according to the
World Health Organization (WHO), will avoid conception in two ways: 1) they will
prevent the ovary from producing ova or eggs and 2) they will generate thick cervix
mucus that would prevent the sperm from reaching and fertilizing the ovum if one is
produced. These hormonal contraceptives also come in the forms of injectables with
effects that last for about three months; patches that last seven days; or implants on
women's upper arms that continuously release drugs from 3 to 5 years.

IUDs, on the other hand, are small objects that are implanted into the woman's womb,
releases chemical substances, and hinders the fertilization of the ovum as its primary
function. The IUDs in current use are about the size and shape of a small pendant cross.
They prevent conception for 5 or 10 years. One kind is made of copper that releases
toxic particles that supposedly kill sperm cells which enter the womb. Another kind
releases synthetic hormones into the womb, inducing thick mucus that makes it difficult
for the sperm to reach the ovum.[7]

The Food and Drug Administration (FDA) has been routinely allowing public access to
hormonal contraceptives and IUDs even before the passage of the RH Law. The outcry
for the law's passage to make these things available to whoever wants them is the
lament of the unenlightened.

In reality, the government senses a strong resistance to their use, borne of beliefs that
they are unsafe and abortifacient. The RH Law precisely aims to put an end to this
resistance by imposing certain sanctions against hospitals, physicians, nurses, midwives,
and other health care providers who communicate to others the view that
contraceptives and IUDs are unsafe and abortifacient, refuse to prescribe them, or
decline to perform the required procedures for their use.

4. Legislative Attempt to Settle

the Issues against Birth Control
Pills and IUDs.
By their nature, hormonal contraceptives and IUDs interfere with the woman" s normal
reproductive system. Consequently, the FDA, which has the required technical
competence and skills, need to evaluate, test, and approve their use. The RH Law
acknowledges this need in its policy statements in Section 2, in its guidelines for
implementation in Section 3, and in its definition of terms in Section 4(a). It is consistent
with the FDA law and no one can object to it.

Apparently, however, the FDA's seals of approval have not sufficiently spurred the use
of hormonal contraceptives and IUDs. To remedy this and no doubt to quell the belief
that they are unsafe and abortifacient. Section 9 of the RH law categorically declares
hormonal contraceptives and IUDs "safe"' and "non-abortifacient" like other family
planning products and supplies. It also ordains their inclusion in the National Drug
Formulary which is also the Essential Drugs List. The first sentence of Section 9 provides:

Section 9. The Philippine National Drug Formulary System and Family Planning
Supplies. - The National Drug Formulary shall include hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, x x x

xxxx

The above apparent!)' elevates into the status of a law the proposition that hormonal
contraceptives and IUDs belong to the class of safe and non-abortifacient family
planning products and supplies. Indeed, it ordains their inclusion in the National Drug
Formulary or Essential Drug List (EDL) to join government approved drugs and devices.

The second sentence of section 9 of course speaks of inclusion or removal -of family 
planning supplies from the EDL based on existing practice and in consultation with
reputable medical associations, thus:

x x x The Philippine National Drug Formulary System (PNDFS) shall be observed in

selecting drugs including family planning supplies that will be included or removed from
the Essential Drugs List (EDL) in accordance with existing practice and in consultation
with reputable medical associations in the Philippines, x x x

But the above evidently refers to products and supplies other than the hormonal
contraceptives and IlJDs mentioned in the preceding sentence. This is how it should be
understood since that preceding sentence already declares these two products as safe
and non-abortifacient and must by law be included in that List.

If the Court were to treat the first sentence of Section 9 above as a legislative mandate
that hormonal contraceptives and IUDS are safe and non-abortifacient, then the FDA's
former authority to determine whether or not hormonal contraceptives and IUDs are
safe and non-abortifacient would be circumscribed. The law would already have made
the determination for the FDA.

The real question before the Court is whether or not Congress can elevate to the status
of a law the medical and scientific proposition that hormonal contraceptives and IUDs
are safe and non-abortifacient and order their inclusion in the National Drug Formulary
without violating the Constitution. Respondents claim that Congress can; petitioners
claim otherwise.

The issue of whether or not hormonal contraceptives and IUDS are safe and non-
abortifacient is so central to the aims of the RH Law that the OSG has as a matter of fact
been quick to defend the authority of Congress to convert such factual finding into law.
The OSG insists that everyone, including the Court, has to defer to this finding
considering that the legislature is better equipped to make it. Specifically, the OSG said:

The Congress, employing its vast fact-finding and investigative resources, received
voluminous testimony and evidence on whether contraceptives and contraceptive
devices are abortifacients. It thereafter made a finding that the used of current
reproductive devices is not abortifacient. Such finding of legislative fact, which became
the basis for the enactment of the RH Law, should be entitled to great weight and
cannot be equated with grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Congress.

To support this view, the OSG claims that scientific evidence of the highest standards
support the legislative determination in Section 9. It rests on the opinions of a group of
Philippine medical experts called the Universal Health Care Study'Group (UHC) and the
World Health Organization (WHO). The OSG even submits copies of these opinions as
part of its comment and discusses them extensively.

5. UHC Study Group Opinion

But the UHC Study Group based its conclusion that hormonal contraceptives and IUDs
are not abortifacient on the belief that abortion refers only to a viable fetus; the death
of a mere fertilized ovum in the hand of these contraceptives do not in the mind of this
group amount to abortion. Its paper thus states:

Abortion is the termination of an established pregnancy before fetal viability (the

fetus' ability to exist independently of the mother). Aside from the 50% of zygotes
that are naturally unable to implant, an additional wastage of about 20% of all
fertilized eggs occurs due to spontaneous abortions (miscarriages).

The UHC Study Group seems to live in another planet. Its understanding of when the life
of the unborn child begins essentially differs from what the Constitution states, i.e.,
from the time of conception, something that the RH law itself concedes. Consequently,
the group's study fails to connect to the issue of when contraceptives act as
abortifacients.

Besides, the UHC Study Group's findings cannot be seriously regarded as near
undeniable truth. The UHC group is not a recognized medical or scientific society like the
International Union against Cancer or a renowned medical research center like the
Mayo Clinic that have reputations for sound medical and scientific studies. The paper it
submitted to Congress has not been subjected to any credible and independent peer
review. Indeed, the group has never published a paper or study in some reputable
scientific or medical journal. Its members met one day in August 2011 and in one sitting
found and concluded that existing contraceptives and IUDs are safe and non-
abortifacient.
6. WHO Opinions

Congress, according to the OSG relied heavily on WHO's documented opinions regarding
the legality and merit of contraceptives. But, firstly, that organization cannot be
considered an impartial authority on the use of contraceptives since it has always been
a strong advocate of birth control. Its Media Centre Fact Sheet on Family Planning dated
May 2013, reads:

WHO is working to promote family planning by producing evidence-based guidelines on

safety and service delivery of contraceptive methods, developing quality standards and
providing prerqualification of contraceptive commodities, and helping countries
introduce, adapt, and implement these tools to meei their needs, x x x

Secondly, the cited WHO studies are either inconclusive or constitute proof that
hormonal contraceptives and IUDs are indeed abortifacient. For instance, the WHO said
that "[w]hen used appropriately and in doses/ways recommended, none of these
methods have been shown to cause abortion of an implanted fetus."[8] That needs
repetition: "abortion of an implanted fetus."

In other words, the only assurance the WHO can give based on its studies is that, when
the contraceptive pill has been properly taken, it will not cause "abortion of an
implanted fetus." This is of course based on the WHO mind-set that the life of the
unborn begins only from the time of the implantation of the fetus on the uterine wall—
the same mind-set as the UHC Study Group. But, as repeatedly stated, this contravenes
what the Constitution says: the life of the unborn begins "from conception,"'[9] which is
from the time of the fertilization of the ovum as the RH law itself acknowledges.[10] The
WHO opinions do not, therefore, connect.

Notably, the WHO is reluctant to admit that most contraceptives perform three
functions: they 1) suppress ovulation; 2) prevent fertilization of an ovum by a sperm;
and 3) inhibit implantation of a fertilized ovum in the uterine lining.[11] When the first
two functions fail and an ovum is nonetheless fertilized (a phenomenon called
"breakthrough ovulation"), the contraceptives have the potential for functioning as
abortifacient and terminating the fertilized ovum by inhibiting implantation.[12] This is
abortion that the Constitution prohibits.

Despite its reluctance, however, the WHO implicitly acknowledges the fact in its several
opinions given to Congress. For instance, the WHO admits in one of its opinion papers
that hormonal contraceptives and IUDs "directly or indirectly have effect on the
endometrium that may hypothetically prevent implantation" although "there is no
scientific evidence supporting this possibility."[13] The endometrium is the inner lining of
the womb where the embryo lodges, draws food, and develops into a full grown child.[14]

The WHO's stated opinion stands examination. A hypothesis is a proposition tentatively

assumed in order to draw out its logical or empirical consequences and so test its accord
with the facts that are known or may be determined.[15] This means in this case that the
severe harm contraceptives and IUDs inflict on the endomeirium, a known fact, will,
given what science knows, logically or empirically prevent implantation and cause
abortion. Indeed, the U.S. Physicians Drug Reference for 1978 and 1998 categorically
state that an impaired endometrium prevents implantation.[16]

Not only this, the WHO further admits that, "[gjiven the high efficacy of combined oral
contraceptives in preventing ovulation, it is very unlikely that 'interference with
implantation' is a primary mechanism of contraceptive action."[17] The WHO repeats this
point in another paper.[18] Both statements imply that "interference with implantation,"
while not a primary mechanism of contraceptives, is its secondary mechanism. This
means that they also function as abortifacients.

More, the WHO also admits that progestin-only hormonal contraceptive can cause the
endometrium, where fertilized eggs are implanted, to suffer injury. It said, "Progestin-
only methods also cause changes in the endometrium. However, these changes show
great variability among patients, from atrophy to normal secretory structures."[19] This
means that If implantation of a fertilized ovum on the endometrium nonetheless
succeeds, the fertilized ovum would still die. As the WHO said in a reply to Congress, a
fertilized ovum is not viable unless it is able to implant on a healthy endometrium since
there is "very limited amount of metabolic support in a fertilized human
egg."[20] Hormonal contraceptives, like lUDs, have the potential for causing abortion.

The world is not in want of outstanding international research groups that do not get
funding from pro-abortion organizations or states. But Congress had not tapped them.
For instance, the International Agency for Research, on Cancer (IARC) said in 2011 that
"the progestogen component (of combined hormonal contraceptives) also...reduces the
receptivity of the endometrium for implantation.[21]

7. Drug Manufacturers Evidence

Drug manufacturers themselves, whose products the FDA has approved, state in their
inserts that their contraceptives perform the dual functions mentioned above. Although
the Court is not a trier of facts, it can take judicial notice of facts that are self-evident 
or  are  capable of unquestionable demonstration.[22] All one needs to do is buy such
contraceptives from the local drugstore and read the best that the manufacturers can
say about their products. One of them, from a popular oral contraceptive Lynstrenol
under the brand name of Daphne, was read into the record during the oral argument
and had not been challenged. It says:

Pharmacology: mechanics of action:

Effects on Endometrium: Lynestrenol (DAPHNE) impairs implantation, perhaps by

altering its special receptors for hormones. It may also be indirectly impaired by
interfering with the corpus lutein.

Effects 'on tubal action: Lynestrenol (DAPHNE) affects tubal secretions and microvili,
hence blastocyst and ovum transport are delayed.

Any unnatural delay In the transport of the zygote down through the fallopian tube to
the uterine wall will of course prevent timely implantation and cause the fertilized ovum
to be aborted. JSince abortion is prohibited in the Philippines, this statement is against
the manufacturer's interest and is admissible evidence against it.
Another hormonal contraceptive is called Trust Pill but goes by the generic name Ethinyl
Estradiol, Levonorgestrel, and Ferrous Fumarate, It is manufactured in Thailand by
Ponds Chemical and imported by DKT Philippines of Libis, Quezon City. The packet does
not bear the restriction that it must be prescribed by a physician. Its insert, also read
during the oral argument, states:

Prior to starting Ethinyl Estradiol + Levonorgestrel + Ferrous Fumarate (TRUST PILL)

tablet, pregnancy must be ruled out. However, should a pregnancy occur while taking
the tablet, the administration has to be withdrawn at once.

The pill is intended to prevent fertilization of the ovum. But if this is not achieved, it is
implicit from the above statement that continued use will harm the fertilized ovum and
cause abortion. The manufacturer is compelled to disclose this fact in the insert because
abortifacient is illegal in the Philippines. This pill is a double barrelled pill. It shoots the
ovum to prevent ovulation and shoots the zygote or little Junior if fertilization takes
place-abortion.

But the irony of this is that women who use Trust Pill presumably do so because they
believe that it will prevent conception. Consequently, it is not likely that they would
undergo testing for pregnancy from day to day while taking the pill to enable them to
decide when to stop using it and have their child.

Yasmin, a 3rd generation oral contraceptive, has this announcement for online
distribution in the Philippines: Yasmin "prevents ovulation (the release of an egg from
an ovary) and also causes changes in your cervical and uterine lining, making it harder
for sperm to reach the uterus and harder for a fertilized egg to attach to the uterus."[23]

IUDs also serve as abortifacients. The WHO on whom Congress relied in writing the RH
Law said that "During the use of copper-releasing IUDs the reaction is enhanced by the
release of copper ions into the luminal fluids of the genital tract, which is toxic to
sperm."[24] And how do these toxic ions affect the uterus where the fertilized ovum is
supposed to implant itself? The WHO said in the same paper[25] that "[t]he major effect
of all IUDs is to induce a local inflammatory reaction in the uterine cavity."

Inflammation is "a condition of some part of the body that is a reaction to injury,
infection, irritation, etc. and is characterized by varied combination of redness, pain,
heat, swelling, and loss of function."[26] In other words, the toxic chemicals from the IUD
will cause injury to the uterine cavity, preventing the fertilized egg or embryo from
being implanted or, if implanted, from surviving. That is abortion resulting from the use
of IUDs.

8. Significance of FDA's
"Don't-Use" Certification 

Actually, Congress fears that hormonal contraceptives and IUDs perform a third function
—disabling the endometrium of uterine lining-—that enable them to serve as weapons
of abortion, Proof of this is that the RH Law provides in the third sentence of Section 9
that these contraceptives and devices may, assuming that they also function as
abortifacients, pass FDA approval provided the latter issues a certification that they are
"not to be used as abortifacient.." Thus:
Sec. 9. x x x Any product or supply included or to be included in the EDI. must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient.

The above of course makes no sense since the two functions go together and the user
has no way, after taking the contraceptive, of stopping the second function from
running its course. The bad simply comes with the good. The certification requirement
violates the RH Law's tenet that "reproductive health rights do not include...access to
abortifacients."[27] It also contradicts the RH Law's stated policy of guaranteeing
universal access to "non-abortifacient" contraceptives."[28] Above all, this position is in
breach of the provision of the Constitution that outlaws abortion. In any event, I agree
with the Court's ruling that the second sentence of Section 9 does not authorize the
approval of family planning products and supplies that act as abortifacient.

This is not to say that all contraceptives and IUDs, present and future, double as
abortifacients and are not to be allowed. Annulling Section 9 merely means that it is
beyond the powers of Congress to legislate the safe and non-abortifacient status of
certain forms of artificial contraceptives. That function must remain with the FDA which
has the required scientific and technical skills for evaluating, testing, and approving each
contraceptive before it is publicly made available. The manufacturers and distributors
have their responsibilities, too. They have to warrant that their products do not function
as abortifacients.

It is appalling, however, that Daphne, Trust Pill, and Yasmin that clearly function as
abortifacient passed approval of the FDA. But this is a question that does not have to be
answered here. The important thing is that the FDA is to assume as before the
responsibility for preventing the violation of the law against abortion. It is of course
difficult to be completely positive that a contraceptive primarily intended to prevent
ovulation or fertilization of the ovum will absolutely not prevent implantation on the
uterine wall and cause abortion. The lack of convincing empirical evidence that it is so
may be an acceptable excuse. It is the certainty from the beginning, however, that a
given contraceptive has the inherent and substantial potential for causing abortion that
is not acceptable. It violates the constitutional right to life of the unborn.

Section 9 and
the Right to Health

Section 15, Article II, of the 1987 Constitution makes it the duty of the State to "protect
and promote the right to health of the people." Health means physical and mental well-
being; freedom from disease, pain, or defect; health means normalcy of physical
functions.[29] Maternal health according to Section 4 of the RH Law refers to the health
of a woman of reproductive age including, but not limited to, during pregnancy,
childbirth and the postpartum period.

This means that women have the right to be free from government-sponsored sickness,
government-sponsored pain, and government-sponsored defect. Since healthy vital
organs of the body form part of the right to health, women have the right to have
normally functioning vital organs. They have the right to walk in the park or in the malls
free from debilitating illnesses and free from worries and fears over contraceptives that
the government assures them are safe. The government cannot promote family
planning programs that violate the women's right to health. A law that misleads women
and states that hormonal contraceptives and IUDs are safe violates their constitutional
right to health.

1. Safe or Unsafe Use of Hormonal

Contraceptives and IUDs

Since the law does not define the meaning of the term "safe," it is to be understood
according to its common meaning: "free from harm, injury, or risk."[30] The RH Law itself
recognizes that the use of contraceptives produces side effects or other harmful results.
Thus, it directs the FDA in Section 19 to issue strict guidelines with respect to their use,
acknowledging the need for abundant caution.

Do warnings of side effects and possible lasting harm make contraceptives and IUDs
safe? The answer is of course no. For instance, a simple warning against pet snakes
would say, "Look at this snake. It is a safe pet to keep in the house. But just don't keep it
hungry. Don't forget to close the small door of the cage when you feed it. And watch
those small kids."

It is the same with the warnings for hormonal contraceptives: "This is safe although you
will have spotting, breakthrough bleeding, and prolonged periods. Don't worry. You will
gain weight, loss your sexual urge, develop pimples, and breast tenderness. You may
experience headache and dizziness as well as vaginal dryness. But that is quite alright.
Incidentally, on occasions you may have liver disorders, clotting disorders, breast and
cervical cancer, sickle-cell anemia, hormone-active tumors, hyperlipidemia, severe
cardiovascular diseases, previous or existing thrombo embolic disease, and idiopathic
jaundice. It is possible you will have a heart attack. I won't worry if I were you."

The dangers of those side effects are more worrisome since the RH Law fails to provide
standards of safe use of contraceptives such as:
(a) a prescribed standard of tolerance for side effects.
(b) the service of a qualified physician who can advice the user, especially the poor, of
the dangers of contraceptives, not just literature written in English so she can make
intelligent choice;
(c) the service of a qualified physician who will, while she is under contraceptives,
monitor their effects on her, treat her for adverse side effects and complications, and
provide her with the right medicine; and
(d) the contraceptives she takes do not act at the same time as abortifacients in case  an
ovum is fertilized despite the use of such contraceptives.

The fact is that contraceptives interfere with normal body functions. Women have
ovaries so these can produce ova or eggs that can be fertilized to ensure procreation
and the continuation of the human race. Contraceptives prevent healthy ovaries from
ovulating, which is the reason for their being ovaries. One cannot disable the woman's
ovaries or monkey with its functions .for long periods without affecting her health.
Medical studies and reports show this to be the case.[31]

2.  Drug's Side Effects

Versus Benefits

The OSG of course points out that, on balance, the side effects mentioned are
outweighed like most medicines by the benefits that their use will bring. But that is a
false analogy. Medicine is intended to cure illness. Consequently, the doctor can balance
the illness that it wants to cure against the illness that its side effects bring. They are on
the same level of exchange: a minor illness weighed against a major illness. For instance,
the fact that medicine X may cause manageable problems in the patient's liver is
outweighed by the fact that it can, more than any other medicine, hinder a fatal heart
attack.

Obviously, this kind of balancing cannot apply to artificial contraceptives since the harm
or illness they can cause users, especially women, is not on the same level of exchange
as the consequent benefit, namely, sexual pleasure without pregnancy. Besides, other
methods that produce no side effects exist. A WHO 2013 report that such methods have
good results when used properly. Their rates of success under correct and consistent
use are: male condoms 98%; withdrawal 96%; fertility awareness method 95-97%; and
abstinence: 100%

This is not to say that contraceptives and IUDs can pass approval by the FDA only if they
are absolutely safe. This is unrealistic and the Court must trust married couples and
mature women to have the proper discernment for deciding whether to take the risk of
their side effects. But the FDA should not trust the manufacturers and distributors with
unbridled authority to write their own guidelines to users. It must see to it that these
guidelines disclose those side effects in clear and understandable terms from the
layman's point of view.

3. Substantive Due Process

The legislature's attempt to elevate into law its arbitrary finding that hormonal
contraceptives and IUDs are safe and non-abortifacient is irrational. The determination
of what medicine is safe and useful to a person is a function of the science of medicine
and pharmacy. It is not for the Court or the legislature to determine. Raising present-day
scientific or medical views regarding contraceptives to the level of law, when contested
by opposing scientific or medical views, is an arbitraiy exercise of legislative power:

Medical and scientific findings are constantly changing. For example, the International
Agency for Research on Cancer of the WHO reported that it was once believed that
combined raenopausal therapy was "possibly carcinogenic to humans." But the WHO
cancer research organization said in 2005 that "The new evaluation concluded, based on
an expanded study base, that it is carcinogenic to humans [not just possibly
carcinogenic], increasing a woman's risk of breast cancer." In fact, this research
organization places oral contraceptives in the highest grade of cancer-producing
products. Still, Congress would declare by force of law that oral contraceptives are safe.
God save this country if it must rely and stake the lives of its people on Congressional
judgment regarding scientific and medical truths.

Fortunately, the Court rules in this case that Congress cannot elevate into law its view
that hormonal contraceptives and intrauterine devices are safe and non-abortifacient.
The first sentence of Section 9 should be construed as ordaining their inclusion in the
National Drug Formulary only after they have been tested, evaluated, and approved by
the FDA. Only the FDA is competent to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. This finds support in
the second sentence of Section 9 that provides a process for the inclusion or removal of
family planning supplies from the National Drug Formulary.

Section 7, Section 23(a)(3),

Section 23(a)(2), Section 23(b).
and the Free Exercise of Religion

Section 7 of the RH Law requires all public health facilities to provide the full range of
family planning services. This is also required of private health facilities, except in the
case of non-maternity specialty hospitals and those operated by religious groups. The
latter hospitals are, however, required to immediately refer the person seeking such
services to the nearest health care facility that will do the task. Thus, Section 7 provides:

Section 7. Access to Family Planning.  - All accredited public health facilities shall provide
a full range of modem family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and
marginalized cou ples having infertility issues who desire to have children: Provided,
That family planning services shall likewise be extended by private health facilities to
paying patients with the option to grant free care and services to indigents. except in
the case of non-maternity specialty hospitals and hospitals owned and operated by a
religious group, but they have the option to provide such full range of modern family
planning methods; Provided, further, That these hospitals shall immediately refer the
person seeking such care and services to another health facility which is conveniently
accessible: Provided, finally. That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344. (Emphasis supplied)

Related to the above is Section 23(a)(3) of the RH Law that makes it a crime for any
health care service provider (hospital, clinic, doctor, nurse, midwife, and health worker),
[32]
 whether public or private, to refuse to extend quality health care services and
information on account of the person's marital status, gender, age, religious convictions,
personal circumstances, or nature of work.

The law provides, however, that the health care service provider's objection based on
his or her ethical or religious beliefs is to be respected. Thus, he or she is not to be
compelled to render the services that would interfere with the natural human
reproduction process if the same conflicts with his conscience. This is consistent with
Section 5, Article III of the 1987 Constitution which provides that no law shall be made
prohibiting a person's free exercise of his religion.

But the irony of it is that at the next breath the RH Law would require the conscientious
objector to immediately refer the person, whose wants he declines to serve, to the
nearest health care service provider who will do what he would not. The penalty for
failing to do this is imprisonment for 1 to 6 months or payment of a fine of PI 0,000 to PI
00,000 or both imprisonment and fine. If the offender is a juridical person, the penalty
shall be imposed on its president or responsible officer.[33]
Specifically, Section 23(a)(3) provides:

Section 23. Prohibited Acts. - The following acts are prohibited: (a) Any health care
service provider, whether public or private, who shall;

xxxx

(3) Refuse to extend quality health care services and information on account of the
person's marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and
services to another health care service provider within the same facility or one which
is conveniently accessible: x x x

Section 23(a)(3) makes no sense. It recognizes the constitutional right of the

conscientious objector not to provide artificial contraceptives that he believes would kill
the unborn after it has been conceived. Yet, he must help see it done by someone else.
For instance, the Catholic religion might consider it a sin similar to murder to implant a
copper IUD into a woman since it would kill the unborn by preventing it from attaching
to a womb atrophied by poison from the IUD. The RH law respects the Catholic doctor's
right to refuse to do what his faith regards as murder. But he must hasten, at the pain of
punishment, to refer the woman to another doctor who is willing to do it.

So if the law would excuse the Catholic doctor from committing what in his faith
amounts to murder, would it be reasonable for the law to compel him to help the
woman and show her how she can have her child murdered by another doctor? If so,
the Catholic doctor would in effect say to the other doctor, "I can't murder this woman's
child but please do it in my place." This definitely compels him to do something against
his conscience in violation of his constitutional right to the free exercise of his religion.

The OSG cites the Ebralinag case[34] concerning students who were members of the

Jehovah's witnesses. They refused to salute the flag and for this reason were expelled
from school. But the Court said that compelling them to salute the flag would violate
their religious belief that salutes are reserved to-God. It is the same here in the sense
that the RH law actually recognizes the right of a Catholic doctor not to be compelled to
implant a copper IUD into a woman's womb because it amounts, according to his
religious belief, to the murder of an unborn child. The Constitution and the law respect's
the doctor's religious belief.

Of course, as the OSG points out, school authorities are not powerless to discipline
Jehovah's witnesses' members if they commit breaches of the peace by disruptive
actions that would prevent others, like their classmates and teachers, from peacefully
saluting the flag and singing the national anthem. The OSG implies from this that while
the RH Law can similarly respect the conscientious objector's right not to do what his
religion forbids, it can compel him help the person get the declined service from
another health care service provider.

But it is clear from Ebralinag that what is required of the Jehovah's witnesses is to

respect the right of other students and their teachers by-keeping quiet and not
disrupting the flag ceremony. Keep quiet and let alone; that is the rule. In the case of
the Catholic doctor, he should do nothing to impose his religious belief on the woman.
He should do nothing that will deny the woman her right to get that copper IUD
implantation elsewhere. Like the Jehovah's witnesses, the equivalent conduct for the
Catholic doctor is to keep quiet and let alone.

Unfortunately, the RH Law requires him to take steps to ensure that the woman is
pointed to another place where she could get the IUD implantation she wants. In effect,
the law compels the doctor to do more than just keep quiet and let alone It compels him
at the pains of going to jail to get involved and help in the commission of what his
religious belief regards as amounting to the murder of a child. And this is in order to
satisfy the need of the woman and her partner for sex without pregnancy. Remember,
this is not the case of a bleeding woman needing immediate medical attention.

The Court has correctly decided to annul Section 23(a)(3) and the corresponding
provision in the RH-IRR, particularly section 5.24, as unconstitutional insofar as they
punish any health care provider who fails and/or refuses to refer a patient not, in an
emergency or life-threatening case, to another health care service provider within the
same facility or one which is conveniently accessible regardless of his or her religious
beliefs.

Section 23(a)(l) and the

Principle of Void for Vagueness

Due process demands that the terms of a penal statute must be sufficiently clear to
inform those who may be subjected to it what conduct will render them liable to its
penalties. A criminal statute that "fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by statute," or is so indefinite that "it
encourages arbitrary and erratic arrests and convictions," is void for vagueness. A vague
or indefinite statute is unconstitutional because it places the accused on trial for an
offense, the nature of which he is given no fair warning.[35]

Section 23(a)(l) of the RH Law provides:

Section 23. Prohibited Acts. -The following acts are prohibited: (a) Any health care
service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a fufl range of
legal, medically-safe, non-abortifacient and effective family planning methods;

The public health care service provider referred to are of course the hospitals, the
doctors, the nurses, the midwives, and the other health workers described elsewhere in
the law.[36] They will, if found guilty of the offense, suffer imprisonment of 1 to 6 months
or a fine of PI0,000 to PI00,000 or both imprisonment and fine.[37]

Petitioners contend that Section 23(a)(l) above is void for vagueness. But some points
out that the term "knowingly" used in the law, assailed by petitioners as vague, is
sufficiently clear in that it means awareness or deliberateness that is intentional and
connotes malice.

But "knowingly" and "maliciously" have meanings that set them apart. "Knowingly"
means mere awareness or deliberateness. "Maliciously," on the other hand, connotes
an "evil intention."[38] If the law meant to include malice as an ingredient of the offense
described in Section 23(a)(l), it would have added the term "maliciously" to "knowingly."
Nothing in the wordings of the law implies malice and the need for criminal intent. The
crime as described is malum prohibition.

The term "knowingly" is vague in the context of the law because it does not say how
much information the offender must have regarding those programs and services as to
charge with an obligation to impart it to others and be penalized if he "knowingly" fails
to do so. The depth of a person's information about anything varies with the
circumstances.

One who is running the programs or sendees would naturally have the kind of
information that obligates him to disclose them to those who seek the same and be
punished if he "knowingly" refuses to do so. Yet, this circumstance of direct involvement
in the program or sendee is not required in Section 23(a)(l). On the other hand, one who
merely reads about those programs and services, like a private hospital nurse who
receives a letter offering free program on birth control, would know little of the detailed
contents of that program and the competence of those who will run it. But since the law
also fails to state what the term "information" means, that private nurse could be
charged with "knowingly" withholding information about the birth control program she
learned from reading mails if she does not disseminate it to others.

Another element of the offense is that the health care service provider must knowingly
withhold or restrict dissemination of the information that he has. It fails to state,
however, to whom he has an obligation to make a disclosure. It also gives him no
discretion to decide to whom such information would be suitable and to whom not.
Consequently, the health care service provider would be vulnerable to charges of
violation of the law where he is denied the chance to know before hand when the
obligation to disclose presents itself.

Section 23(a)(l) and

the Freedom of Expression

Section 23(a)(l) also punishes any health care service provider who knowingly provides
"incorrect" information regarding programs and services on reproductive health. But the
RH Law does not define what is "correct" or "incorrect" information regarding such
programs and services. And it does not require the publication of what information are
"correct" and what are "incorrect" sufficient to put prospective offenders on guard.

Besides there is no final arbiter in the world over issues concerning correct or incorrect
reproductive health science on which reproductive health programs and services must
depend. For instance, while Section 9 regards as law the scientific proposition that
hormonal contraceptives and IUDs are safe and non-abortifacient, there is abundant
medical and scientific evidence, some from the WHO itself that they are not.
If the legislature can dictate what the truth is regarding medical and scientific issues of
the day and send to jail those who disagree with it, this country would be -in deep
trouble. They threw Galileo into jail for saying that the earth was round when the
authorities of his time believed that it was flat. Public health will be endangered if
Congress can legislate a debatable scientific or medical proposition into a binding law
and punish all dissenters, depriving them of their freedom of expression.

Most competent doctors read the latest in scientific and medical journals and reports. If
these convince a doctor that oral pills and copper IUDs are not safe or work as
abortifacient, he would be unable to tell his patients these until the law is repealed.
Otherwise, he would be giving them "incorrect" information that would send him to jail.
This places a health issue affecting public interest outside the scope of scientific and
medical investigation.

The doctors who make up the Universal Health Care Study Group, on whose paper
Congress relied on, hold the view that the life of the unborn child begins only from the
moment of implantation of the embryo on the uterine wall, contrary to what the
Constitution provides. This means that if they provide such "incorrect" information to
their patients, they could go to jail for it. But no law should be passed outlawing medical
or scientific views that take exceptions from current beliefs.

Moreover, the State guarantees under Section 2 of the RH Law the right of every woman
to consider all available reproductive health options when making her decision. This
implies that she has the right to seek advice from anyone she trusts. Consequently, if a
woman wanting to space her pregnancy seeks the advice of a Catholic physician she
trusts, the latter should not be sent to jail for expressing his belief that taking oral pills
or using copper IUDs can cause abortion that her faith prohibits. This is valid even if
others do not share the faith. Religious conscience is precisely a part of the
consideration for free choice in family planning.

I concede, however, that my above views on Section 23(a)(l) could be better appreciated
in actual cases involving its application rather than in the present case where I go by the
bare provisions of the law. For now I am satisfied that Section 23(a)(l) has been declared
void and unconstitutional insofar as it punishes any health care provider who fails or
refuses to disseminate information regarding programs and services on reproductive
health regardless of his or her religious beliefs.

[1]
 Section 3(c), Republic Act 10354.

[2]
 World Population Prospects: 2008 revision, (n.d.) United Nations, Department of
Economics and Social Affairs.

[3]
 The Philippine Star. July 15, 2013.

[4]
 Conception & Pregnancy: Ovulation, Fertilization, and More,
httpr/webmd.com/baby/guide/understar-Jing-conception, last uploaded 8/1/2013
12:05 pm.
[5]
 Webster's Third New International Dictionary. 1993 Edition.

[6]
 Sadler. T.W. Langman's Medical Embryology 11th Ed 2010, Lippincott Williams and
Wilkins.

[7]
 WebMD Medical Reference from Healthwise, citing Grimes DA (2007). Intrauterine
devicds (IUDs). In RA Hatcher et al., eds., Contraceptive Technology, 19th ed., pp. 117-
143. New York: Ardent Media.

[8]
 WHO Expert Opinion dated November 7, 2006, Annex 1 of OSG Comment, p. 4.

[9]
 Section 12, Article II, 1987 Constitution of the Philippines.

[10]
 Section 4, Republic Act 10354.

[11]
 The Gurtmacher Institute (2005), citing the American College of Obstetricians and
Gygnecologists.

[12]
 Textbook of Contraceptive Practice of Cambridge (Cambridge University Press).

[13]
 WHO October 27, 2010 position paper, Note 7, p. 3.

[14]
 Webster's New World Dictionary. 3rd Edition, pp. 448 (endometrium) and 1470
(uterus).

[15]
 Webster's Third New International Dictionary, p. 1117.

[16]
 U.S. Physicians Drug Reference, 1978, p. 1817; 1997, p. 2746.

[17]
 WHO November 7,2006 Expert Opinion, Note 7, Annex_______ , p. 3.

[18]
 WHO position paper of October 27, 2010. id., Annex _, p. 2.

[19]
 WHO Expert Opinion dated November 7. 2006, Note 7. Annex __ , p. 3.

[20]
 WHO January 17, 2011 Response to Queries, Note 7, Annex______ . p. 3.

[21]
 http://inonographs.iare.fr/ENG/Monographs/von00A-19.pdf. Retrieved October 3,
2012. "

[22]
 S ection 2. Rule 3 29 of the Rules of Evidence.

[23]
 Sulit.com.ph, 2012.

[24]
 WHO November 7, 2006 Expert Opinion Id. Annex _____, pp. 3-4.

[25]
 At p. 3.

[26]
 Webster's "New World College Dictionary, 3rd edition, p. 692.
[27]
 Section 4 (s). Id.

[28]
 Section 2, RH Law.

[20]
 Note 2, p. 621.

[30]
 Note 10. p, 1998.

[31]
 Heinemann, Lothar A .J; Lewis, Michael Aar_button.gif: Thorogood, margaret1 _#$@
%!#_ar_button gif; Spitzer, Walter O.; et al. British Medical Journal, International
editionspacer.gif; 315.7121.1_#$@%#_spacer.gif: (December 6. 1997): 1502-4.

[32]
 See Section 4 Definition of Terms; par. (n) meaning of term "public health care
service provider."

[33]
 Section 24, RH Law.

[34]
 Ebralinag v. The Division Superintendent of School of Cebu, GR. No. 95770, 219 SCRA
256.

[35]
 People v, dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163.

[36]
 See Section 4 Definition of Terms; par, (n) meaning of term "public health care
service provider."

[37]
 Section 24, RH Law.

[38]
 Webster's Third New International Dictionary, p. 1367.

CONCURRING AND DISSENTING OPINION

REYES, J.:

I concur with the ponencia's declaration that Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012, perused in
its entirety, is not recusant of the various rights enshrined in our Constitution.
Particularly, I concur that: (1) R.A. No. 10354, m making contraceptives and other
reproductive health products and services more accessible, does not run counter to the
constitutional right to life; (2) R.A. No. 10354, in giving priority to the poor in the
implementation of gove1nment programs to promote basic reproductive health care,
does not violate the equal protection clause of the Constitution; (3) Section 9,[1] in
mandating the inclusion of family planning products and supplies in the Philippine
National Drug Formulary System, does not violate the right to health of the people; (4)
Section 15[2] is not anathema to freedom of religion; (5) Section 17[3] does not amount to
involuntary servitude; (6) the delegation by Congress to the Food and Drug
Administration (FDA) of the power to determine whether a supply or product is to be
included in the Essential Drugs List constitutes permissible delegation of legislative
powers; and (7) Sections 5,[4] 6,[5] and 16[6] do not amount to an encroachment on the
autonomy of local governments.

The ponencia declared Section 7, insofar as it dispensed with the requirement of written

parental consent for minors who are already parents or have had a miscarriage, with
regard to access to modem methods of family planning, unconstitutional as it infringes
on the right to privacy with respect to one's family. I agree that Section 7, inasmuch as it
dispensed with the requirement of parental consent, is unconstitutional. Nevertheless,
in addition to ponencia's ratiocination on the right to privacy, I would discuss further
that Section 7, by dispensing with the requirement of parental consent for minors in
certain cases, violates Section 12, Article II of the 1987 Constitution.

I agree with the ponencia's conclusion that the attack on the constitutionality of Section

14, which provides for age- and development appropriate reproductive health
education to adolescents, must fail. However, I disagree with the ponencia insofar as it
declared that the issues raised against the constitutionality of Section 14 are premature
as the Department of Education (DepEd) has yet to prepare a curriculum on age and
development-appropriate reproductive health education. The Court has already made
pronouncements on the constitutionality of the other provisions of R.A. No. 10354
despite the lack of an actual case or controversy, the issues presented being matters of
transcendental importance. There is thus no reason for the Court to avoid a definitive
ruling on the constitutionality of Section 14. It is my view, which I will expound later,
that Section 14 does not: (1) violate the academic freedom of educational institutions;
(2) intrude into the natural and primary right of parents to rear their children; and (3)
amount to an infringement of the freedom of religion.

I dissent, however, from the ponencia's conclusion that the following provisions ofR.A.

No. 10354 are unconstitutional:

(1) Section 7, insofar as it imposes on non-maternity specialty hospitals and hospitals

owned and operated by a religious group the duty to refer a person seeking access
to modem family planning methods to another health facility, for being violative of
the freedom of religion;
(2) Section 23(a)(l), which punishes any health care service provider who withholds
information or restricts the dissemination thereof regarding programs and services
on reproductive health, and Section 23(a)(2), which punishes any health care
service providers who refuse to perform reproductive health procedures on the
ground of lack of consent or authorization in certain cases, for being violative of the
freedom of religion;
(3) Section 23(a)(2)(i), which allows a married individual to undergo reproductive
health procedure sans the consent of his/her spouse, for being contrary to one's
right to privacy;
(4) Section 23(a)(3), insofar as it requires a conscientious objector to immediately refer
a person seeking reproductive health care and service to another health care
service provider, for being violative of the freedom of religion;
(5) Section 23(b), which punishes any public officer charged with the duty to
implement the provision of R.A. No. 10354 who prohibits or restricts the delivery of
 reproductive health care services, and Section 5.24 of the Implementing Rules and
Regulations (IRR) of R.A. No. 10354, which, inter alia, provides that those charged
with the duty to implement the provisions of R.A. No. 10354 cannot be considered
as conscientious objectors, for being violative of the freedom of religion; and
(6) Section 17, insofar as it included the rendition of at least fortyeight (48) hours
annual  pro bono reproductive health services as a prerequisite in the accreditation
under PhilHealth.

Section 7, inasmuch as it dispenses

with the requirement of written parental
consent, violates Section 12, Article II
of the Constitution.

Parents have the natural and primary right and duty to nurture their children. This right
is recognized by Section 12, Article II of the Constitution, which pertinently provides
that:

Section 12. x x x The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the
support of the Government.

Concomitant to their natural and primary right and duty to provide for, care, and
nurture their children, parents exercise parental authority over the persons of their
unemancipated children. In this regard, Article 209 of the Family Code[7] provides that:

Article 209. Pursuant to the natural right and duty of parents over the person and
property of their unemancipated children, parental authority and responsibility shall
include the caring for and rearing them for civic consciousness and efficiency and
the development of their moral, mental and physical character and well-being.
(Emphasis ours)

The authority that is exercised by parents over their unemancipated children includes
the right and duty to enhance, protect, preserve, and maintain their physical and mental
health and to represent them in all matters affecting their interests.[8] The authority
exercised by parents over their unemancipated children is terminated, inter alia, upon
emancipation of the child.[9] Emancipation takes place upon attainment of the age of
majority, which commences at the age of eighteen years.[10]

Section 7 of R.A. No. 10354 pertinently provides that:

Section 7. Access to Family Planning. - All accredited public health facilities shall provide
a full range of modem family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have
children: Provided, That family planning services shall likewise be extended by private
health facilities to paying patients with the option to grant free care and services to
indigents, except in the case of non-maternity specialty hospitals and hospitals owned
and operated by a religious group, but they have the option to provide such full range of
modern family planning methods:  Provided, further,  That these hospitals shall
immediately refer the person seeking such care and services to another health facility
which is conveniently accessible: Provided, finally, That the person is not in an
emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided,  That minors will not be allowed access to modern
methods of family planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage.

Section 7 seeks to make modem family planning methods more accessible to the public.
The provision mandates that no person shall be denied information and access to family
planning services, whether natural or artificial. However, the last proviso of Section 7
restricts the access of minors to modem methods of family planning; it requires a
written parental consent before a minor may be allowed access thereto. This is but
recognition of the parental authority that is exercised by parents over the persons of
their unemancipated children. That it is both a duty and a right of the parents to protect
the physical health of their unemancipated children.

However, Section 7 provided an exception to the requirement of written parental

consent for minors. A minor who is already a parent or has had a miscarriage may be
allowed access to modem methods of family planning notwithstanding the absence of a
written parental consent therefor. This runs afoul of the natural and primary right and
duty of parents in the rearing of their children, which, under Section 12, Article II of the
Constitution, should receive the support of the government.

There exists no substantial distinction as between a minor who 1s already a parent or

has had a miscarriage and a minor who is not yet a parent or never had a miscarriage.
There is no cogent reason to require a written parental consent for a minor who seeks
access to modem family planning methods and dispense with such requirement if the
minor is already a parent or has had a miscarriage. Under the Family Code, all minors,
generally, regardless of his/her circumstances, are still covered by the parental authority
exercised by their parents. That a minor is already a parent or has had a miscarriage
does not operate to divest his/her parents of their parental authority; such
circumstances do not emancipate a minor.

It is cardinal with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for obligations the
State can neither supply nor hinder.[11] Most children, even in adolescence, simply are
not able to make sound judgments concerning many decisions, including their need for
medical care or treatment. Parents can and must make those judgments.[12]

Considering that the last proviso of Section 7 operates to divest parents of their

parental authority over the persons of their minor child who is already a parent or has
had a miscarriage, the same must be struck down for being contrary to the natural and
primary right and duty of parents under Section 12, Article II of the Constitution.

Section 14 does not violate the academic

freedom of educational institutions nor
infringe on the natural and primary right
and duty of parents to rear their children.
Section 14[13] of R.A. No. 10354 mandates the provision of age- and development-
appropriate reproductive health education, which would be taught to adolescents[14] in
public schools by adequately trained teachers. The curriculum on age- and
development-appropriate reproductive health education, which shall be formulated by
the DepEd after consultation with parents-teachers-community associations, shall
include subjects such as: values formation; knowledge and skills in self-protection
against discrimination; sexual abuse and violence against women and children and other
forms of gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood.

The petitioners claim that Section 14, by mandating the inclusion of age- and
development-appropriate reproductive health education to adolescents, violates the
academic freedom of educational institutions since they will be compelled to include in
their curriculum a subject, which, based on their religious beliefs, should not be taught
to students.[15]

The petitioners' claim is utterly baseless. Section 5(2), Article XIV of the Constitution
guarantees all institutions of higher learning academic freedom. The institutional
academic freedom includes the right of the school or college to decide and adopt its
aims and objectives, and to determine how these objections can best be attained, free
from outside coercion or interference, save possibly when the overriding public welfare
calls for some restraint. The essential freedoms subsumed in the term "academic
freedom" encompass the freedom of the school or college to determine for itself: (1)
who may teach; (2) what may be taught; (3) how lessons shall be taught; and (4) who
may be admitted to study.[16]

An analysis of the foregoing claim requires a dichotomy between public and private
educational institutions. The last sentence of Section 14 provides that the age- and
development-appropriate reproductive health curriculum that would be formulated by
the DepEd "shall be used by public schools and may be adopted by private schools." The
mandated reproductive health education would only be compulsory for public schools.
Thus, as regards private educational institutions, there being no compulsion, their
constitutional right to academic freedom is not thereby violated.

As regards public educational institutions, though they are mandatorily required to

adopt an age- and development-appropriate reproductive health education curriculum,
the claimed curtailment of academic freedom is still untenable. Section 4(1), Article XIV
of the Constitution provides that "[t]he State x x x shall exercise reasonable supervision
and regulation of all educational institutions." The constitutional grant of academic
freedom does not withdraw from the State the power to supervise and regulate
educational institutions, whether public or private. The only requirement imposed by
the Constitution on the State's supervision and regulation of educational institutions is
that the exercise thereof must be reasonable.

Congress deemed it appropriate to include a provision on age- and development-

appropriate reproductive health education as a means to address the rise of teenage
pregnancies.[17] In a 2002 survey conducted by the University of the Philippines
Population Institute, it was shown that 23% of young people aged 15 to 24 years old had
already engaged in pre-marital sex; that pre-marital sex was prevalent among 31.1% of
the boys and 15.4°/o among the girls.[18] The survey, after a consideration of other
factors, concluded that many young people, despite having inadequate knowledge on
reproductive health problems, engage in risky sexual behavior.[19] That, despite having
liberal views on sex and related matters, they rarely seek medical help for reproductive
health problems.[20] Poignantly, given this factual milieu, the provision on age- and
development-appropriate reproductive health education under Section 14 is
reasonable.

The importance of integrating the subject of the dangers and dire consequences of
alcohol abuse or even the menace of dangerous drugs in the curricula of primary and
secondary educational institutions cannot be disputed. The prevalence of teenage
pregnancy and the risks surrounding it is just as equally alarming as the dangers of
alcohol and substance abuse. Accordingly, I find nothing objectionable in the integration
of age- and development-appropriate reproductive health education in the curricula of
primary and secondary schools.

The petitioners further assert that Section 14 violates the right to privacy of the parents
as it amounts to a denigration of "the sanctity of the family home" and has "usurped the
rights and duties of parents to rear and educate their children in accordance with their
religious conviction by forcing some rules and State programs for reproductive health
contrary to their religious beliefs." The petitioners claim that parents have the primary
duty to educate their children, especially on matters affecting reproductive health. They
thus allege that the State's interference in such a delicate parental task is unwarranted
and should not be countenanced.

It is conceded that parents, as stated earlier, indeed have the natural and primary right
and duty in the rearing of their children.[21] The Constitution further affirms such right
and duty by mandating that the State, in providing compulsory elementary education
for all children of school age, is proscribed from imposing a limitation on the natural
rights of parents to rear their children.[22] At the core of the foregoing constitutional
guarantees is the right to privacy of the parents in the rearing of their children.

Essentially, the question that has to be resolved is whether the inclusion of age- and
development-appropriate reproductive health education in the curriculum of primary
and secondary schools violates the right to privacy of the parents in the rearing of their
children. The standard to be used in determining the validity of a government
regulation, which is claimed to infringe the right to privacy of the people, was explained
by the United States (US) Supreme Court in the land mark case of Griswold v.
Connecticut[23] in this wise:

The present case, then, concerns a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees. And it concerns a law which, in
forbidding the use of contraceptives, rather than regulating their manufacture or sale,
seeks to achieve its goals by means having a maximum destructive impact upon that
relationship. Such a law cannot stand in light of the familiar principle, so often applied
by this Court, that a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.
[24]
 (Emphasis ours)

Thus, when a government regulation is claimed to infringe on the right to privacy, courts
are required to weigh the State's objective against the privacy rights of the people.
Although considered a fundamental right, the right to privacy may nevertheless
succumb to a narrowly drawn government regulation, which advances a legitimate and
overriding State interest.[25]

As explained earlier, Section 14 aims to address the increasing rate of teenage

pregnancies in the country and the risks arising therefrom, which is undeniably a
legitimate and overriding State interest. The question that has to be asked then is
whether Section 14, in advancing such legitimate and overriding State interest, has
employed means, which are narrowly tailored so as not to intrude into the right to
privacy of the people.

Under Section 14, the formulation of the curriculum on age- and development-
appropriate reproductive health education is a collaborative process. It provides "[t]hat
flexibility in the formulation and adoption of appropriate course content, scope and
methodology in each educational level or group shall be allowed only after
consultations with parents-teachers community associations, school officials and
other interest groups." Section 14 thus takes into account the relevant concerns of
parents and other interest groups in the adoption and implementation of the proposed
age- and development-appropriate reproductive health education; any and all
objections thereto based on religious beliefs would be considered during the
formulation of the curriculum. In this sense, Section 14, in taking into account the
relevant concerns of parents and other interest groups in the formulation of the
curriculum, has been narrowly tailored so as not to invade the right to privacy of the
parents.

Equally untenable is the petitioners' claim that the provision of age and development-
appropriate reproductive health education under Section 14 unduly burdens their
freedom of religion.[26] A similar claim was resolved by the Supreme Court of Hawaii in
Medeiros v. Kiyosaki.[27] In Medeiros, Hawaii's Department of Education, as part of its
family life and sex education program, exhibits a film series entitled "Time of Your Life"
to fifth and sixth grade students in public schools. The plaintiffs therein, parents and
guardians of fifth and sixth grade students, sought to enjoin the exhibition of the said
film series, claiming, inter alia, that the said program unduly interferes with their
religious freedom.

The Supreme Court of Hawaii held that the Department of Education's family life and
sex education program does not infringe on the religious freedom of the plaintiffs
therein. Relying on the case of Epperson v. Arkansas,[28] the Supreme Court of Hawaii
stressed that upholding the claim of the plaintiffs therein would amount to tailoring the
teaching and learning in their schools to the principles or prohibitions of a religious sect,
which is anathema to the non-establishment clause.

Epperson involves a challenge to the constitutionality of the "anti evolution" statute

adopted by the State of Arkansas in 1928, which makes it unlawful for a teacher in any
State-supported school or university to teach the theory or doctrine that mankind
ascended or descended from a lower order of animals, or to adopt or use in any such
institution a textbook that teaches this theory. In declaring the statute unconstitutional,
the US Supreme Court declared that:

Government in our democracy, state and national, must be neutral in matters of

religious theory, doctrine, and practice. It may not be hostile to any religion or to the
advocacy of no-religion, and it may not aid, foster, or promote one religion or religious
theory against another or even against the militant opposite. The First Amendment
mandates governmental neutrality between religion and religion, and between
religion and nonreligion.

As early as 1872, this Court said: "The law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 80
U.S. 728. This has been the interpretation of the great First Amendment which this
Court has applied in the many and subtle problems which the ferment of our national
life has presented for decision within the Amendment's broad command.

xxxx

There is and can be no doubt that the First Amendment does not permit the State to
require that teaching and learning must be tailored to the principles or prohibitions of
any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a
state law to provide free bus service to school children, including those attending
parochial schools, said: "Neither [a] State nor the Federal Government can pass laws
which aid one religion, aid all religions, or prefer one religion over another." 330 U.S. 1,
330 U.S. 15 (1947)[29] (Emphasis ours)

Declaring the provision of an age- and development-appropriate reproductive health

education to primary and secondary students unconstitutional on the pretext that it
conflicts with the religious convictions of others would amount to an endorsement of
religion contrary to the non-establishment clause.[30] The petitioners' claimed
infringement of their religious freedom is flawed in two ways: first, Section 14 takes into
account the religious beliefs of parents by soliciting their participation in the formulation
of the curriculum on age- and development-appropriate reproductive health education;
and second, to permit the petitioners to control what others may study because the
subject may be offensive to their religious or moral scruples would violate the non-
establishment clause.[31]

The "duty to refer" under Sections

7 and 23(a)(3) does not restrict the
freedom of religion.

The ponencia declared that the "duty to refer" imposed by Sections 7 and 23(a)(3) of

R.A. No. 10354 is repugnant to the constitutional right to freedom of religion and, thus,
should be struck down as unconstitutional. The ponencia explained that "[o]nee the
medical practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs."
The ponencia further described the said "duty to refer" as "a false compromise because
it makes pro-life health providers complicit in the performance of an act that they find
morally repugnant or offensive."

I do not agree.

In order to properly assess the constitutionality of Sections 7 and 23(a)(3), the

provisions thereof must be considered in its entirety. Judicial scrutiny of the subject
provisions cannot be delimited to a particular provision thereof, i.e., the "duty to refer,"
lest the Court lose sight of the objectives sought to be achieved by Congress and the
ramifications thereof with regard to the free exercise clause. The "duty to refer" must
be construed with due regard to the other provisions in Sections 7 and 23(a)(3) and the
objectives sought to be achieved by R.A. No. 10354 in its entirety.

The Constitution guarantees that no law shall be made respecting an establishment of

religion, or prohibiting the free exercise thereof; that the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be
allowed.[32] Religious freedom forestalls compulsion by law of the acceptance of any
creed or the practice of any form of worship, and conversely, it safeguards the free
exercise of the chosen form of religion.[33]

The twin clauses of free exercise clause and non-establishment clause express an
underlying relational concept of separation between religion and secular government.
[34]
 The idea advocated by the principle of separation of church and State 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. While the State is prohibited from interfering in purely
ecclesiastical affairs, the Church is likewise barred from meddling in purely secular
matters.[35]

Freedom of religion embraces two aspects - freedom to believe and freedom to act. The
first is absolute, but in the nature of things, the second cannot be.[36] The free exercise
clause does not unconditionally inhibit the State from requiring the performance of an
act, or the omission thereof, on religious pretenses.[37] Religious freedom, like all other
rights in the Constitution, can be enjoyed only with a proper regard for the rights of
others.[38] 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.[39]

Nonetheless, the State, in prescribing regulations with regard to health, morals, peace,
education, good order or safety, and general welfare of the people, must give due
deference to the free exercise clause; it must ensure that its regulation would not
invidiously interfere with the religious freedom of the people. In such cases, the
legitimate secular objectives of the State in promoting the general welfare of the people
must be assessed against the religious scruples of the people.

In Estrada v. Escritor,[40] the Court held that the standard of benevolent neutrality "is the
lens with which the Court ought to view religion clause cases[.]"[41] The Court explained
the benevolent neutrality/ accommodation standard in this wise:

With religion looked upon with benevolence and not hostility, benevolent

neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of a person's or
institution's religion. As Justice Brennan explained, the "government [may] take religion
into account . . . to exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would othenvise thereby
be infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish." x x x Accomodation is forbearance and not alliance. It
does not reflect  agreement with the minority, but respect for the conflict between the
temporal and spiritual authority in which the minority finds itself.[42] (Emphasis ours and
citations omitted)

In ascertaining the limits of the exercise of religious freedom, in cases where

government regulations collide with the free exercise clause, the Court further declared
that, following the benevolent neutrality/accommodation standard, the "compelling
state interest" test should be applied.[43] Under the "compelling state interest test," a
State regulation, which is challenged as being contrary to the free exercise clause, would
only be upheld upon showing that: (1) the regulation does not infringe on an individual's
constitutional right of free exercise; or (2) any incidental burden on the free exercise of
an individual's religion maybe justified by a compelling state interest in the regulation of
a subject within the State's constitutional power to regulate by means, which imposed
the least burden on religious practices.[44]

With the foregoing principles in mind, it is my view that Sections 7 and 23(a)(3) of R.A.
No. 10354 does not run afoul of religious freedom. On the contrary, the said provisions
explicitly recognize the religious freedom of conscientious objectors by granting
accommodation to their religious scruples.

The right to health is a universally recognized human right.[45] In this regard, the
Constitution mandates the State to "protect and promote the right to health of the
people and instill health consciousness among them."[46] The Constitution further
requires the State to "adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost;" that in the provision of health
care service to the people, the needs of the underprivileged, sick, elderly, disabled,
women, and children should be prioritized.[47]

Heeding the constitutional mandate to protect and promote the right to health of the
people, Congress enacted R.A. No. 10354. Section 2 of R.A. No. 10354 thus pertinently
states that:

Section 2. Declaration of Policy. - The State recognizes and guarantees the human rights
of all persons including their right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose
and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.

x x x x (Emphasis ours)
Particularly, R.A. No. 10354 seeks to provide "effective and quality reproductive health
care services and supplies,"[48] which would "ensure maternal and child health, the
health of the unborn, safe delivery and birth of healthy children, and sound replacement
rate, in line with the State's duty to promote the right to health, responsible
parenthood, social justice and full human development."[49] R.A. No. 10354, as a
corollary measure for the protection of the right to health of the people, likewise
recognizes necessity to "promote and provide information and access, without bias, to
all methods of family planning."[50] Primarily, the objective of R.A. No. 10354 is to
provide marginalized sectors of society, particularly the women and the poor, access to
reproductive health care services, and to health care in general, of which they have
been deprived for many decades due to discrimination and lack of access to
information.[51]

Sections 7 and 23(a)(3) effectuate the foregoing objectives that R.A. No. 10354 seeks to
attain. Section 7, as stated earlier, facilitates the access by the public, especially the
poor and marginalized couples having infertility issues desiring to have children, to
modem family planning methods. It thus mandates all accredited public health facilities
to provide a full range of modem family planning methods, which includes medical
consultations, supplies and procedures. Private health facilities are likewise required to
extend family planning services to paying patients.

On the other hand, Section 23(a)(3) penalizes the refusal of any health care service
provider to extend quality reproductive health care services and information on account
of the patient's marital status, gender, age, religious convictions, personal
circumstances, or nature of work. Thus:

Section 23.  Prohibited Acts.- The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:
xxxx

(3) Refuse to extend quality health care services and information on account of the
person's marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and
services to another health care service provider within the same facility or one which
is conveniently accessible: Provided, further, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases;

x x x x (Emphasis ours)

Nevertheless, although Section 7 provides "that family planning services shall likewise
be extended by private health facilities to paying patients," it nevertheless exempts
"non-maternity specialty hospitals and hospitals owned and operated by a religious
group" from providing full range of modem family planning methods. Instead, Section 7
imposes on non-maternity specialty hospitals and hospitals owned and operated by a
religious group the duty to immediately refer patients seeking reproductive health care
and services to another health facility that is conveniently accessible.

In the same manner, the prohibition imposed under Section 23(a)(3) is not absolute; it
recognizes that a health care service provider may validly refuse to render reproductive
health services and information if he/she conscientiously objects thereto ''based on
his/her ethical or religious beliefs." Nevertheless, Section 23(a)(3) likewise imposes a
corresponding duty on such conscientious objector to immediately refer the person
seeking reproductive health services to another health care service provider within the
same facility or one, which is conveniently accessible.

It cannot be denied that the State has a legitimate interest in the promotion and
protection of the right to reproductive health of the people. The question that has to be
resolved then is whether such interest can be considered compelling as to justify any
incidental burden on the free exercise of religion.

The determination of whether there exists a compelling state interest that would justify
an incidental burden involves balancing the interest of the State against religious liberty
to determine which is more compelling under the particular set of facts. In assessing the
state interest, the court will have to determine the importance of the secular interest
and the extent to which that interest will be impaired by an exemption for the religious
practice.[52]

Accordingly, the supposed burden on the religious freedom of conscientious objectors in

complying with the "duty to refer" would have to be weighed against the State's interest
in promoting the right of the people to reproductive health.

According to the 2010 State of World Population prepared by the United Nations
Population Fund, in the Philippines, 230 mothers die out of every 100,000 live births
while 21 infants die out of every 1,000 live births.[53] Daily, there are about 15 women
dying due to childbirth and pregnancy related complications.[54] About 11% of all deaths
among women of reproductive age in the Philippines are due to maternal death.
[55]
 Further, for every minute, 3 babies are born, and for every 1000 babies born, 33 die
before reaching age five. [56] The foregoing statistics paints a harrowing tale of the state
of the country's reproductive health. It is quite unfortunate that the country has a high
rate of maternal and infant deaths, when it can be significantly reduced with proper and
effective reproductive health care.

No less distressing is the state of unintended pregnancies, and its equally harrowing
consequences, in the country. According to a study prepared by the Alan Guttmacher
Institute (AGI), there were 1.9 million unintended pregnancies in the Philippines in 2008,
resulting in two main outcomes-unplanned births and unsafe abortions. In the
Philippines, 37% of all births are either not wanted at the time of pregnancy (mistimed)
or entirely unwanted, and 54% of all pregnancies are unintended. The AGI further
discovered that, on average, Filipino women give birth to more children than they want,
which is particularly striking among the poorest Filipino women, who have nearly two
children more than they intend to have.[57]

The AGI stressed that the foregoing statistics can be attributed to low contraceptive use
and high levels of unmet need for contraception. The AGI pointed out that in 2008,
more than 90% of unintended pregnancies occurred among women using traditional,
ineffective methods or no method at all. The study further showed that poor women are
less likely to use a contraceptive method than non-poor women (43% vs. 51%), and in
regions where poverty is common, contraceptive use is substantially lower than the
national average--e.g., 38% in the Zamboanga Peninsula and 24% in the Autonomous
Region in Muslim Mindanao. [58]

The present condition of the country's reproductive health care, taken together with the
Constitution's mandate to promote and protect the right to health of the people,
constitutes a compelling state interest as would justify an incidental burden on the
religious freedom of conscientious objectors. Sections 7 and 23(a)(3) of R.A. No. 10354
were crafted to ensure that the government's effort in disseminating information and
providing access to services and programs on reproductive health would not be stymied.
The said provisions seek to improve the condition of the reproductive health care in the
country.

Nevertheless, Congress recognized that, in enacting regulations to further the

reproductive health of the people, including access to modem family planning methods,
resistance thereto based on religious scruples would abound. Notwithstanding the
presence of a compelling state interest in the promotion and protection of reproductive
health, Congress deemed it proper to carve out exemptions that specifically take into
account the religious dissensions of conscientious objectors, which effectively exempts
them from the requirements imposed under Sections 7 and 23(a)(3). In this regard, it
cannot thus be claimed that the said provisions invidiously interfere with the free
exercise of religion.

Nevertheless, it cannot be denied that the government's effort to provide increased

access to information, programs, and services regarding reproductive health would be
seriously hampered by the exemption accorded to conscientious objectors. A
considerable number of health facilities in the country are owned and operated by
religious institutions. Likewise, being a predominantly Catholic country, there are a
considerable number of health service providers who, due to their religious convictions,
view modem methods of family plarming, a major component of reproductive health
under R.A. No. 10354, as immoral.

In view of the accommodation granted to conscientious objectors under Sections 7 and

23(a)(3), a great portion of the public would still be denied access to information,
programs, and services regarding reproductive health, thus, effectively defeating the
lofty objectives of R.A. No. 10354. Thus, Congress, still recognizing the religious freedom
of conscientious objectors, instead imposed on them the "duty to refer" the patients
seeking reproductive health care and service to another health facility or reproductive
health care service provider. Under the circumstances, the "duty to refer" imposes the
least possible interference to the religious liberties of conscientious objectors.

Thus, the "duty to refer" imposed by Sections 7 and 23(a)(3) does not invidiously
interfere with the religious freedom of conscientious objectors; any discomfort that it
would cause the conscientious objectors is but an incidental burden brought about by
the operation of a facially neutral and secular regulation. Not all infringements of
religious beliefs are constitutionally impermissible. Just as the religious freedom of
conscientious objectors must be respected, the higher interest of the State should
likewise be afforded utmost protection.

Conscientious scruples have not, in the course of the long struggle for religious
toleration, relieved an individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs.[59] particularly in this case where the
provisions in question have already given accommodation to religious dissensions.
Values that are protected against government interference through enshrinement in the
Bill of Rights are not thereby banished from the political process.[60]

Further, the health care industry is one that is imbued with public interest. Their
religious scruples aside, health facilities and health care service providers owe it to the
public to give them choice on matters affecting reproductive health. Conscientious
objectors carmot be permitted to impose their religious beliefs on others by denying
them the choice to do so as it would amount to according a preferred status to their
rights over the rights of others.

The duty to provide information

regarding programs and services on
reproductive health under Section 23
(a)(l) does not run afoul of religious
freedom.

Section 23(a)(1)[61] punishes any health care service provider who either: (1) knowingly
withhold information regarding programs and services on reproductive health; (2)
knowingly restrict the dissemination of information regarding programs and services on
reproductive health; and/or (3) intentionally provide incorrect information regarding
programs and services on reproductive health.

The ponencia  struck down Section 23(a)(l) as being unconstitutional as it supposedly

impinges on the religious freedom of health care service providers. That in the
dissemination of information regarding programs and services on reproductive health,
the religious freedom of health care service providers should be respected.

I do not agree.

Contrary to the insinuation of the ponencia, Section 23(a)(l) does not compel health
care service providers to violate their religious beliefs and convictions. Section 23(a)(l)
does not absolutely prohibit a health care service provider from withholding
information regarding programs and services on reproductive health.

A rule of statutory construction is that a statute must be construed as a whole. The

meaning of the law is not to be extracted from a single part, portion or section or from
isolated words and phrases, clauses or sentences, but from a general consideration or
view of the act as a whole. Every part of the statute must be interpreted with reference
to the context.[62] In line with this rule, Section 23(a)(l) should be read in conjunction
with Section 23(a)(3), which provides that "the conscientious objection of a health care
service provider based on his/her ethical or religious belief shall be respected."
Accordingly, a health care service provider who conscientiously objects, based on
his/her ethical or religious beliefs, to programs and services regarding reproductive
health is exempted from the effects of Section 23(a)(l) only insofar as it punishes a
health care service provider who knowingly withholds information on said programs
and services. Section 23(a)(l), in relation to Section 23(a)(3), recognizes that a
conscientious objector cannot be compelled to provide information on reproductive
health if the same would go against his/her religious convictions. In such cases,
however, the conscientious objector, pursuant to Section 23(a)(3), has the correlative
duty to immediately refer the person seeking information on programs and services on
reproductive health to another health care service provider within the same facility or
one which is conveniently accessible.

However, a health care service provider who knowingly restricts the dissemination of
information or intentionally provides incorrect information on programs and services
regarding reproductive health, though the said acts are based on his/her conscientious
objections, would still be liable under Section 23(a)(1).

Section 23(a)(1) recognizes the primacy of the right of an individual to be informed and,
accordingly, exercise his/her right to choose and make decisions on matters affecting
his/her reproductive health. The provision aims to assure that every Filipino will have
access to unbiased and correct information on the available choices he/she have with
regard to reproductive health.[63]

It is conceded that the rights of those who oppose modem family planning methods,
based on ethical or religious beliefs, should be respected. This is the reason why Section
23(a)(1), in relation to Section 23(a)(3), exempts a conscientious objector from the duty
of disclosing information on programs and services regarding reproductive health.

However, such accommodation does not give license to the conscientious objectors to
maliciously provide wrong information or intentionally restrict the dissemination
thereof to those who seek access to information or services on reproductive health. Just
as their rights must be respected, conscientious objectors must likewise respect the
right of other individuals to be informed and make decisions on matter affecting their
reproductive health. The freedom to act on one's belief, as a necessary segment of
religious freedom, like all other rights, comes with a correlative duty of a 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.[64]

Further, it cannot be gainsaid that the health care industry is one, which is imbued with
paramount public interest. The State, thus, have the right and duty to ensure that health
care service providers would not knowingly restrict the dissemination of information or
intentionally provide incorrect information on programs and services regarding
reproductive health on the pretense of their religious scruples.

Section 23(b) and Section 5.24

of the IRR are not anathema to the
equal protection clause. 
Section 23(b)[65] penalizes any public officer specifically charged with the implementation
of the provisions of R.A. No. 10354 who either: (1) restricts or prohibits the delivery of
reproductive health care services; (2) forces, coerces or induces any person to use
reproductive health care services; (3) refuses to allocate, approve or release any budget
for reproductive health care services; (4) refuses to support reproductive health
programs; or (5) does any act that hinders the full implementation of a reproductive
health program.

On the other hand, the last paragraph of Section 5.24 of the IRR, provides that "[public]
skilled health professionals such as provincial, city, or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions of [R.A. No. 10354
and its IRR] cannot be considered as conscientious objectors."

The ponencia declared Section 23(b) and the last paragraph of Section 5.24 of the IRR as
unconstitutional for being violative of the equal protection clause. The  ponencia held
that the "conscientious objection clause" under Section 23(a)(3) "should equally be
protective of the religious belief of public health officers;" that the "protection accorded
to other conscientious objectors should equally apply to all medical practitioners
without distinction whether he belongs to the public or private sector."

I do not agree.

Equal protection simply provides that all persons or things similarly situated should be
treated in a similar manner, both as to rights conferred and responsibilities imposed.
The purpose of the equal protection clause is to secure every person within a State's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state's duly
constituted authorities.[66]

Persons or things ostensibly similarly situated may, nonetheless, be treated differently if

there is a basis for valid classification.[67] The legislature is allowed to classify the subjects
of legislation; if the classification is reasonable, the law may operate only on some and
not all of the people without violating the equal protection clause.[68] Classification, to be
valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law,
(3) not be limited to existing conditions only, and (4) apply equally to all members of the
same class.[69]

Contrary to the  ponencia 's ratiocination, I find that a valid classification exists as would
justify the withholding of the religious accommodation extended to health care service
providers under Section 23(a)(3) from public officers who are specifically charged with
the implementation of the provisions ofR.A. No. 10354 and its IRR.

There is a substantial distinction as regards a conscientious objector under Section 23(a)

(3), who may be a public or private health care service provider, and a public officer
specifically charged with the duty to implement the provisions of R.A. No. 10354 and its
IRR. The Constitution provides that a public office is a public trust.[70] An important
characteristic of a public office is that its creation and conferment involves a delegation
to the individual of some of the sovereign functions of government, to be exercised by
him for the benefit of the public; that some portion of the sovereignty of the country,
either legislative, executive, or judicial, attaches, for the time being, to be exercised for
the public benefit.[71]

That a public officer is specifically delegated with the a sovereign function of the
government, i.e. the implementation of the provisions of RA 10354 and its IRR, is what
sets him apart from a health care service provider under Section 23(a)(3). It should be
clarified, however, that the religious accommodation extended to conscientious
objectors under Section 23(a)(3) covers public health care service providers, who are
likewise considered public officers.[72] However, unlike the public officers under Section
23(b) and Section 5.24 of the IRR, public health care service providers under Section
23(a)(3) are not specifically charged with the implementation of the provisions of R.A.
No. 10354 and its IRR.

Further, classifying a public officer charged with the implementation of the provisions of
R.A. No. 10354 and its IRR apart from health care service providers under Section 23(a)
(3) is not only germane, but also necessary to the purpose of the law. To reiterate, the
primary objective of R.A. No. 10354 is to provide an increased access to information,
programs, and services regarding reproductive health. Allowing the same religious
accommodation extended under Section 23(a)(3) to public officers charged with the
implementation of the law would seriously hamper the delivery of the various programs
and services regarding reproductive health under R.A. No. 10354. In this regard, a public
officer specifically charged with the implementation of the provisions of R.A. No. 10354
and its IRR is considered an agent of the State; he cannot thus be allowed to effectively
frustrate the legitimate interest of the State in enacting R.A. No. 10354 by refusing to
discharge the sovereign functions delegated to him to the detriment of the public.

Moreover, the duration of the said classification is not limited to existing conditions.
Also, the prohibition imposed under Section 23(b) and Section 5.24 of the IRR applies
equally to all public officers specifically charged with the implementation of the law.
Accordingly, the equal protection claim against Sections 23(b) and 5.24 of the IRR must
evidently fail.

I agree though with the ponencia 's declaration that "the freedom to believe is intrinsic
in every individual and the protective robe that guarantees its free exercise is not taken
off even if one acquires employment in the government." Indeed, it is undeniable that a
man does not shed his spirituality once he assumes public office. However, it cannot
equally be denied that the State, in the pursuit of its legitimate secular objectives,
should not be unnecessarily impeded by the religious scruples of its agents. Pursuant to
the principle of separation of Church and State, it is not only the State that is prohibited
from in purely ecclesiastical affairs; the Church is likewise barred from meddling in
purely secular matters.[73]

Thus, in People v. Veneracion,[74] the Court, in resolving the question of whether a judge,

after a finding that the accused had committed a crime punishable by the penalty of
death, when the death penalty law was still in effect, has the discretion to impose the
penalty of reclusion perpetua on account of his religious beliefs, stated that:

We are aware of the trial judge's misgivings in imposing the death sentence because of
his religious convictions. While this Court sympathizes with his predicament, it is its
bounden duty to emphasize that a court of law is no place for a protracted debate on
the morality or propriety of the sentence, where the law itself provides for the sentence
of death as a penalty in specific and well-defined instances. The discomfort faced by
those forced by law to impose the death penalty is an ancient one, but it is a matter
upon which judges have no choice. Courts are not concerned with the wisdom, efficacy
or morality of laws. x x x.[75]

Reason demands that public officers who are specifically charged with the
implementation of the provisions of R.A. No. 10354 and its IRR be classified differently
from public and private health care service providers under Section 23(a)(3); they
cannot be allowed to avail of the religious accommodation granted to conscientious
objectors lest the lofty objectives of the law be disparaged. Any discomfort that would
be caused to such public officers is but a mere incidental burden in the exercise of their
religious belief, which is justified by the compelling state interest in the enactment of
R.A. No. 10354.

Section 23(a)(2) punishes the refusal to

perform reproductive health procedures
due to lack of spousal consent and/or
parental consent; it is not inimical to
freedom of religion.

Section 23(a)(2)[76] penalizes any health care service provider who refuses to perform
legal and medically-safe reproductive health procedures on the ground of lack of
consent or authorization of either: (1) the spouse, in the case of married persons; or (2)
the parents or person exercising parental authority, in the case of abused minors, where
the parent or the person exercising parental authority is the respondent, accused, or
convicted perpetrator.

The ponencia struck down Section 23(a)(2) for being unconstitutional, pointing out that,
"in the performance of reproductive health procedures, the religious freedom of health
care service providers should be respected." The ponencia 's conclusion stems from a
misapprehension of the acts penalized under Section 23(a)(2); it does not, in any
manner, invidiously interfere with the religious rights of health care service providers.

Section 23(a)(2) does not penalize the refusal of a health care service provider to
perform reproductive health procedures per se. What is being penalized by the
provision is the refusal of a health care service provider to perform such procedures on
the ground of lack of spousal consent or parental consent in certain cases. Indeed, for
reasons to be explained at length later, a health care service provider cannot avoid the
performance of reproductive health procedure, in case of married persons, solely on the
ground of lack of spousal consent since there would be no justifiable reason for such
refusal.

Likewise, it is quite absurd to expect that the parent of or one exercising parental
authority over an abused minor would give consent for the latter's reproductive health
procedure if he/she is the one responsible for the abuse. Thus, Section 23(a)(2)
dispenses with the requirement of parental authority from the abusive parent or person
exercising parental authority. In such case, a health care service provider cannot refuse
the performance of reproductive health procedure on the abused minor solely on the
ground of lack of parental consent.

Nevertheless, even in cases where the individual seeking reproductive health procedure
is married or is an abused minor, a health care service provider may validly refuse to
perform such procedure if the objection thereto is based on his/her ethical or religious
beliefs. Section 23(a)(2) must be read in conjunction with Section 23(a)(3), which
provides for religious accommodation of conscientious objectors. However, in such
cases, the health care service provider would still have the duty to immediately refer the
married individual or the abused minor to another health care service provider within
the same facility or one, which is conveniently accessible.

Section 23(a)(2)(i) merely upholds

the primacy of an individual's choice
on matters affecting his/her health;
it does not intrude into the right to
marital privacy.

Essentially, Section 23(a)(2)(i)[77] provides that a married individual may undergo a

reproductive health procedure sans the consent/authorization of his/her spouse; that
any health care service provider who would obstinately refuse to perform such
procedure on a married individual on the pretext of the lack of spousal consent would
be penalized accordingly.

The ponencia declared Section 23(a)(2)(i) as being contrary to Section 3, Article XV of

the Constitution, which requires the State to defend the "right of the spouses to found a
family," thus unduly infringing on the right to marital privacy. The ponencia explained
that the said provision "refers to reproductive health procedures like tubal ligation and
vasectomy which, by their very nature, require mutual consent and decision between
the husband and wife as they affect issues intimately related to the founding of the
family." The ponencia pointed out that decision-making concerning reproductive health
procedure "falls within the protected zone of marital privacy" from which State
intrusion is proscribed. Thus, the ponencia concluded, dispensing with the spousal
consent is "disruptive of family unity" and "a marked departure from the policy of the
State to protect marriage as an inviolable social institution."

It is conceded that intimate relations between husband and wife fall within the right of
privacy formed by emanations of the various guarantees in the Bill ofRights, to which
State intrusion is proscribed.[78] However, I do not agree that upholding a married
individual's choice to submit to reproductive health procedure despite the absence of
the consent or authorization of his/her spouse would be disruptive of the family.

The ponencia harps on the right to privacy that inheres in marital relationships. Yet the
marital couple is not an independent entity, with a mind and heart of its own, but an
association of two individuals, each with a separate intellectual and emotional makeup.
[79]
 While the law affirms that the right of privacy inheres in marital relationships, it
likewise recognizes that a spouse, as an individual per se, equally has personal
autonomy and privacy rights apart from the right to marital privacy guaranteed by the
Constitution. A spouse's personal autonomy and privacy rights, as an individual per
se,  among others, necessitates that his/her decision on matters affecting his/her health,
including reproductive health, be respected and given preference.

At the heart of Section 23(a)(2)(i) is the fundamental liberty of an individual to personal

autonomy,  i.e., to decide on matters affecting his/her reproductive health. Section 23(a)
(2)(i), contrary to the ponencia 's insinuation, does not hinder a married individual from
conferring with his/her spouse on his/her intended reproductive health procedure.
There is nothing in the said provision, which prevents a husband/wife from obtaining
the consent/authorization for an intended reproductive health procedure. Nevertheless,
the objection of the other spouse thereto, as common sense would suggest, should not
prevent a married individual from proceeding with the reproductive health procedure
since it is his/her bodily integrity that is at stake.

In this regard, the ruling of the US Supreme Court Planned Parenthood v. Danforth[80] is

instructive. Danforth involves a Missouri abortion statute, which, inter alia, required the
written consent of the husband before a woman may be allowed to submit to an
abortion[81] during the first 12 weeks of pregnancy. The US Supreme Court declared the
spousal consent requirement unconstitutional for unduly intruding into the right to
privacy of the woman. Thus:

We now hold that the State may not constitutionally require the consent of the spouse,
as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the
first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present
case, and with the courts whose decisions are cited above, that the State cannot
delegate to a spouse a veto power which the state itself is absolutely and totally
prohibited from exercising during the first trimester of pregnancy.

x x x Clearly, since the State cannot regulate or proscribe abortion during the first stage,
when the physician and his patient make that decision, the State cannot delegate
authority to any particular person, even the spouse, to prevent abortion during that
same period.

We are not unaware of the deep and proper concern and interest that a devoted and
protective husband has in his wife's pregnancy and in the growth and development of
the fetus she is carrying. Neither has this Court failed to appreciate the importance of
the marital relationship in our society. x x x Moreover, we recognize that the decision
whether to undergo or to forgo an abortion may have profound effects on the future of
any marriage, effects that are both physical and mental, and possibly
deleterious. Notwithstanding these factors, we cannot hold that the State has the
constitutional authority to give the spouse unilaterally the ability to prohibit the wife
from terminating her pregnancy when the State itself lacks that right.x x x.

It seems manifest that, ideally, the decision to terminate a pregnancy should be one
concurred in by both the wife and her husband. No marriage may be viewed as
harmonious or successful if the marriage partners are fundamentally divided on so
important and vital an issue. But it is difficult to believe that the goal of fostering
mutuality and trust in a marriage, and of strengthening the marital relationship and
the marriage institution, will be achieved by giving the husband a veto power
exercisable for any reason whatsoever or for no reason at all. Even if the State had the
ability to delegate to the husband a power it itself could not exercise, it is not at all likely
that such action would further, as the District Court majority phrased it, the "interest of
the state in protecting the mutuality of decisions vital to the marriage relationship."

xxxx

We recognize, of course, that, when a woman, with the approval of her physician but
without the approval of her husband, decides to terminate her pregnancy, it could be
said that she is acting unilaterally. The obvious fact is that, when the wife and the
husband disagree on this decision, the view of only one of the two marriage partners
can prevail. Inasmuch as it is the woman who physically bears the child and who is the
more directly and immediately affected by the pregnancy, as between the two, the
balance weighs in her favor. x x x.

(Emphases ours)[82]

It is indeed ideal that the decision whether to submit to reproductive health procedure
be a joint undertaking of the spouses, especially on such a vital and sensitive matter. It is
inevitable, however, for cases to abound wherein a husband/wife would object to the
intended procedure of his/her spouse. In such cases, the right to reproductive health of
a spouse would be rendered effectively inutile. I do not see how fostering such
stalemate, which can hardly be considered as a harmonious and blissful marital
relationship, could "protect the marriage as an inviolable social institution."

Thus, the law, in case of disagreement, recognizes that the decision of the spouse
undergoing the reproductive health procedure should prevail. In so declaring, Section
23(a)(2)(i) does not invidiously interfere with the privacy rights of the spouses. In
dispensing with the spousal consent/authorization in case of disagreement, the law is
not declaring a substantive right for the first time; even in the absence of such
declaration, the decision of the spouse undergoing the reproductive health procedure
would still prevail. Section 23(a)(2)(i) is but a mere recognition and affirmation of a
married individual's constitutionally guaranteed personal autonomy and his/her right to
reproductive health.

Requiring the rendition of pro bono

reproductive health services to indigent women
for PhilHealth accreditation does not infringe on
religious freedom.

Section 17 encourages private and non-government reproductive health care service

providers "to provide at least forty-eight (48) hours annually of reproductive health
services, ranging from providing information and education to rendering medical
services, free of charge to indigent and low-income patients." It further mandated that
the pro bono reproductive health services shall be included as a prerequisite in the
accreditation under the PhilHealth.

The ponencia declared that Section 17, contrary to the petitioners' stance, does not
amount to involuntary servitude; that it merely encourages reproductive health care
service providers to render pro bono services. The ponencia likewise held that requiring
the rendition of said pro bono services for PhilHealth accreditation is not an
unreasonable burden, but a necessary incentive imposed by Congress in the furtherance
of a legitimate State interest. Nevertheless, the ponencia declared Section 17
unconstitutional insofar as it affects conscientious objectors in securing PhilHealth
accreditation; that conscientious objectors are exempt from rendition of reproductive
health services, pro bono or otherwise.

While I agree with the ponencia that Section 17 does not amount to involuntary

servitude and that requiring the rendition of pro bono reproductive health services for
PhilHealth accreditation is not an unreasonable burden to health care service providers,
I disagree that Section 17 is unconstitutional as applied to conscientious objectors.

As pointed out earlier, it is conceded that health care service providers may not be
compelled to provide certain information or service regarding reproductive health if it
would be anathema to his/her religious convictions. Specifically, under Section 17, a
health care service provider may not be denied the opportunity to be accredited under
R.A. No. 7875, otherwise known as the National Health Insurance Act of 1995, as
amended by R.A. No. 10606, for his/her refusal to render pro bono reproductive health
services that are contrary to his/her religious beliefs.

However, that a health care service provider has religious objections to certain
reproductive health care services does not mean that he/she is already exempted from
the requirement under Section 17 for PhilHealth accreditation. The requirement under
Section 17 is stated in general terms and is religion-neutral; it merely states that health
care service providers, as a condition for PhilHealth accreditation, must render pro
bono reproductive health service. The phrase "reproductive health care service" is quite
expansive and is not limited only to those services, which may be deemed objectionable
based on religious beliefs.

Reproductive health care includes: (1) family planning information and services; (2)
maternal, infant and child health and nutrition, including breastfeeding; (3) proscription
of abortion and management of abortion complications; (4) adolescent and youth
reproductive health guidance and counseling; (5) prevention, treatment, and
management of reproductive tract infections, HIV and AIDS, and other sexually
transmittable infections; (6) elimination of violence against women and children, and
other forms of sexual and gender-based violence; (7) education and counseling on
sexuality and reproductive health; (8) treatment of breast and reproductive tract
cancers, and other gynecological conditions and disorders; (9) male responsibility and
involvement, and men's reproductive health; (10) prevention, treatment, and
management of infertility and sexual dysfunction; (11) reproductive health education
for adolescents; and (12) mental health aspect of reproductive health care.[83]

Thus, a health care service provider, his/her religious objections to certain reproductive
health care services aside, may still render pro bono reproductive health care service, as
a prerequisite for PhilHealth accreditation, by providing information or medical services,
for instance, on treatment of breast and reproductive tract cancers, and other
gynecological conditions and disorders or on maternal, infant and child health and
nutrition.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL only Section 7 of Republic Act

No. 10354, insofar as it dispenses with the requirement of parental consent for minors
who are already parents or have had a miscarriage, for being contrary to Section 12,
Article II of the Constitution.

[1]
 Section 9. The Philippine National Drug Formulary System and Family Planning
Supplies. - The National Drug Formulary shall include hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies. The Philippine National Drug Formulary System
(PNDFS) sh all be observed in selecting drugs including family planning supplies that will
be included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available
on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals:  Provided, further, That the foregoing
offices shall not purchase or acq uire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent.

[2]
 Section 15. Certificate of Compliance. -No marriage license shall be issued by the Local
Civil Registrar unless the applicans present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate
instructions and information on responsible pa renthood, family planning, breastfeeding
and infant nutrition.

[3]
 Section 17. Pro Bono Services for indigent Women. - Private and nongovernment
reproductive healthcare service providers includ ing, but not limited to, gynecologists
and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing in formation and education to
rendering medical services, free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government measures of identifying
marginalization, especially to pregnant adolescents. The forty-eight (48) hours
annual pro bono services shall be included as a prerequisite in the accreditation under
the PhilHealth.

[4]
 Section 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled
Birth Attendance. - The LGUs shall end eavor to hire an adequate number of nurses, m
idwives and other skilled health professionals for maternal health care and skilled birth
attenda nce to achieve an ideal skilled health professional-to-patient ratio taking into
consideration DOH targets: Provided, That people in geographica lly isolated or highly
populated a nd depressed areas shall be provided the same level of access to health
care: Provided, further, That the national government shall provide additional and
necessary funding and other necessary assistance for the effective implementation of
this provision.

xxxx
[5]
 Section 6. Health Care Facilities. -Each LGU, upon its determination of the necessity
based on well-supported data provided by its local health office shall endeavor to
establish or upgrade hospitals and facilities with adequate and qualified personnel,
equipment and supplies to be able to provide emergency obstetric and newborn
care: Provided, That people in geographically isolated or highly populated and
depressed areas shall have the same level of access and shall not be neglected by
providing other means such as home visits or mobile health care clinics as
needed: Provided, further, That the national government shall provide additional and
necessary funding and other necessary assistance for the effective implementation of
this provision.

[6]
 Section 16. Capacity Building of Barangay Health Workers (BHWs). - The DOH shall be
responsible for disseminating information and providing training programs to the LGUs.
The LGUs, with the technical assistance of the DOH, shall be responsible for the training
of BHWs and other barangay volunteers on the promotion of reproductive health. The
DOH shalJ provide the LGUs with medical supplies and equipment needed by BHWs to
carry out their functions effectively: Provided, further, That the national government
shall provide additionaJ and necessary funding and other necessary assistance for the
effective implementation of this provision including the possible provision of additional
honoraria for BHWs.

[7]
 Executive Order No. 209.

[8]
 FAMILY CODE, Article 220(4) and (6).

[9]
 FAMILY CODE, Article 228(3).

[10]
 FAMILY CODE, Article 234, as amended by Republic Act No. 6809.

[11]
 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

[12]
 Parham v. J.R., 442 U.S. 584, 604 (1977).

[13]
 Section 14. Age- and Development-Appropriate Reproductive Health Education. - The
State shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trained teachers informal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women 's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents
teachers-community associations, school officials and other interest groups. The
Department of Education (DepED) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.
[14]
 Section 4(b) of R.A. No. 10354 defines the term "adolescent" as referring to "young
people between the ages often (10) to nineteen (19) years who are in transition from
childhood to adulthood."

[15]
 Petition (G.R. No. 205478), Echavez, MD., et al. v. Ochoa, Jr., et al. , pp. 13-14.

[16]
 Mercado v. AMA Computer College-Paranaque City, Inc.,  G.R. No. 183572, April13,
2010, 618 SCRA 218, 236;  Miriam College Foundation, Inc. v. Court of Appeals,  401 Phil.
431, 455-456 (2000).

[17]
 Senate Journal, Session No. 25, October 15, 2012, Fifteenth Congress, p. 565.

[18]
 Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the
senate version of R.A. No. 10354, citing Young Adolescent Fertility Survey 2002 by UP
Population Institute; http:1/miriam.com.phlnewsblog/2011/08/17/the-reproductive-
health-act-sponsorship-speech-parts-2-and-3/, last accessed on March 24, 2014.

[19]
 ld.

[20]
 Id.

[21]
 CONSTITUTION, Article Jl, Section 12.

[22]
 CONSTITUTION, Article XIV, Section 2(2).

[23]
 381 u.s. 479 (1968).

[24]
 Id.

[25]
 See Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 399; Ople v.
Torres, 354 Phil. 948 (1998); Morfe v. Mutuc, et al., 130 Phil. 415 (1968).

[26]
 Petition (G.R. No. 205478), Echavez, MD., et al. v. Ochoa, Jr., et al.,  p. 4.

[27]
 478 P.2d 314 (1970).

[28]
 393 U.S. 97 (1968).

[29]
 Id.

[30]
 See Edwards v. Aguillard, 482 U.S. 578 (1987).

[31]
  See also Smith v. Ricci, 89 N.J. 514 (1982) where the Supreme Court of New Jersey
upheld the State's "family life education program" in the public elementary and
secondary curricula over objections that it infringes on the religious freedom of the
parents.

[32]
 CONSTITUTION, Article III, Section 5.
[33]
 See Corwin, The Constitution and What It Means Today, 14th ed., p. 97,
citing Cantwell v. Connecticut, 310 U.S. 296 at 303 (1940).

[34]
 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary,
2003 ed., p. 314.

[35]
 See Austria v. National Labor Relations Commission, 371 Phil. 340, 353 (1999); Cruz,
Constitutional Law, 2000 ed., pp. 178-179.

[36]
 Cantwell v. Connecticut,  310 U.S. 296 (1940).

[37]
 See Reynolds v. United States, 98 U.S. 145 (1879); Prince v. Massachusetts,  321 U.S.
158 (1944); Employment Division v. Smith, 494 U.S. 872 (1990).

[38]
 Cruz, Constitutional Law, 2000 ed., p. 187.

[39]
 Id.

[40]
 455 Phil. 411 (2003).

[41]
 ld. at 576.

[42]
 Id. at 522-523.

[43]
 Id. at 577-578.

[44]
 Braunfeld v. Brown, 366 U.S. 599 (1961); Sherbert v. Verner, 374 U.S. 398 (1963).

[45]
 Article 25 of the United Nations' Universa1 Declaration of Human Rights states that:

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.

[46]
 CONSTITUTION, Article II, Section 15.

[47]
 CONSTITUTION, Article XIII, Section 11.

[48]
 R.A. No. 10354, Section 3(d).

[49]
 R.A. No. 10354, Section 3(c).
[50]
 R.A. No. 10354, Section 3(e).

[51]
 Senate Journal, Session No. 18, September 13, 2011, Fifteenth Congress, p. 292.

[52]
 Estrada v. Escritor , supra note 40 at 531.

[53]
 Comment-in-Intervention, The Filipino Catholic Voices for Reproductive Health, Inc.,
pp. 36-37.

[54]
 Id. at 37.

[55]
  Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the
senate version of R.A. No. 10354; http://miriam.com.phlnewsblogl2011/08/17/the-
reproductive-health-act-sponsorship speech-parts-2-and-3/, last accessed on March 24,
2014.

[55]
 Sponsorship speech of Senator Pia S. Cayetano on Senate Bill 2865, the senate
version of R.A. No. 10354; http://senatorpiacayetano.com/?p=412, last accessed on
March 24, 2014.

[57]
 Unintended Pregnancy and Unsafe Abortion in the Philippines: Context and
Consequences;http://www.guttmacher.orglpubs/IB-unintended-pregnancy-
philippines.html, last accessed on March 24, 2014.

[58]
 Id.

[59]
 Employment Division v. Smith, supra note 37.

[60]
 Id.

[61]
 SEC. 23. Prohibited Acts.-The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

xxxx
[62]
 Aquino v. Quezon City, 529 Phil. 486, 498 (2006).

[63]
 Senate Journal, Session No. 27, October 5, 2011, Fifteenth Congress, p. 433.

[64]
 Tulfo v. People, G.R. No. 161032, September 16, 2008, 565 SCRA 283, 305.

[65]
 Section 23. Prohibited Acts. -The following acts are prohibited:

xxxx
(b) Any public officer, elected or appointed, specifically charged with the duty to
implement the

provisions hereof, who, personally or through a subordinate, prohibits or restricts the

delivery of legal and medically-safe reproductive health care services, including family
planning; or forces, coerces or induces any person to use such services; or refuses to
allocate, approve or release any budget for reproductive health care services, or to
support reproductive health programs; or shall do any act that hinders the full
implementation of a reproductive health program as mandated by this Act;

xxxx

[66]
 Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No. 181704,
December 6, 2011, 661 SCRA 589, 609.

[67]
 Nachura, Outline Reviewer in Political Law, 2006 ed., p. 95.

[68]
 Epperson v. Arkansas,  supra note 28, at 126.

[69]
 Tiu v. Court of Appeals, 361 Phil. 229, 242 (1999).

[70]
 CONSTITUTION, Article XI, Section 1.

[71]
 See Cruz, The Law on Public Officers, 2007 ed., p. 3.

[72]
 Section 5.24 of the IRR recognizes that public officers, i.e., public skilled health
professionals may be conscientious objectors, albeit after complying with certain
requisites, viz:

Section 5.24. Public Skilled Health Professional as a Conscientious Objector. In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled health professional shall comply with the
following requirements:

a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client 's travel
arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and e) Other

requirements as determined by the DOH.
In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay.

[73]
 Cruz, Constitutional Law, 2000 ed., p. 179.

[74]
 319 Phil. 364 (1995).

[75]
 Id. at 373.

[76]
 SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:
xxxx

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: Provided, That in case of disagreement,
the decision of the one undergoing the procedure shall prevail; and

(ii) Parental consent or that of the person exercisin g parental authority in the case of ab
used minors, where the parent or the person exercisi ng parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial
office of the court. In the case of minors, the written consent of parents or legal
guardian or, in their absence, persons exercising parental authority or next-of-kin shall
be required only in elective surgical procedures and in no case shall consent be required
in emergency or serious cases as defined in Republic Act No. 8344; and

xxxx
[77]
 Id.

[78]
 See Griswold v. Connecticut, supra note 23.

[79]
 Eisenstadt v. Baird, 405 U.S. 438 (1972).

[80]
 428 U.S. 52 (1976); see also Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992).

[81]
 In the US, Abortion, pursuant to Roe v. Wade, (410 U.S. 113 [1973]) is a recognized
right of the woman before a fetus is viable outside the womb, which is generally during
the first trimester of the pregnancy.

[82]
 Id.

[83]
 R.A. No. 10354, Section 4(q).
 CONCURRING AND DISSENTING OPINION

PERLAS-BERNABE, J.:

There never was a law yet made, I conceive, that hit the taste exactly of every man, or
every part of the community; of course, if this be a reason for opposition, no law can be
executed at all without force, and every man or set of men will in that case cut and
carve for themselves; the consequences of which must be deprecated by all classes of
men, who are friends to order, and to the peace and happiness of the country.

George Washington, in a Letter to Major-General Daniel Morgan [1]

Perhaps the most functional effect of law in a representative democratic society[2] like

ours is its ability to curb the gridlocking tendencies of divergence. Social order dictates
that the law shall be binding and obligatory against all, notwithstanding our differences
in belief and opinion. The solution to social disagreement ought to be achieved only
through legislative process, and not through this Court. Time and again, it has been
enunciated that "[t]he judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of
the government."[3] Consequently, as an overriding principle of judicial review, courts
are bound to adopt an attitude of liberality in favor of sustaining a statute. Unless its
provisions clearly and unequivocally, and not merely doubtfully, breach the
Constitution, it must not be stricken down. [4] If any reasonable basis may be conceived
which supports the statute, it will be upheld, and the challenger must negate all possible
bases.[5]

With these principles in mind, I submit that Republic Act No. 10354, 6 otherwise known
as "The Responsible Parenthood and Reproductive Health Act of 2012" (RH Law) should
be declared constitutional. I therefore join the ponencia in upholding the
constitutionality of several assailed provisions[7] of the RH Law and invalidating Sections
3.01(a)[8] and 3.01(j)[9] of its Implementing Rules and Regulations (RH-IRR), but dissent in
striking down Sections 7, 23(a)(1), 23(a)(2), 23(a)(2)(i), 23(a)(3), 23(b), and 17 thereof, as
well as its counterpart RH-IRR provisions, with the exception of Section 5.24 thereof
which I find invalid for being ultra vires. I deem it unnecessary to expound on the
reasons for my concurrence; the ponencia and my colleagues' opinions on that front
already reflect the wealth of argument in favor of sustaining several of the law's
provisions,[10] to which I find no impetus to add more.

Also, I, similar to the views shared by Justice Antonio T. Carpio[11] and Justice Marvic
Mario Victor F. Leonen,[12] further dissent insofar as the ponencia seeks to foist a judicial
determination on the beginning of life. Absent a proper presentation of established
scientific facts which becomes more realizable today due to the advances in medicine
and technology, the ponencia, by mere reference to the exchanges of the Framers
during the constitutional deliberations, treads on dangerous territory by making a final
adjudication on this issue. Section 12,[13] Article II of the 1987 Philippine Constitution is
not a definitive guidepost to the question on when does life begin, but rather a
declaration of the State's policy to equally protect the life of the mother and the life of
the unborn from conception, to which the objectives and provisions of the RH Law, to
my mind, remain consistent and faithful to.[14]

That being said, I proceed to briefly explain the reasons behind my other points of
dissent.

I. The Duty to Refer, Perform, and Inform

vis-a-vis Conscientious Objection.

Utilizing the parameters of strict scrutiny in accord with the doctrine of benevolent
neutrality, the  ponencia finds Section 7[15] of the RH Law and its corresponding provision
in the RH-IRR unconstitutional insofar as they require private health facilities and non-
maternity specialty hospitals and hospitals owned and operated by a religious group to
immediately refer patients not in an emergency or life-threatening case, as defined
under the RH Law, to another health facility which is conveniently accessible.

The ponencia further relates[16] Section 7 to Sections 23(a)(1)[17] and 23(a)(2)[18] of the RH

Law, as well as their counterpart RH-IRR provisions, particularly Section 5.24 thereof,
insofar as they, as to the first provision stated, punish any health care service provider
who fails and or refuses to disseminate information regarding programs and services on
reproductive health (supposedly) regardless of his or her religious beliefs, and insofar as
they, as to the second provision stated, punish any health care service provider who
refuses to perform reproductive health procedures on account of their religious beliefs.
Stating jurisprudential precepts on the Free Exercise Clause, the ponencia applies its
religious freedom take on Section 7 to Sections 23(a)(1) and 23(a)(2) of the RH Law,
"considering that in the dissemination of information regarding programs and services
and in the performance of reproductive health procedures the religious freedom of
health care service providers should be respected."[19]

Equally treated as unconstitutional is Section 23(a)(3)[20] and its corresponding provision

in the RH-IRR, particularly Section 5.24[21] thereof, insofar as they punish any health care
service provider who fails and/or refuses to refer a patient not in an emergency or life-
threatening case as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible regardless of
his or her religious beliefs.

I disagree.

Under the benevolent-neutrality theory utilized by the ponencia in support of its

position, religious freedom is seen as a substantive right and not merely a privilege
against discriminatory legislation. With religion looked upon with benevolence and not
hostility, benevolent neutrality allows accommodation of religion under certain
circumstances. As case law instructs, it is the strict scrutiny-compelling state interest
test which is most in line with the benevolent neutrality-accommodation approach.
[22]
 This method of analysis operates under three (3) parameters, namely: (a) the
sincerity of the religious belief which is burdened by a statute or a government action;
(b) the existence of a compelling state interest which justifies such burden on the free
exercise of religion; and (c) in the furtherance of its legitimate state objective, the state
has employed the least intrusive means to such exercise of religious beliefs.

There is no striking objection to the concurrence of the first parameter given that the
burden of proving the same lies on the person asserting a religious freedom violation, as
petitioners in these consolidated cases.

As to the second parameter, the ponencia misplaces its conclusion that there exists no

compelling state interest to justify the burden of the conscientious objector's duty to
refer on statistical data showing that the maternal mortality rate had actually dropped
even before the enactment of the RH Law.[23] What seems to be lost in the equation is
the substantive value advanced by the legislative policy, namely, the right to health, an
inextricable adjunct of one's right to life, which is sought to be protected by increasing
the public's awareness of reproductive health options. Notwithstanding the premise
that maternal deaths have substantially decreased during the last two (2) decades, it
cannot be seriously doubted that the State has a compelling interest to protect its
citizen's right to health and life. The denial (or the threat of denial) of these rights even
only against one, to my mind, is enough to conclude that the second parameter of
scrutiny has been passed.

With respect to the third parameter, the ponencia submits that the State has not used
the least intrusive means in advancing its interest by imposing the duty to refer on
health care service providers who are conscientious objectors since they cannot be
compelled, "in conscience, (to) do indirectly what they cannot do directly."[24] But again,
what is apparently discounted is the inherent professional responsibility of health care
service providers to apprise patients of their available options concerning reproductive
health. Health care service providers cannot - as they should not - absolutely keep mum
on objective data on reproductive health, lest they deprive their patients of sound
professional advice or deny them the right to make informed choices regarding their
own reproductive health. Religious beliefs may exempt the conscientious objector from
directly performing the act objected to, but the least intrusive means, in this scenario, is
to impose upon them, at the very least, the duty to refer the patient to another health
care service provider within the same facility or one which is conveniently accessible to
the end of realizing the patient's health choice. After all, nothing in the assailed
provisions on the duty to refer prevents the conscientious objector from sharing his or
her religious beliefs on the reproductive health method the patient is informed of.  The
conscientious objector can preach on his or her religious beliefs notwithstanding the
secular command of sharing objective info ation on reproductive health methods or
referring the patient to another health care service provider who may possibly subscribe
to a different belief. I also see no burden on the conscience through what
the ponencia dubs as indirect complicity. I believe that when the health care service
provider refers the patient to another, the former, in fact, manifests his or her
conviction against the objected method. Thus, the argument can be made that the act
of referral is in itself the objection. Inviolability of conscience should not be used as
a carte blanche excuse to escape the strong arm of the law and its legitimate objectives.
Our liberties may flourish within reasonable limitations.
Neither do I find Section 23(a)(l) of the RH Law, as well as its RH IRR provision
counterpart, invidious of religious freedom, particularly, of the Free Exercise Clause, for
the reason that information dissemination on health advice, including that on
reproductive health, constitutes, as mentioned, an inherent professional responsibility
of health care service providers to their patients. Informing the patient of his or her
health options does not, in any way, preclude the conscientious objector from, as also
earlier stated, sharing his or her religious beliefs on the matter. After disseminating the
information, and when the·patient affirmatively decides to take the reproductive health
procedure, then the conscientious objector may opt not to perform such procedure
himself or. herself and, instead, refer the patient to another health care service provider
based only on the qualification of accessibility; nothing in the law requires the
conscientious objector to refer the patient to a health care service provider capable and
willing to perform the reproductive health procedure objected to.

In the same light, I find Section 23(a)(2) clear from any religious freedom infraction for
the reason that conscientious objectors are given the choice not to perform
reproductive health procedures on account of their religious beliefs, albeit they are
dutifully required to refer their patients to another health care service provider within
the same facility or one which is conveniently accessible to the end of realizing the
patient's health choice. The same reasons stated in my previous discussions equally
obtain in this respect. Accordingly, I submit that the RH Law and the RH-IRR provisions
governing the conscientious objector's duty to refer and its correlative prov1S1ons on
information dissemination and performance be upheld as constitutional.

II. Section 23(b) of tbe RH Law in relation to

Section 5.24 of tbe RH-IRR vis-a-vis
tbe Conscientious Objector Exception.

Section 23(b) of the RH Law provides a general proscription on non performance,

restriction, and/or hindrance of delivering reproductive health care services against a
public officer specifically charged with the implementation of the RH Law, viz.:

SEC. 23. Prohibited Acts.- The following acts are prohibited:

xxxx

(b) Any public officer, elected or appointed, specifically charged with the duty to
implement the provisions hereof, who, personally or through a subordinate, prohibits or
restricts the delivery of legal and medically-safe reproductive health care services,
including family planning; or forces, coerces or induces any person to use such services;
or refuses to allocate, approve or release any budget for reproductive health care
services, or to support reproductive health programs; or shall do any act that hinders
the full implementation of a reproductive health program as mandated by this Act;

xxxx

Nothing in the provision's text or any provision of the entire RH Law negates the
availability of the conscientious objector exception to the public officers above-
described.
This notwithstanding, Section 5.24 of the RH-IRR states that skilled health professionals
such as provincial, city, or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RH Law cannot be deemed as
conscientious objectors, viz.:

SEC. 5.24 Public Skilled Health Professional as a Conscientious Objector. In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled health professional shall comply with the
following requirements:

a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client's travel
arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and

e) Other requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay.

Provided, That skilled health professionals such as provincial, city, or municipal health

officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.

Within sixty (60) days from the effectivity ofthese rules, the DOH shall develop
guidelines for the implementation of this provision. (Emphasis supplied)

The ponencia  declared  Section 5.24 of the RH-IRR as unconstitutional for being

discriminatory and violative of the equal protection clause. It held that there is no
perceptible distinction between skilled health professionals who by virtue of their office
are specifically charged with the duty to implement the provisions of the RH Law and
other public health care service providers so as to preclude the former from availing of
the conscientious objector exemption, considering that they are also accorded the right
to the free exercise of religion. It opined that "the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not taken off even
if one acquires employment in the government."[25]
I concur with tbe  ponencia only in striking down Section 5.24 of the RH-IRR but dissent
against its undertaking of an equal protection analysis.

As I see it, the problem lies only with Section 5.24 of the RH-IRR going beyond[26] what is
provided for in the RH Law. Section 5.24 of tbe RH-IRR is an erroneous construction of
Section 23(b) of the RH Law which must stand as constitutional. As earlier mentioned,
the latter provision only states general prohibitions to public officers specifically charged
with the implementation of the RH Law; nothing in its text negates the availability of the
conscientious objector exception to them, or to "skilled health professionals such as
provincial, city, or municipal health officers, chiefs of hospital, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the
duty to implement the provisions of the [RH Law and the RH-IRR]." Section 23(b) of the
RH Law must be construed in the context of its surrounding provisions which afford the
conscientious objector the ability to opt-out from performing reproductive health
practices on account of his or her religious beliefs. As the aforementioned RH-IRR
provision would be stricken down as invalid on ultra vires grounds, I believe that an
equal protection analysis is unnecessary.

III. Minority Exceptions to Parental Consent.

The ponencia  also holds Section 7[27] and its corresponding RH-IRR provision

unconstitutional insofar as they allow minor-parents or minors who have suffered a
miscarriage access to modern methods of family planning without written consent from
their parents or guardianls. The ponencia deemed this as a premature severing of the
parents' parental authority over their children even if she is not yet emancipated, and
thus, declared unconstitutional as well.[28]

Again, I disagree.

The provision only states that minor children who are already parents or have had a
miscarriage are entitled to information and access to modern day methods of family
planning without the. need of their parents' consent. There is nothing in the RH Law
which forecloses the exercise of parental authority. Parents may still determine if
modern day family planning methods are beneficial to the physical well-being of their
child, who is a minor-parent or a minor who has suffered a miscarriage. The RH Law
provision should be read complementarily with Articles 209 and 220 of the Family Code
of the Philippines[29] which state that:

Art. 209. Pursuant to the natural right and duty of parents over the person and property
of their unemancipated children, parental authority and responsibility shall include the
caring for and rearing them for civic consciousness and efficiency and
the development of their moral, mental and physical character and well-being.

Art. 220. The parents and those exercising parental authority shall have with the respect
to their unemancipated children or wards the following rights and duties:

xxxx

(4) To furnish them with good and wholeome educational materials, supervise their
activities, recreation and association with others, protect them from bad company, and
prevent them from acquiring habits detrimental to their health, studies and morals;
(Emphases and underscoring supplied)

The RH Law provision on parental consent does not amount to a negation or even a
dilution of the parent's right to care for and rear their minor child who is already a
parent or has undergone an abortion towards the end of developing her physical
character and well-being. Neither does the provision inhibit the minor's parents from
preventing their child from acquiring detrimental health habits. Recognizing that these
minors have distinct reproductive health needs due to their existing situation, the law
simply does away with the necessity of presenting to reproductive health care service
providers prior parental consent before they are given information and access to
modem day methods of family planning. In a predominantly conservative culture like
ours, wherein the thought that premarital sex is taboo pervades, a minor who is already
a parent or one who has undergone a previous miscarriage is, more often than not,
subject to some kind of social stigma. Said minor, given her predisposition when viewed
against social perception, may find it difficult, or rather uncomfortable, to approach her
parents on the sensitive subject of reproductive health, and, much more, to procure
their consent. The RH Law does away with this complication and makes modem
methods of family planning easily accessible to the minor, all in the interest of her
health and physical well-being. On all accounts, nothing stops the minor's parents to, in
the exercise of their parental authority, intervene, having in mind the best interest of
their child insofar as her health and physical well-being are concerned.

Besides, in addition to its limited availability to a distinct class of minors, i.e., minor

children who are already parents or have had a miscarriage, the provision only
dispenses wi_th the need for prior parental consent in reference to mere information
dissemination and access to modem day methods of family planning. When the minor
elects to undergo the required surgical procedure, the law makes it clear that the need
for prior parental consent is preserved, but, understandably, in no case shall consent be
required in emergency or serious cases. Section 23(a)(2)(ii) of the RH Law states this
rule:

SEC. 23. Prohibited Acts.- The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

xxxx

(ii) Parental consent or that of the person exerctsmg parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial
office of the court. In the case of minors, the written consent of parents or legal
guardian or, in their absence, persons exercising parental authority or next-of-kin shall
be required only in elective surgical procedures and in no case shall consent be
required in emergency or serious cases as defined in Republic Act No. 8344; and

x x x x (Emphasis supplied)

IV. Spousal Consent.

Section 23(a)(2)(i)[30] of the RH Law provides that spousal consent is needed before a
married person may undergo certain reproductive health procedures, such as
vasectomy for males and tubal ligation for females, provided, that in case of
disagreement, it is the decision of the one undergoing the procedure which shall prevail.

In declaring this provision as unconstitutional, the ponencia explained that since a

decision to undergo a reproductive health procedure principally affects the right to
found a family, such decision should not be left solely to the one undergoing the
procedure, but rather, should be made and shared by both spouses as one cohesive
unit.[31]

I would, once more, have to disagree with the ponencia.

There is nothing in the RH Law that would completely alienate the other spouse in the
decision-making process nor obviate any real dialogue between them. This is a purely
private affair left for the spouses to experience for themselves. Ideally and as much as
possible, spouses should, as the ponencia puts it, act as "one cohesive unit" in the
decision-making process in undergoing a reproductive health procedure. However,
when there is a complete disagreement between the spouses, the assailed RH Law
provision provides, by way of exception, a deadlock-mechanism whereby the decision of
the one undergoing the procedure shall prevail if only to prevent any unsettling conflict
between the married couple on the issue. To add, the assailed provision, in my view,
also provides a practical solution to situations of estrangement which complicates the
process of procuring the other spouse's consent.

Verily, on matters involving medical procedures, it cannot be seriously doubted that the
choice of the person undergoing the procedure is of paramount importance precisely
because it is his or her right to health, as an inextricable adjunct of his or her right to
life, which remains at stake. The right to individual choice is the main thrust of the
doctrine of personal autonomy and self-determination which provides that "[n]o right is
held more sacred, or is more carefully guarded, by the common law, than the right of
every individual to the possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable authority of law."[32] Under
this doctrine, a competent adult has the right to refuse medical treatment, even
treatment necessary to sustain life;[33] all the more, should the adult have the right to,
on the flip side, avail of medical treatment necessary to sustain his or her life. Aptly
citing American jurisprudence, Chief Justice Maria Lourdes P. A. Sereno, in her opinion,
enunciates that "every human being of adult years and sound mind has a right to
determine what shall be done with his own body."[34] I share this sentiment.

In the final analysis, the constitutional right to found a family should not be shallowly
premised on the mere decision on the number of children; the right to found a family,
more importantly, looks towards the well-being of its members, such as the
reproductive health of the spouse undergoing the disputed procedure. To this end, the
decision of said family member should be respected and not be overruled by either
his/her spouse or by the courts. Respect for individual autonomy, especially in cases
involving the individual 's physical well-being, is a reasonable limitation and, even, a
corollary to the spouses' collective right to found a family.

V. Pro Bono Services as Pre-requisite

for PhiiHealth Accreditation.

Section 17[35] of the RH Law provides that public and private healthcare service providers
are encouraged to provide at least 48 hours of  pro bono reproductive health services
annually, ranging from providing information and education to rendering medical
services. The same proviso also states that such annual pro bono service is a pre-
requisite for the healthcare service provider's accreditation with the PhilHealth.

In declaring this provision as unconstitutional, the ponencia while recognizing that said

provision only encourages and does not compel under pain of penal sanction the
rendition of pro bono reproductive health care services, nonetheless held that it violates
the conscientious objectors' freedom to exercise their religion.[36]

On this last point, I still disagree.

As there is no form of compulsion, then the conscientious objector remains free to

choose whether to render pro bono reproductive health care services or not. In the
event, however, that he or she decides not to render such services, the State has the
right to deny him or her PhilHealth accreditation. Being a mere privilege, the State,
through its exercise of police power, is free to impose reasonable concessions that
would further its policies, i.e., dissemination of information and rendering of services on
reproductive health, in exchange for the grant of such accreditation.

VI.  A Final Word.

The sacredness of human life and the primacy of the family are values we, despite our
differences, have all come to hold true. The people who, through their elected
representatives in Congress, have given the RH Law their stamp of approval, I believe,
do not cherish these values any less. It is by trusting that we all share a common respect
for the core values that we can all afford the RH Law a chance to foster its legitimate
objectives. There is no question that we, by the blessings of democracy, all have the
right to differ on how we chart our nation's destiny. But the exercise of one's freedoms
must always come with the recognition of another's. We have built our political
institutions not only as a venue for liberty to thrive, but also as a unifying space to
reconcile disparity in thought.  While we may have now reached a verdict on the path to
take on the issue of reproductive health, let us not forget that, in the fire of free
exchange, the process is a continuous one: we are all contributors to constant
refinement; nothing precludes us from positive change. As a noted philosopher even
once remarked, freedom is nothing but a chance to be better.[37] I share this belief, but I
also know this: that in the greater scheme of things, there is a time and place for
everything.
IN VIEW OF THE FOREGOING, I vote to declare Republic Act No. 10354
as CONSTITUTIONAL, and, on the other hand, Section 5.24 of its Implementing Rules
and Regulations as INVALID for the reasons stated in this opinion.

[1]
 (visited April 5, 2014). Section 1, Article II ofthe 1987 Philippine Constitution provides:

SEC. 1. The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.

[2]
 Lozano v. Nograles, G.R. Nos. 187883 & 187910, 607 Phil. 334, 340 (2009),
citing Angara v. Electoral commission, 63 Phil. 139 (1936).

[4]
 See Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and
Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 386-387, citing ABAKADA
GURO Party List v. Purisima, 584 Phil. 246, 268 (2008); emphasis supplied.

[5]
 Victoriano v. Elizalde Rope Workers' Union, 158 Phil. 60 (1974).

[6]
 Entitled "AN ACT PROVIDING FOR A NATIONAL POLICY ON RESPONSIBLE
PARENTHOOD AND REPRODUCTIVE HEALTH."

[7]
 Sections 9, 14 and 15, among others.

[8]
 Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the

destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum
to reach and be implanted in the mother's womb upon determination ofthe Food and
Drug Administration (FDA).

[9]
 Section 3.01 For purposes ofthese Rules, the terms shall be defined as follows:

xxxx

j) Contraceptive refers to any safe, legal, effective, and scientifically proven modem

family planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA).

[10]
 Id.

[11]
 See Concurring Opinion of Justice Antonio T. Carpio, pp. 2-3.

[12]
 See Dissenting Opinion of Justice Marvic Mario Victor F. Leonen, pp. 3, 43-77.

[13]
 SEC. 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.
(Emphasis supplied)

[14]
 Section 2 of the RH Law provides:

SEC. 2. Declaration of Policy. -The State recognizes and guarantees the human rights of
all persons including their right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and
make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.

Pursuant to the declaration of State policies under Section 12, Article II of the 1987
Philippine Constitution, it is the duty of the State to protect and strengthen the family
as a basic autonomous social institution and equally protect the life of the mother and
the life of the unborn from conception. The State shall protect and promote the right to
health of women especially mothers in particular and of the people in general and instill
health consciousness among them. The family is the natural and fundamental unit of
society. The State shall likewise protect and advance the right of families in particular
and the people in general to a balanced and healthful environment in accord with the
rhythm and harmony of nature. The State also recognizes and guarantees the
promotion and equal protection of the welfare and rights of children, the youth, and the
unborn.

x x x x (Emphasis supplied)

[15]
 SEC. 7. Access to Family Planning.- All accredited public health facilities shall provide
a full range of modem family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have
children: Provided, That family planning services shall likewise be extended by private
health facilities to paying patients with the option to grant free care and services to
indigents, except in the case of non-maternity specialty hospitals and hospitals owned
and operated by a religious group, but they have the option to provide such full range of
modem family planning methods: Provided, further, That these hospitals shall
immediately refer the person seeking such care and services to another health facility
which is conveniently accessible: Provided, finally, That the person is not in an
emergency condition or serious case as defined in Republic Act No. 8344. (Emphasis and
underscoring supplied)

[16]
 See ponencia, pp. 66-71.

[17]
 SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or; private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

x x x x (Emphasis supplied)

[18]
 SEC. 23. Prohibited Acts. The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:

xxxx

(2) Refuse to perform legal and medically-safe reproductive health procedures on any

person of legal age on the ground of lack of consent or authorization on the following
persons in the following instances:

x x x x (Emphasis supplied)

[19]
 Ponencia, pp. 68-69.

[20]
 SEC. 23. Prohibited Acts. The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(3) Refuse to extend quality health care services and infonnation on account of the
person's marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and
services to another health care service provider within the same facility or one which
is conveniently accessible: Provided, further, That the person in not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospital and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases;

x x x x (Emphasis and underscoring supplied)

[21]
 SEC. 5.24. Public Skilled Health Professional as a Conscientious Objector. - x x x.

xxxx

Provided, That skilled health professionals such as provincial, city, or municipal health
officers, chiefs of hospital, head nurses, supervising midwives, among others, who by
virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act [RH Law] and these Rules, cannot be considered as conscientious
objectors.

xxxx

[22]
 See Estrada v. Escritor, 525 Phil. 110 (2006).
[23]
 See ponencia, pp. 74-75, citations omitted.

[24]
 Id. at 67.

[25]
 Id. at 69.

[26]
 "lt is settled rule that in case of discrepancy between the basic law and a rule or
regulation issued to implement said law, the basic law prevails, because the said rule or
regulation cannot go beyond the terms and provisions of the basic law." (Hijo
Plantation, Inc. v. Central Bank, 247 Phil. 154, 162 [1988], citing  People v. Lim, 108 Phil.
1091 [1960]).

[27]
 SEC. 7, Access to Family Planning.- x x x.
xxxx

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern
methods of family planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage. (Emphasis and
underscoting supplied)

[28]
 See ponencia, pp. 79-80.

[29]
 Executive Order No. 209, as amended.

[30]
 SEC. 23. Prohibited Acts.The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:

xxxx

(2) Refuse to perfonn legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization on the following
persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement,

the decision of the one undergoing the procedure shall prevail; and

x x x x (Emphasis and underscoring supplied)

[31]
 See ponencia, pp. 78-79.

[32]
 Conservatorship of Wendland, 26 Cal. 4th 519 (2001), citing Union Pacific Railway Co.
v. Botsford, 141 U.S. 250 (1891).

[33]
 Id.

[34]
 Chief Justice Sereno's Opinion, p. 14, citing Schloendorff v. Society of New York
Hospital, 105 N. E. 92.
[35]
 SEC. 17. Pro Bono Services for Indigent Women. - Private and nongovernment
reproductive healthcare service providers including, but not limited to, gynecologists
and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing information and education to
rendering medical services, free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government measures of identifYing
marginalization, especially to pregnant adolescents. The forty-eight (48) hours
annual pro bono  services shall be included as a prerequisite in the accreditation under
the PhilHealth.

[36]
 See ponencia, pp. 88-89.

[37]
 Albert Camus, "Resistance, Rebellion, and Death: Essays," p. 103 (1961).

CONCURRING AND DISSENTING OPINION

REYES, J.:

I concur with the ponencia's declaration that Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012, perused in
its entirety, is not recusant of the various rights enshrined in our Constitution.
Particularly, I concur that: (1) R.A. No. 10354, m making contraceptives and other
reproductive health products and services more accessible, does not run counter to the
constitutional right to life; (2) R.A. No. 10354, in giving priority to the poor in the
implementation of gove1nment programs to promote basic reproductive health care,
does not violate the equal protection clause of the Constitution; (3) Section 9,[1] in
mandating the inclusion of family planning products and supplies in the Philippine
National Drug Formulary System, does not violate the right to health of the people; (4)
Section 15[2] is not anathema to freedom of religion; (5) Section 17[3] does not amount to
involuntary servitude; (6) the delegation by Congress to the Food and Drug
Administration (FDA) of the power to determine whether a supply or product is to be
included in the Essential Drugs List constitutes permissible delegation of legislative
powers; and (7) Sections 5,[4] 6,[5] and 16[6] do not amount to an encroachment on the
autonomy of local governments.

The ponencia declared Section 7, insofar as it dispensed with the requirement of written

parental consent for minors who are already parents or have had a miscarriage, with
regard to access to modem methods of family planning, unconstitutional as it infringes
on the right to privacy with respect to one's family. I agree that Section 7, inasmuch as it
dispensed with the requirement of parental consent, is unconstitutional. Nevertheless,
in addition to ponencia's ratiocination on the right to privacy, I would discuss further
that Section 7, by dispensing with the requirement of parental consent for minors in
certain cases, violates Section 12, Article II of the 1987 Constitution.
I agree with the ponencia's conclusion that the attack on the constitutionality of Section
14, which provides for age- and development appropriate reproductive health
education to adolescents, must fail. However, I disagree with the ponencia insofar as it
declared that the issues raised against the constitutionality of Section 14 are premature
as the Department of Education (DepEd) has yet to prepare a curriculum on age and
development-appropriate reproductive health education. The Court has already made
pronouncements on the constitutionality of the other provisions of R.A. No. 10354
despite the lack of an actual case or controversy, the issues presented being matters of
transcendental importance. There is thus no reason for the Court to avoid a definitive
ruling on the constitutionality of Section 14. It is my view, which I will expound later,
that Section 14 does not: (1) violate the academic freedom of educational institutions;
(2) intrude into the natural and primary right of parents to rear their children; and (3)
amount to an infringement of the freedom of religion.

I dissent, however, from the ponencia's conclusion that the following provisions ofR.A.

No. 10354 are unconstitutional:

(1) Section 7, insofar as it imposes on non-maternity specialty hospitals and hospitals

owned and operated by a religious group the duty to refer a person seeking access
to modem family planning methods to another health facility, for being violative of
the freedom of religion;
(2) Section 23(a)(l), which punishes any health care service provider who withholds
information or restricts the dissemination thereof regarding programs and services
on reproductive health, and Section 23(a)(2), which punishes any health care
service providers who refuse to perform reproductive health procedures on the
ground of lack of consent or authorization in certain cases, for being violative of the
freedom of religion;
(3) Section 23(a)(2)(i), which allows a married individual to undergo reproductive
health procedure sans the consent of his/her spouse, for being contrary to one's
right to privacy;
(4) Section 23(a)(3), insofar as it requires a conscientious objector to immediately refer
a person seeking reproductive health care and service to another health care
service provider, for being violative of the freedom of religion;
(5) Section 23(b), which punishes any public officer charged with the duty to
implement the provision of R.A. No. 10354 who prohibits or restricts the delivery of
reproductive health care services, and Section 5.24 of the Implementing Rules and
Regulations (IRR) of R.A. No. 10354, which, inter alia, provides that those charged
with the duty to implement the provisions of R.A. No. 10354 cannot be considered
as conscientious objectors, for being violative of the freedom of religion; and
(6) Section 17, insofar as it included the rendition of at least fortyeight (48) hours
annual  pro bono reproductive health services as a prerequisite in the accreditation
under PhilHealth.

Section 7, inasmuch as it dispenses

with the requirement of written parental
consent, violates Section 12, Article II
of the Constitution.

Parents have the natural and primary right and duty to nurture their children. This right
is recognized by Section 12, Article II of the Constitution, which pertinently provides
that:

Section 12. x x x The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the
support of the Government.

Concomitant to their natural and primary right and duty to provide for, care, and
nurture their children, parents exercise parental authority over the persons of their
unemancipated children. In this regard, Article 209 of the Family Code7 provides that:

Article 209. Pursuant to the natural right and duty of parents over the person and
property of their unemancipated children, parental authority and responsibility shall
include the caring for and rearing them for civic consciousness and efficiency and
the development of their moral, mental and physical character and well-being.
(Emphasis ours)

The authority that is exercised by parents over their unemancipated children includes
the right and duty to enhance, protect, preserve, and maintain their physical and mental
health and to represent them in all matters affecting their interests.[8] The authority
exercised by parents over their unemancipated children is terminated, inter alia, upon
emancipation of the child.[9] Emancipation takes place upon attainment of the age of
majority, which commences at the age of eighteen years.[10]

Section 7 ofR.A. No. 10354 pertinently provides that:

Section 7. Access to Family Planning. - All accredited public health facilities shall provide
a full range of modem family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have
children: Provided, That family planning services shall likewise be extended by private
health facilities to paying patients with the option to grant free care and services to
indigents, except in the case of non-maternity specialty hospitals and hospitals owned
and operated by a religious group, but they have the option to provide such full range of
modern family planning methods:  Provided, further,  That these hospitals shall
immediately refer the person seeking such care and services to another health facility
which is conveniently accessible: Provided, finally, That the person is not in an
emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided,  That minors will not be allowed access to modern
methods of family planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage.

Section 7 seeks to make modem family planning methods more accessible to the public.
The provision mandates that no person shall be denied information and access to family
planning services, whether natural or artificial. However, the last proviso of Section 7
restricts the access of minors to modem methods of family planning; it requires a
written parental consent before a minor may be allowed access thereto. This is but
recognition of the parental authority that is exercised by parents over the persons of
their unemancipated children. That it is both a duty and a right of the parents to protect
the physical health of their unemancipated children.

However, Section 7 provided an exception to the requirement of written parental

consent for minors. A minor who is already a parent or has had a miscarriage may be
allowed access to modem methods of family planning notwithstanding the absence of a
written parental consent therefor. This runs afoul of the natural and primary right and
duty of parents in the rearing of their children, which, under Section 12, Article II of the
Constitution, should receive the support of the government.

There exists no substantial distinction as between a minor who 1s already a parent or

has had a miscarriage and a minor who is not yet a parent or never had a miscarriage.
There is no cogent reason to require a written parental consent for a minor who seeks
access to modem family planning methods and dispense with such requirement if the
minor is already a parent or has had a miscarriage. Under the Family Code, all minors,
generally, regardless of his/her circumstances, are still covered by the parental authority
exercised by their parents. That a minor is already a parent or has had a miscarriage
does not operate to divest his/her parents of their parental authority; such
circumstances do not emancipate a minor.

It is cardinal with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for obligations the
State can neither supply nor hinder.[11] Most children, even in adolescence, simply are
not able to make sound judgments concerning many decisions, including their need for
medical care or treatment. Parents can and must make those judgments.[12]

Considering that the last proviso of Section 7 operates to divest parents of their

parental authority over the persons of their minor child who is already a parent or has
had a miscarriage, the same must be struck down for being contrary to the natural and
primary right and duty of parents under Section 12, Article II of the Constitution.

Section 14 does not violate the

academic freedom of educational institutions
nor infringe on the natural and primary right
and duty of parents to rear their children.

Section 14[13] of R.A. No. 10354 mandates the provision of age- and development-
appropriate reproductive health education, which would be taught to adolescents14 in
public schools by adequately trained teachers. The curriculum on age- and
development-appropriate reproductive health education, which shall be formulated by
the DepEd after consultation with parents-teachers-community associations, shall
include subjects such as: values formation; knowledge and skills in self-protection
against discrimination; sexual abuse and violence against women and children and other
forms of gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood.
The petitioners claim that Section 14, by mandating the inclusion of age- and
development-appropriate reproductive health education to adolescents, violates the
academic freedom of educational institutions since they will be compelled to include in
their curriculum a subject, which, based on their religious beliefs, should not be taught
to students.[15]

The petitioners' claim is utterly baseless. Section 5(2), Article XIV of the Constitution
guarantees all institutions of higher learning academic freedom. The institutional
academic freedom includes the right of the school or college to decide and adopt its
aims and objectives, and to determine how these objections can best be attained, free
from outside coercion or interference, save possibly when the overriding public welfare
calls for some restraint. The essential freedoms subsumed in the term "academic
freedom" encompass the freedom of the school or college to determine for itself: (1)
who may teach; (2) what may be taught; (3) how lessons shall be taught; and (4) who
may be admitted to study.[16]

An analysis of the foregoing claim requires a dichotomy between public and private
educational institutions. The last sentence of Section 14 provides that the age- and
development-appropriate reproductive health curriculum that would be formulated by
the DepEd "shall be used by public schools and may be adopted by private schools." The
mandated reproductive health education would only be compulsory for public schools.
Thus, as regards private educational institutions, there being no compulsion, their
constitutional right to academic freedom is not thereby violated.

As regards public educational institutions, though they are mandatorily required to

adopt an age- and development-appropriate reproductive health education curriculum,
the claimed curtailment of academic freedom is still untenable. Section 4(1), Article XIV
of the Constitution provides that "[t]he State x x x shall exercise reasonable supervision
and regulation of all educational institutions." The constitutional grant of academic
freedom does not withdraw from the State the power to supervise and regulate
educational institutions, whether public or private. The only requirement imposed by
the Constitution on the State's supervision and regulation of educational institutions is
that the exercise thereof must be reasonable.

Congress deemed it appropriate to include a provision on age- and development-

appropriate reproductive health education as a means to address the rise of teenage
pregnancies.[17] In a 2002 survey conducted by the University of the Philippines
Population Institute, it was shown that 23% of young people aged 15 to 24 years old had
already engaged in pre-marital sex; that pre-marital sex was prevalent among 31.1% of
the boys and 15.4°/o among the girls.[18] The survey, after a consideration of other
factors, concluded that many young people, despite having inadequate knowledge on
reproductive health problems, engage in risky sexual behavior.[19] That, despite having
liberal views on sex and related matters, they rarely seek medical help for reproductive
health problems.[20] Poignantly, given this factual milieu, the provision on age- and
development-appropriate reproductive health education under Section 14 is
reasonable.

The importance of integrating the subject of the dangers and dire consequences of
alcohol abuse or even the menace of dangerous drugs in the curricula of primary and
secondary educational institutions cannot be disputed. The prevalence of teenage
pregnancy and the risks surrounding it is just as equally alarming as the dangers of
alcohol and substance abuse. Accordingly, I find nothing objectionable in the integration
of age- and development-appropriate reproductive health education in the curricula of
primary and secondary schools.

The petitioners further assert that Section 14 violates the right to privacy of the parents
as it amounts to a denigration of "the sanctity of the family home" and has "usurped the
rights and duties of parents to rear and educate their children in accordance with their
religious conviction by forcing some rules and State programs for reproductive health
contrary to their religious beliefs." The petitioners claim that parents have the primary
duty to educate their children, especially on matters affecting reproductive health. They
thus allege that the State's interference in such a delicate parental task is unwarranted
and should not be countenanced.

It is conceded that parents, as stated earlier, indeed have the natural and primary right
and duty in the rearing of their children.[21] The Constitution further affirms such right
and duty by mandating that the State, in providing compulsory elementary education
for all children of school age, is proscribed from imposing a limitation on the natural
rights of parents to rear their children.[22] At the core of the foregoing constitutional
guarantees is the right to privacy of the parents in the rearing of their children.

Essentially, the question that has to be resolved is whether the inclusion of age- and
development-appropriate reproductive health education in the curriculum of primary
and secondary schools violates the right to privacy of the parents in the rearing of their
children. The standard to be used in determining the validity of a government
regulation, which is claimed to infringe the right to privacy of the people, was explained
by the United States (US) Supreme Court in the land mark case of Griswold v.
Connecticut[23] in this wise:

The present case, then, concerns a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees. And it concerns a law which, in
forbidding the use of contraceptives, rather than regulating their manufacture or sale,
seeks to achieve its goals by means having a maximum destructive impact upon that
relationship. Such a law cannot stand in light of the familiar principle, so often applied
by this Court, that a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.
[24]
 (Emphasis ours)

Thus, when a government regulation is claimed to infringe on the right to privacy, courts
are required to weigh the State's objective against the privacy rights of the people.
Although considered a fundamental right, the right to privacy may nevertheless
succumb to a narrowly drawn government regulation, which advances a legitimate and
overriding State interest.[25]

As explained earlier, Section 14 aims to address the increasing rate of teenage

pregnancies in the country and the risks arising therefrom, which is undeniably a
legitimate and overriding State interest. The question that has to be asked then is
whether Section 14, in advancing such legitimate and overriding State interest, has
employed means, which are narrowly tailored so as not to intrude into the right to
privacy of the people.

Under Section 14, the formulation of the curriculum on age- and development-
appropriate reproductive health education is a collaborative process. It provides "[t]hat
flexibility in the formulation and adoption of appropriate course content, scope and
methodology in each educational level or group shall be allowed only after
consultations with parents-teachers community associations, school officials and
other interest groups." Section 14 thus takes into account the relevant concerns of
parents and other interest groups in the adoption and implementation of the proposed
age- and development-appropriate reproductive health education; any and all
objections thereto based on religious beliefs would be considered during the
formulation of the curriculum. In this sense, Section 14, in taking into account the
relevant concerns of parents and other interest groups in the formulation of the
curriculum, has been narrowly tailored so as not to invade the right to privacy of the
parents.

Equally untenable is the petitioners' claim that the provision of age and development-
appropriate reproductive health education under Section 14 unduly burdens their
freedom of religion.[26] A similar claim was resolved by the Supreme Court of Hawaii in
Medeiros v. Kiyosaki.[27] In Medeiros, Hawaii's Department of Education, as part of its
family life and sex education program, exhibits a film series entitled "Time of Your Life"
to fifth and sixth grade students in public schools. The plaintiffs therein, parents and
guardians of fifth and sixth grade students, sought to enjoin the exhibition of the said
film series, claiming, inter alia, that the said program unduly interferes with their
religious freedom.

The Supreme Court of Hawaii held that the Department of Education's family life and
sex education program does not infringe on the religious freedom of the plaintiffs
therein. Relying on the case of Epperson v. Arkansas,[28] the Supreme Court of Hawaii
stressed that upholding the claim of the plaintiffs therein would amount to tailoring the
teaching and learning in their schools to the principles or prohibitions of a religious sect,
which is anathema to the non-establishment clause.

Epperson involves a challenge to the constitutionality of the "anti evolution" statute

adopted by the State of Arkansas in 1928, which makes it unlawful for a teacher in any
State-supported school or university to teach the theory or doctrine that mankind
ascended or descended from a lower order of animals, or to adopt or use in any such
institution a textbook that teaches this theory. In declaring the statute unconstitutional,
the US Supreme Court declared that:

Government in our democracy, state and national, must be neutral in matters of

religious theory, doctrine, and practice. It may not be hostile to any religion or to the
advocacy of no-religion, and it may not aid, foster, or promote one religion or religious
theory against another or even against the militant opposite. The First Amendment
mandates governmental neutrality between religion and religion, and between
religion and nonreligion.
As early as 1872, this Court said: "The law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679, 80
U.S. 728. This has been the interpretation of the great First Amendment which this
Court has applied in the many and subtle problems which the ferment of our national
life has presented for decision within the Amendment's broad command.

xxxx

There is and can be no doubt that the First Amendment does not permit the State to
require that teaching and learning must be tailored to the principles or prohibitions of
any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a
state law to provide free bus service to school children, including those attending
parochial schools, said: "Neither [a] State nor the Federal Government can pass laws
which aid one religion, aid all religions, or prefer one religion over another." 330 U.S. 1,
330 U.S. 15 (1947)[29](Emphasis ours)

Declaring the provision of an age- and development-appropriate reproductive health

education to primary and secondary students unconstitutional on the pretext that it
conflicts with the religious convictions of others would amount to an endorsement of
religion contrary to the non-establishment clause.[30] The petitioners' claimed
infringement of their religious freedom is flawed in two ways: first, Section 14 takes into
account the religious beliefs of parents by soliciting their participation in the formulation
of the curriculum on age- and development-appropriate reproductive health education;
and second, to permit the petitioners to control what others may study because the
subject may be offensive to their religious or moral scruples would violate the non-
establishment clause.[31]

The "duty to refer" under Sections

7 and 23(a)(3) does not restrict the
freedom of religion.

The ponencia declared that the "duty to refer" imposed by Sections 7 and 23(a)(3) of

R.A. No. 10354 is repugnant to the constitutional right to freedom of religion and, thus,
should be struck down as unconstitutional. The ponencia explained that "[o]nee the
medical practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience is
immediately burdened as he has been compelled to perform an act against his beliefs."
The ponencia further described the said "duty to refer" as "a false compromise because
it makes pro-life health providers complicit in the performance of an act that they find
morally repugnant or offensive."

I do not agree.

In order to properly assess the constitutionality of Sections 7 and 23(a)(3), the

provisions thereof must be considered in its entirety. Judicial scrutiny of the subject
provisions cannot be delimited to a particular provision thereof, i.e., the "duty to refer,"
lest the Court lose sight of the objectives sought to be achieved by Congress and the
ramifications thereof with regard to the free exercise clause. The "duty to refer" must
be construed with due regard to the other provisions in Sections 7 and 23(a)(3) and the
objectives sought to be achieved by R.A. No. 10354 in its entirety.

The Constitution guarantees that no law shall be made respecting an establishment of

religion, or prohibiting the free exercise thereof; that the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be
allowed.[32] Religious freedom forestalls compulsion by law of the acceptance of any
creed or the practice of any form of worship, and conversely, it safeguards the free
exercise of the chosen form of religion.[33]

The twin clauses of free exercise clause and non-establishment clause express an
underlying relational concept of separation between religion and secular government.
[34]
 The idea advocated by the principle of separation of church and State 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. While the State is prohibited from interfering in purely
ecclesiastical affairs, the Church is likewise barred from meddling in purely secular
matters.[35]

Freedom of religion embraces two aspects - freedom to believe and freedom to act. The
first is absolute, but in the nature of things, the second cannot be.[36] The free exercise
clause does not unconditionally inhibit the State from requiring the performance of an
act, or the omission thereof, on religious pretenses.[37] Religious freedom, like all other
rights in the Constitution, can be enjoyed only with a proper regard for the rights of
others.[38] 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.[39]

Nonetheless, the State, in prescribing regulations with regard to health, morals, peace,
education, good order or safety, and general welfare of the people, must give due
deference to the free exercise clause; it must ensure that its regulation would not
invidiously interfere with the religious freedom of the people. In such cases, the
legitimate secular objectives of the State in promoting the general welfare of the people
must be assessed against the religious scruples of the people.

In Estrada v. Escritor,[40] the Court held that the standard of benevolent neutrality "is the
lens with which the Court ought to view religion clause cases[.]"[41] The Court explained
the benevolent neutrality/ accommodation standard in this wise:

With religion looked upon with benevolence and not hostility, benevolent

neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of a person's or
institution's religion. As Justice Brennan explained, the "government [may] take religion
into account . . . to exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would othenvise thereby
be infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish." x x x Accomodation is forbearance and not alliance. It
does not reflect  agreement with the minority, but respect for the conflict between the
temporal and spiritual authority in which the minority finds itself.[42] (Emphasis ours and
citations omitted)

In ascertaining the limits of the exercise of religious freedom, in cases where

government regulations collide with the free exercise clause, the Court further declared
that, following the benevolent neutrality/accommodation standard, the "compelling
state interest" test should be applied.[43] Under the "compelling state interest test," a
State regulation, which is challenged as being contrary to the free exercise clause, would
only be upheld upon showing that: (1) the regulation does not infringe on an individual's
constitutional right of free exercise; or (2) any incidental burden on the free exercise of
an individual's religion maybe justified by a compelling state interest in the regulation of
a subject within the State's constitutional power to regulate by means, which imposed
the least burden on religious practices.[44]

With the foregoing principles in mind, it is my view that Sections 7 and 23(a)(3) of R.A.
No. 10354 does not run afoul of religious freedom. On the contrary, the said provisions
explicitly recognize the religious freedom of conscientious objectors by granting
accommodation to their religious scruples.

The right to health is a universally recognized human right.[45] In this regard, the
Constitution mandates the State to "protect and promote the right to health of the
people and instill health consciousness among them."[46] The Constitution further
requires the State to "adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social
services available to all the people at affordable cost;" that in the provision of health
care service to the people, the needs of the underprivileged, sick, elderly, disabled,
women, and children should be prioritized.[47]

Heeding the constitutional mandate to protect and promote the right to health of the
people, Congress enacted R.A. No. 10354. Section 2 of R.A. No. 10354 thus pertinently
states that:

Section 2. Declaration of Policy. - The State recognizes and guarantees the human rights
of all persons including their right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose
and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.

x x x x (Emphasis ours)

Particularly, R.A. No. 10354 seeks to provide "effective and quality reproductive health
care services and supplies,"[48] which would "ensure maternal and child health, the
health of the unborn, safe delivery and birth of healthy children, and sound replacement
rate, in line with the State's duty to promote the right to health, responsible
parenthood, social justice and full human development."[49] R.A. No. 10354, as a
corollary measure for the protection of the right to health of the people, likewise
recognizes necessity to "promote and provide information and access, without bias, to
all methods of family planning."[50] Primarily, the objective of R.A. No. 10354 is to
provide marginalized sectors of society, particularly the women and the poor, access to
reproductive health care services, and to health care in general, of which they have
been deprived for many decades due to discrimination and lack of access to
information.[51]

Sections 7 and 23(a)(3) effectuate the foregoing objectives that R.A. No. 10354 seeks to
attain. Section 7, as stated earlier, facilitates the access by the public, especially the
poor and marginalized couples having infertility issues desiring to have children, to
modem family planning methods. It thus mandates all accredited public health facilities
to provide a full range of modem family planning methods, which includes medical
consultations, supplies and procedures. Private health facilities are likewise required to
extend family planning services to paying patients.

On the other hand, Section 23(a)(3) penalizes the refusal of any health care service
provider to extend quality reproductive health care services and information on account
of the patient's marital status, gender, age, religious convictions, personal
circumstances, or nature of work. Thus:

Section 23.  Prohibited Acts.- The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(3) Refuse to extend quality health care services and information on account of the
person's marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and
services to another health care service provider within the same facility or one which
is conveniently accessible: Provided, further, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases;

x x x x (Emphasis ours)

Nevertheless, although Section 7 provides "that family planning services shall likewise
be extended by private health facilities to paying patients," it nevertheless exempts
"non-maternity specialty hospitals and hospitals owned and operated by a religious
group" from providing full range of modem family planning methods. Instead, Section 7
imposes on non-maternity specialty hospitals and hospitals owned and operated by a
religious group the duty to immediately refer patients seeking reproductive health care
and services to another health facility that is conveniently accessible.

In the same manner, the prohibition imposed under Section 23(a)(3) is not absolute; it
recognizes that a health care service provider may validly refuse to render reproductive
health services and information if he/she conscientiously objects thereto ''based on
his/her ethical or religious beliefs." Nevertheless, Section 23(a)(3) likewise imposes a
corresponding duty on such conscientious objector to immediately refer the person
seeking reproductive health services to another health care service provider within the
same facility or one, which is conveniently accessible.

It cannot be denied that the State has a legitimate interest in the promotion and
protection of the right to reproductive health of the people. The question that has to be
resolved then is whether such interest can be considered compelling as to justify any
incidental burden on the free exercise of religion.

The determination of whether there exists a compelling state interest that would justify
an incidental burden involves balancing the interest of the State against religious liberty
to determine which is more compelling under the particular set of facts. In assessing the
state interest, the court will have to determine the importance of the secular interest
and the extent to which that interest will be impaired by an exemption for the religious
practice.[52]

Accordingly, the supposed burden on the religious freedom of conscientious objectors in

complying with the "duty to refer" would have to be weighed against the State's interest
in promoting the right of the people to reproductive health.

According to the 2010 State of World Population prepared by the United Nations
Population Fund, in the Philippines, 230 mothers die out of every 100,000 live births
while 21 infants die out of every 1,000 live births.[53] Daily, there are about 15 women
dying due to childbirth and pregnancy related complications.[54] About 11% of all deaths
among women of reproductive age in the Philippines are due to maternal death.
[55]
 Further, for every minute, 3 babies are born, and for every 1000 babies born, 33 die
before reaching age five. [56] The foregoing statistics paints a harrowing tale of the state
of the country's reproductive health. It is quite unfortunate that the country has a high
rate of maternal and infant deaths, when it can be significantly reduced with proper and
effective reproductive health care.

No less distressing is the state of unintended pregnancies, and its equally harrowing
consequences, in the country. According to a study prepared by the Alan Guttmacher
Institute (AGI), there were 1.9 million unintended pregnancies in the Philippines in 2008,
resulting in two main outcomes-unplanned births and unsafe abortions. In the
Philippines, 37% of all births are either not wanted at the time of pregnancy (mistimed)
or entirely unwanted, and 54% of all pregnancies are unintended. The AGI further
discovered that, on average, Filipino women give birth to more children than they want,
which is particularly striking among the poorest Filipino women, who have nearly two
children more than they intend to have.[57]

The AGI stressed that the foregoing statistics can be attributed to low contraceptive use
and high levels of unmet need for contraception. The AGI pointed out that in 2008,
more than 90% of unintended pregnancies occurred among women using traditional,
ineffective methods or no method at all. The study further showed that poor women are
less likely to use a contraceptive method than non-poor women (43% vs. 51%), and in
regions where poverty is common, contraceptive use is substantially lower than the
national average--e.g., 38% in the Zamboanga Peninsula and 24% in the Autonomous
Region in Muslim Mindanao. [58]

The present condition of the country's reproductive health care, taken together with the
Constitution's mandate to promote and protect the right to health of the people,
constitutes a compelling state interest as would justify an incidental burden on the
religious freedom of conscientious objectors. Sections 7 and 23(a)(3) of R.A. No. 10354
were crafted to ensure that the government's effort in disseminating information and
providing access to services and programs on reproductive health would not be stymied.
The said provisions seek to improve the condition of the reproductive health care in the
country.

Nevertheless, Congress recognized that, in enacting regulations to further the

reproductive health of the people, including access to modem family planning methods,
resistance thereto based on religious scruples would abound. Notwithstanding the
presence of a compelling state interest in the promotion and protection of reproductive
health, Congress deemed it proper to carve out exemptions that specifically take into
account the religious dissensions of conscientious objectors, which effectively exempts
them from the requirements imposed under Sections 7 and 23(a)(3). In this regard, it
cannot thus be claimed that the said provisions invidiously interfere with the free
exercise of religion.

Nevertheless, it cannot be denied that the government's effort to provide increased

access to information, programs, and services regarding reproductive health would be
seriously hampered by the exemption accorded to conscientious objectors. A
considerable number of health facilities in the country are owned and operated by
religious institutions. Likewise, being a predominantly Catholic country, there are a
considerable number of health service providers who, due to their religious convictions,
view modem methods of family plarming, a major component of reproductive health
under R.A. No. 10354, as immoral.

In view of the accommodation granted to conscientious objectors under Sections 7 and

23(a)(3), a great portion of the public would still be denied access to information,
programs, and services regarding reproductive health, thus, effectively defeating the
lofty objectives of R.A. No. 10354. Thus, Congress, still recognizing the religious freedom
of conscientious objectors, instead imposed on them the "duty to refer" the patients
seeking reproductive health care and service to another health facility or reproductive
health care service provider. Under the circumstances, the "duty to refer" imposes the
least possible interference to the religious liberties of conscientious objectors.

Thus, the "duty to refer" imposed by Sections 7 and 23(a)(3) does not invidiously
interfere with the religious freedom of conscientious objectors; any discomfort that it
would cause the conscientious objectors is but an incidental burden brought about by
the operation of a facially neutral and secular regulation. Not all infringements of
religious beliefs are constitutionally impermissible. Just as the religious freedom of
conscientious objectors must be respected, the higher interest of the State should
likewise be afforded utmost protection.

Conscientious scruples have not, in the course of the long struggle for religious
toleration, relieved an individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs.[59] particularly in this case where the
provisions in question have already given accommodation to religious dissensions.
Values that are protected against government interference through enshrinement in the
Bill of Rights are not thereby banished from the political process.[60]

Further, the health care industry is one that is imbued with public interest. Their
religious scruples aside, health facilities and health care service providers owe it to the
public to give them choice on matters affecting reproductive health. Conscientious
objectors carmot be permitted to impose their religious beliefs on others by denying
them the choice to do so as it would amount to according a preferred status to their
rights over the rights of others.

The duty to provide information

regarding programs and services on
reproductive health under Section 23
(a)(l) does not run afoul of religious
freedom.

Section 23(a)(1)[61] punishes any health care service provider who either: (1) knowingly
withhold information regarding programs and services on reproductive health; (2)
knowingly restrict the dissemination of information regarding programs and services on
reproductive health; and/or (3) intentionally provide incorrect information regarding
programs and services on reproductive health.

The ponencia  struck down Section 23(a)(l) as being unconstitutional as it supposedly

impinges on the religious freedom of health care service providers. That in the
dissemination of information regarding programs and services on reproductive health,
the religious freedom of health care service providers should be respected.

I do not agree.

Contrary to the insinuation of the ponencia, Section 23(a)(l) does not compel health
care service providers to violate their religious beliefs and convictions. Section 23(a)(l)
does not absolutely prohibit a health care service provider from withholding
information regarding programs and services on reproductive health.

A rule of statutory construction is that a statute must be construed as a whole. The

meaning of the law is not to be extracted from a single part, portion or section or from
isolated words and phrases, clauses or sentences, but from a general consideration or
view of the act as a whole. Every part of the statute must be interpreted with reference
to the context.[62] In line with this rule, Section 23(a)(l) should be read in conjunction
with Section 23(a)(3), which provides that "the conscientious objection of a health care
service provider based on his/her ethical or religious belief shall be respected."

Accordingly, a health care service provider who conscientiously objects, based on

his/her ethical or religious beliefs, to programs and services regarding reproductive
health is exempted from the effects of Section 23(a)(l) only insofar as it punishes a
health care service provider who knowingly withholds information on said programs
and services. Section 23(a)(l), in relation to Section 23(a)(3), recognizes that a
conscientious objector cannot be compelled to provide information on reproductive
health if the same would go against his/her religious convictions. In such cases,
however, the conscientious objector, pursuant to Section 23(a)(3), has the correlative
duty to immediately refer the person seeking information on programs and services on
reproductive health to another health care service provider within the same facility or
one which is conveniently accessible.

However, a health care service provider who knowingly restricts the dissemination of
information or intentionally provides incorrect information on programs and services
regarding reproductive health, though the said acts are based on his/her conscientious
objections, would still be liable under Section 23(a)(1).

Section 23(a)(1) recognizes the primacy of the right of an individual to be informed and,
accordingly, exercise his/her right to choose and make decisions on matters affecting
his/her reproductive health. The provision aims to assure that every Filipino will have
access to unbiased and correct information on the available choices he/she have with
regard to reproductive health.[63]

It is conceded that the rights of those who oppose modem family planning methods,
based on ethical or religious beliefs, should be respected. This is the reason why Section
23(a)(1), in relation to Section 23(a)(3), exempts a conscientious objector from the duty
of disclosing information on programs and services regarding reproductive health.

However, such accommodation does not give license to the conscientious objectors to
maliciously provide wrong information or intentionally restrict the dissemination
thereof to those who seek access to information or services on reproductive health. Just
as their rights must be respected, conscientious objectors must likewise respect the
right of other individuals to be informed and make decisions on matter affecting their
reproductive health. The freedom to act on one's belief, as a necessary segment of
religious freedom, like all other rights, comes with a correlative duty of a 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.[64]

Further, it cannot be gainsaid that the health care industry is one, which is imbued with
paramount public interest. The State, thus, have the right and duty to ensure that health
care service providers would not knowingly restrict the dissemination of information or
intentionally provide incorrect information on programs and services regarding
reproductive health on the pretense of their religious scruples.

Section 23(b) and Section 5.24

of the IRR are not anathema to the
equal protection clause. 

Section 23(b)[65] penalizes any public officer specifically charged with the implementation
of the provisions of R.A. No. 10354 who either: (1) restricts or prohibits the delivery of
reproductive health care services; (2) forces, coerces or induces any person to use
reproductive health care services; (3) refuses to allocate, approve or release any budget
for reproductive health care services; (4) refuses to support reproductive health
programs; or (5) does any act that hinders the full implementation of a reproductive
health program.

On the other hand, the last paragraph of Section 5.24 of the IRR, provides that "[public]
skilled health professionals such as provincial, city, or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions of [R.A. No. 10354
and its IRR] cannot be considered as conscientious objectors."

The ponencia declared Section 23(b) and the last paragraph of Section 5.24 of the IRR as
unconstitutional for being violative of the equal protection clause. The  ponencia held
that the "conscientious objection clause" under Section 23(a)(3) "should equally be
protective of the religious belief of public health officers;" that the "protection accorded
to other conscientious objectors should equally apply to all medical practitioners
without distinction whether he belongs to the public or private sector."

I do not agree.

Equal protection simply provides that all persons or things similarly situated should be
treated in a similar manner, both as to rights conferred and responsibilities imposed.
The purpose of the equal protection clause is to secure every person within a State's
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state's duly
constituted authorities.[66]

Persons or things ostensibly similarly situated may, nonetheless, be treated differently if

there is a basis for valid classification.[67] The legislature is allowed to classify the subjects
of legislation; if the classification is reasonable, the law may operate only on some and
not all of the people without violating the equal protection clause.[68] Classification, to be
valid, must (1) rest on substantial distinctions, (2) be germane to the purpose of the law,
(3) not be limited to existing conditions only, and (4) apply equally to all members of the
same class.[69]

Contrary to the  ponencia 's ratiocination, I find that a valid classification exists as would
justify the withholding of the religious accommodation extended to health care service
providers under Section 23(a)(3) from public officers who are specifically charged with
the implementation of the provisions ofR.A. No. 10354 and its IRR.

There is a substantial distinction as regards a conscientious objector under Section 23(a)

(3), who may be a public or private health care service provider, and a public officer
specifically charged with the duty to implement the provisions of R.A. No. 10354 and its
IRR. The Constitution provides that a public office is a public trust.[70] An important
characteristic of a public office is that its creation and conferment involves a delegation
to the individual of some of the sovereign functions of government, to be exercised by
him for the benefit of the public; that some portion of the sovereignty of the country,
either legislative, executive, or judicial, attaches, for the time being, to be exercised for
the public benefit.[71]

That a public officer is specifically delegated with the a sovereign function of the
government, i.e. the implementation of the provisions of RA 10354 and its IRR, is what
sets him apart from a health care service provider under Section 23(a)(3). It should be
clarified, however, that the religious accommodation extended to conscientious
objectors under Section 23(a)(3) covers public health care service providers, who are
likewise considered public officers.[72] However, unlike the public officers under Section
23(b) and Section 5.24 of the IRR, public health care service providers under Section
23(a)(3) are not specifically charged with the implementation of the provisions of R.A.
No. 10354 and its IRR.

Further, classifying a public officer charged with the implementation of the provisions of
R.A. No. 10354 and its IRR apart from health care service providers under Section 23(a)
(3) is not only germane, but also necessary to the purpose of the law. To reiterate, the
primary objective of R.A. No. 10354 is to provide an increased access to information,
programs, and services regarding reproductive health. Allowing the same religious
accommodation extended under Section 23(a)(3) to public officers charged with the
implementation of the law would seriously hamper the delivery of the various programs
and services regarding reproductive health under R.A. No. 10354. In this regard, a public
officer specifically charged with the implementation of the provisions of R.A. No. 10354
and its IRR is considered an agent of the State; he cannot thus be allowed to effectively
frustrate the legitimate interest of the State in enacting R.A. No. 10354 by refusing to
discharge the sovereign functions delegated to him to the detriment of the public.

Moreover, the duration of the said classification is not limited to existing conditions.
Also, the prohibition imposed under Section 23(b) and Section 5.24 of the IRR applies
equally to all public officers specifically charged with the implementation of the law.
Accordingly, the equal protection claim against Sections 23(b) and 5.24 of the IRR must
evidently fail.

I agree though with the ponencia 's declaration that "the freedom to believe is intrinsic
in every individual and the protective robe that guarantees its free exercise is not taken
off even if one acquires employment in the government." Indeed, it is undeniable that a
man does not shed his spirituality once he assumes public office. However, it cannot
equally be denied that the State, in the pursuit of its legitimate secular objectives,
should not be unnecessarily impeded by the religious scruples of its agents. Pursuant to
the principle of separation of Church and State, it is not only the State that is prohibited
from in purely ecclesiastical affairs; the Church is likewise barred from meddling in
purely secular matters.[73]

Thus, in People v. Veneracion,[74] the Court, in resolving the question of whether a judge,

after a finding that the accused had committed a crime punishable by the penalty of
death, when the death penalty law was still in effect, has the discretion to impose the
penalty of reclusion perpetua on account of his religious beliefs, stated that:

We are aware of the trial judge's misgivings in imposing the death sentence because of
his religious convictions. While this Court sympathizes with his predicament, it is its
bounden duty to emphasize that a court of law is no place for a protracted debate on
the morality or propriety of the sentence, where the law itself provides for the sentence
of death as a penalty in specific and well-defined instances. The discomfort faced by
those forced by law to impose the death penalty is an ancient one, but it is a matter
upon which judges have no choice. Courts are not concerned with the wisdom, efficacy
or morality of laws. x x x.[75]
Reason demands that public officers who are specifically charged with the
implementation of the provisions of R.A. No. 10354 and its IRR be classified differently
from public and private health care service providers under Section 23(a)(3); they
cannot be allowed to avail of the religious accommodation granted to conscientious
objectors lest the lofty objectives of the law be disparaged. Any discomfort that would
be caused to such public officers is but a mere incidental burden in the exercise of their
religious belief, which is justified by the compelling state interest in the enactment
ofR.A. No. 10354.

Section 23(a)(2) punishes the refusal to perform reproductive health procedures due
to lack of spousal consent and/or parental consent; it is not inimical to freedom of
religion.

Section 23(a)(2)[76] penalizes any health care service provider who refuses to perform
legal and medically-safe reproductive health procedures on the ground of lack of
consent or authorization of either: (1) the spouse, in the case of married persons; or (2)
the parents or person exercising parental authority, in the case of abused minors, where
the parent or the person exercising parental authority is the respondent, accused, or
convicted perpetrator.

The ponencia struck down Section 23(a)(2) for being unconstitutional, pointing out that,
"in the performance of reproductive health procedures, the religious freedom of health
care service providers should be respected." The ponencia 's conclusion stems from a
misapprehension of the acts penalized under Section 23(a)(2); it does not, in any
manner, invidiously interfere with the religious rights of health care service providers.

Section 23(a)(2) does not penalize the refusal of a health care service provider to
perform reproductive health procedures per se. What is being penalized by the
provision is the refusal of a health care service provider to perform such procedures on
the ground of lack of spousal consent or parental consent in certain cases. Indeed, for
reasons to be explained at length later, a health care service provider cannot avoid the
performance of reproductive health procedure, in case of married persons, solely on the
ground of lack of spousal consent since there would be no justifiable reason for such
refusal.

Likewise, it is quite absurd to expect that the parent of or one exercising parental
authority over an abused minor would give consent for the latter's reproductive health
procedure if he/she is the one responsible for the abuse. Thus, Section 23(a)(2)
dispenses with the requirement of parental authority from the abusive parent or person
exercising parental authority. In such case, a health care service provider cannot refuse
the performance of reproductive health procedure on the abused minor solely on the
ground of lack of parental consent.

Nevertheless, even in cases where the individual seeking reproductive health procedure
is married or is an abused minor, a health care service provider may validly refuse to
perform such procedure if the objection thereto is based on his/her ethical or religious
beliefs. Section 23(a)(2) must be read in conjunction with Section 23(a)(3), which
provides for religious accommodation of conscientious objectors. However, in such
cases, the health care service provider would still have the duty to immediately refer the
married individual or the abused minor to another health care service provider within
the same facility or one, which is conveniently accessible.

Section 23(a)(2)(i) merely upholds the primacy of an individual's choice on matters

affecting his/her health; it does not intrude into the right to marital privacy.

Essentially, Section 23(a)(2)(i)77 provides that a married individual may undergo a

reproductive health procedure sans the consent/authorization of his/her spouse; that
any health care service provider who would obstinately refuse to perform such
procedure on a married individual on the pretext of the lack of spousal consent would
be penalized accordingly.

The ponencia declared Section 23(a)(2)(i) as being contrary to Section 3, Article XV of

the Constitution, which requires the State to defend the "right of the spouses to found a
family," thus unduly infringing on the right to marital privacy. The ponencia explained
that the said provision "refers to reproductive health procedures like tubal ligation and
vasectomy which, by their very nature, require mutual consent and decision between
the husband and wife as they affect issues intimately related to the founding of the
family." The ponencia pointed out that decision-making concerning reproductive health
procedure "falls within the protected zone of marital privacy" from which State
intrusion is proscribed. Thus, the ponencia concluded, dispensing with the spousal
consent is "disruptive of family unity" and "a marked departure from the policy of the
State to protect marriage as an inviolable social institution."

It is conceded that intimate relations between husband and wife fall within the right of
privacy formed by emanations of the various guarantees in the Bill ofRights, to which
State intrusion is proscribed.[78] However, I do not agree that upholding a married
individual's choice to submit to reproductive health procedure despite the absence of
the consent or authorization of his/her spouse would be disruptive of the family.

The ponencia harps on the right to privacy that inheres in marital relationships. Yet the
marital couple is not an independent entity, with a mind and heart of its own, but an
association of two individuals, each with a separate intellectual and emotional makeup.
[79]
 While the law affirms that the right of privacy inheres in marital relationships, it
likewise recognizes that a spouse, as an individual per se, equally has personal
autonomy and privacy rights apart from the right to marital privacy guaranteed by the
Constitution. A spouse's personal autonomy and privacy rights, as an individual per
se,  among others, necessitates that his/her decision on matters affecting his/her health,
including reproductive health, be respected and given preference.

At the heart of Section 23(a)(2)(i) is the fundamental liberty of an individual to personal

autonomy,  i.e., to decide on matters affecting his/her reproductive health. Section 23(a)
(2)(i), contrary to the ponencia 's insinuation, does not hinder a married individual from
conferring with his/her spouse on his/her intended reproductive health procedure.
There is nothing in the said provision, which prevents a husband/wife from obtaining
the consent/authorization for an intended reproductive health procedure. Nevertheless,
the objection of the other spouse thereto, as common sense would suggest, should not
prevent a married individual from proceeding with the reproductive health procedure
since it is his/her bodily integrity that is at stake.

In this regard, the ruling of the US Supreme Court Planned Parenthood v. Danforth[80] is

instructive. Danforth involves a Missouri abortion statute, which, inter alia, required the
written consent of the husband before a woman may be allowed to submit to an
abortion81 during the first 12 weeks of pregnancy. The US Supreme Court declared the
spousal consent requirement unconstitutional for unduly intruding into the right to
privacy of the woman. Thus:

We now hold that the State may not constitutionally require the consent of the spouse,
as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the
first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present
case, and with the courts whose decisions are cited above, that the State cannot
delegate to a spouse a veto power which the state itself is absolutely and totally
prohibited from exercising during the first trimester of pregnancy.

x x x Clearly, since the State cannot regulate or proscribe abortion during the first stage,
when the physician and his patient make that decision, the State cannot delegate
authority to any particular person, even the spouse, to prevent abortion during that
same period.

We are not unaware of the deep and proper concern and interest that a devoted and
protective husband has in his wife's pregnancy and in the growth and development of
the fetus she is carrying. Neither has this Court failed to appreciate the importance of
the marital relationship in our society. x x x Moreover, we recognize that the decision
whether to undergo or to forgo an abortion may have profound effects on the future of
any marriage, effects that are both physical and mental, and possibly
deleterious. Notwithstanding these factors, we cannot hold that the State has the
constitutional authority to give the spouse unilaterally the ability to prohibit the wife
from terminating her pregnancy when the State itself lacks that right.x x x.

It seems manifest that, ideally, the decision to terminate a pregnancy should be one
concurred in by both the wife and her husband. No marriage may be viewed as
harmonious or successful if the marriage partners are fundamentally divided on so
important and vital an issue. But it is difficult to believe that the goal of fostering
mutuality and trust in a marriage, and of strengthening the marital relationship and
the marriage institution, will be achieved by giving the husband a veto power
exercisable for any reason whatsoever or for no reason at all. Even if the State had the
ability to delegate to the husband a power it itself could not exercise, it is not at all likely
that such action would further, as the District Court majority phrased it, the "interest of
the state in protecting the mutuality of decisions vital to the marriage relationship."

xxxx

We recognize, of course, that, when a woman, with the approval of her physician but
without the approval of her husband, decides to terminate her pregnancy, it could be
said that she is acting unilaterally. The obvious fact is that, when the wife and the
husband disagree on this decision, the view of only one of the two marriage partners
can prevail. Inasmuch as it is the woman who physically bears the child and who is the
more directly and immediately affected by the pregnancy, as between the two, the
balance weighs in her favor. x x x.

(Emphases ours)[82]

It is indeed ideal that the decision whether to submit to reproductive health procedure
be a joint undertaking of the spouses, especially on such a vital and sensitive matter. It is
inevitable, however, for cases to abound wherein a husband/wife would object to the
intended procedure of his/her spouse. In such cases, the right to reproductive health of
a spouse would be rendered effectively inutile. I do not see how fostering such
stalemate, which can hardly be considered as a harmonious and blissful marital
relationship, could "protect the marriage as an inviolable social institution."

Thus, the law, in case of disagreement, recognizes that the decision of the spouse
undergoing the reproductive health procedure should prevail. In so declaring, Section
23(a)(2)(i) does not invidiously interfere with the privacy rights of the spouses. In
dispensing with the spousal consent/authorization in case of disagreement, the law is
not declaring a substantive right for the first time; even in the absence of such
declaration, the decision of the spouse undergoing the reproductive health procedure
would still prevail. Section 23(a)(2)(i) is but a mere recognition and affirmation of a
married individual's constitutionally guaranteed personal autonomy and his/her right to
reproductive health.

Requiring the rendition of pro bono

reproductive health services to indigent women
for PhilHealth accreditation does not infringe on
religious freedom.

Section 17 encourages private and non-government reproductive health care service

providers "to provide at least forty-eight (48) hours annually of reproductive health
services, ranging from providing information and education to rendering medical
services, free of charge to indigent and low-income patients." It further mandated that
the pro bono reproductive health services shall be included as a prerequisite in the
accreditation under the PhilHealth.

The ponencia declared that Section 17, contrary to the petitioners' stance, does not
amount to involuntary servitude; that it merely encourages reproductive health care
service providers to render pro bono services. The ponencia likewise held that requiring
the rendition of said pro bono services for PhilHealth accreditation is not an
unreasonable burden, but a necessary incentive imposed by Congress in the furtherance
of a legitimate State interest. Nevertheless, the ponencia declared Section 17
unconstitutional insofar as it affects conscientious objectors in securing PhilHealth
accreditation; that conscientious objectors are exempt from rendition of reproductive
health services, pro bono or otherwise.

While I agree with the ponencia that Section 17 does not amount to involuntary

servitude and that requiring the rendition of pro bono reproductive health services for
PhilHealth accreditation is not an unreasonable burden to health care service providers,
I disagree that Section 17 is unconstitutional as applied to conscientious objectors.

As pointed out earlier, it is conceded that health care service providers may not be
compelled to provide certain information or service regarding reproductive health if it
would be anathema to his/her religious convictions. Specifically, under Section 17, a
health care service provider may not be denied the opportunity to be accredited under
R.A. No. 7875, otherwise known as the National Health Insurance Act of 1995, as
amended by R.A. No. 10606, for his/her refusal to render pro bono reproductive health
services that are contrary to his/her religious beliefs.

However, that a health care service provider has religious objections to certain
reproductive health care services does not mean that he/she is already exempted from
the requirement under Section 17 for PhilHealth accreditation. The requirement under
Section 17 is stated in general terms and is religion-neutral; it merely states that health
care service providers, as a condition for PhilHealth accreditation, must render pro
bono reproductive health service. The phrase "reproductive health care service" is quite
expansive and is not limited only to those services, which may be deemed objectionable
based on religious beliefs.

Reproductive health care includes: (1) family planning information and services; (2)
maternal, infant and child health and nutrition, including breastfeeding; (3) proscription
of abortion and management of abortion complications; (4) adolescent and youth
reproductive health guidance and counseling; (5) prevention, treatment, and
management of reproductive tract infections, HIV and AIDS, and other sexually
transmittable infections; (6) elimination of violence against women and children, and
other forms of sexual and gender-based violence; (7) education and counseling on
sexuality and reproductive health; (8) treatment of breast and reproductive tract
cancers, and other gynecological conditions and disorders; (9) male responsibility and
involvement, and men's reproductive health; (10) prevention, treatment, and
management of infertility and sexual dysfunction; (11) reproductive health education
for adolescents; and (12) mental health aspect of reproductive health care.[83]

Thus, a health care service provider, his/her religious objections to certain reproductive
health care services aside, may still render pro bono reproductive health care service, as
a prerequisite for PhilHealth accreditation, by providing information or medical services,
for instance, on treatment of breast and reproductive tract cancers, and other
gynecological conditions and disorders or on maternal, infant and child health and
nutrition.

ACCORDINGLY, I vote to DECLARE UNCONSTITUTIONAL only Section 7 of Republic Act

No. 10354, insofar as it dispenses with the requirement of parental consent for minors
who are already parents or have had a miscarriage, for being contrary to Section 12,
Article II of the Constitution.

[1]
 Section 9. The Philippine National Drug Formulary System and Family Planning
Supplies. - The National Drug Formulary shall include hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies. The Philippine National Drug Formulary System
(PNDFS) sh all be observed in selecting drugs including family planning supplies that will
be included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available
on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals:  Provided, further, That the foregoing
offices shall not purchase or acq uire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent.

[2]
 Section 15. Certificate of Compliance. -No marriage license shall be issued by the Local
Civil Registrar unless the applicans present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate
instructions and information on responsible pa renthood, family planning, breastfeeding
and infant nutrition.

[3]
 Section 17. Pro Bono Services for indigent Women. - Private and nongovernment
reproductive healthcare service providers includ ing, but not limited to, gynecologists
and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of
reproductive health services, ranging from providing in formation and education to
rendering medical services, free of charge to indigent and low-income patients as
identified through the NHTS-PR and other government measures of identifying
marginalization, especially to pregnant adolescents. The forty-eight (48) hours
annual pro bono services shall be included as a prerequisite in the accreditation under
the PhilHealth.

[4]
 Section 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled
Birth Attendance. - The LGUs shall end eavor to hire an adequate number of nurses, m
idwives and other skilled health professionals for maternal health care and skilled birth
attenda nce to achieve an ideal skilled health professional-to-patient ratio taking into
consideration DOH targets: Provided, That people in geographica lly isolated or highly
populated a nd depressed areas shall be provided the same level of access to health
care: Provided, further, That the national government shall provide additional and
necessary funding and other necessary assistance for the effective implementation of
this provision.

xxxx

[5]
 Section 6. Health Care Facilities. -Each LGU, upon its determination of the necessity
based on well-supported data provided by its local health office shall endeavor to
establish or upgrade hospitals and facilities with adequate and qualified personnel,
equipment and supplies to be able to provide emergency obstetric and newborn
care: Provided, That people in geographically isolated or highly populated and
depressed areas shall have the same level of access and shall not be neglected by
providing other means such as home visits or mobile health care clinics as
needed: Provided, further, That the national government shall provide additional and
necessary funding and other necessary assistance for the effective implementation of
this provision.

[6]
 Section 16. Capacity Building of Barangay Health Workers (BHWs). - The DOH shall be
responsible for disseminating information and providing training programs to the LGUs.
The LGUs, with the technical assistance of the DOH, shall be responsible for the training
of BHWs and other barangay volunteers on the promotion of reproductive health. The
DOH shalJ provide the LGUs with medical supplies and equipment needed by BHWs to
carry out their functions effectively: Provided, further, That the national government
shall provide additionaJ and necessary funding and other necessary assistance for the
effective implementation of this provision including the possible provision of additional
honoraria for BHWs.

[7]
 Executive Order No. 209.

[]
 FAMILY CODE, Article 220(4) and (6).

[9]
 FAMILY CODE, Article 228(3).

[10]
 FAMILY CODE, Article 234, as amended by Republic Act No. 6809.

[11]
 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

[12]
 Parham v. J.R., 442 U.S. 584, 604 (1977).

[13]
 Section 14. Age- and Development-Appropriate Reproductive Health Education. - The
State shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trained teachers informal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women 's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents
teachers-community associations, school officials and other interest groups. The
Department of Education (DepED) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.

[14]
 Section 4(b) of R.A. No. 10354 defines the term "adolescent" as referring to "young
people between the ages often (10) to nineteen (19) years who are in transition from
childhood to adulthood."

[15]
 Petition (G.R. No. 205478), Echavez, MD., et al. v. Ochoa, Jr., et al. , pp. 13-14.

[16]
 Mercado v. AMA Computer College-Paranaque City, Inc.,  G.R. No. 183572, April13,
2010, 618 SCRA 218, 236;  Miriam College Foundation, Inc. v. Court of Appeals,  401 Phil.
431, 455-456 (2000).
[17]
 Senate Journal, Session No. 25, October 15, 2012, Fifteenth Congress, p. 565.

[18]
 Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the
senate version of R.A. No. 10354, citing Young Adolescent Fertility Survey 2002 by UP
Population Institute; http:1/miriam.com.phlnewsblog/2011/08/17/the-reproductive-
health-act-sponsorship-speech-parts-2-and-3/, last accessed on March 24, 2014.

[19]
 ld.

[20]
 Id.

[21]
 CONSTITUTION, Article Jl, Section 12.

[22]
 CONSTITUTION, Article XIV, Section 2(2).

[23]
 381 u.s. 479 (1968).

[24]
 Id.

[25]
 See Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 399; Ople v.
Torres, 354 Phil. 948 (1998); Morfe v. Mutuc, et al., 130 Phil. 415 (1968).

[26]
 Petition (G.R. No. 205478), Echavez, MD., et al. v. Ochoa, Jr., et al.,  p. 4.

[27]
 478 P.2d 314 (1970).

[28]
 393 U.S. 97 (1968).

[29]
 Id.

[30]
 See Edwards v. Aguillard, 482 U.S. 578 (1987).

[31]
  See also Smith v. Ricci, 89 N.J. 514 (1982) where the Supreme Court of New Jersey
upheld the State's "family life education program" in the public elementary and
secondary curricula over objections that it infringes on the religious freedom of the
parents.

[32]
 CONSTITUTION, Article III, Section 5.

[33]
 See Corwin, The Constitution and What It Means Today, 14th ed., p. 97,
citing Cantwell v. Connecticut, 310 U.S. 296 at 303 (1940).

[34]
 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary,
2003 ed., p. 314.

[35]
 See Austria v. National Labor Relations Commission, 371 Phil. 340, 353 (1999); Cruz,
Constitutional Law, 2000 ed., pp. 178-179.
[36]
 Cantwell v. Connecticut,  310 U.S. 296 (1940).

[37]
 See Reynolds v. United States, 98 U.S. 145 (1879); Prince v. Massachusetts,  321 U.S.
158 (1944); Employment Division v. Smith, 494 U.S. 872 (1990).

[38]
 Cruz, Constitutional Law, 2000 ed., p. 187.

[39]
 Id.

[40]
 455 Phil. 411 (2003).

[41]
 ld. at 576.

[42]
 Id. at 522-523.

[43]
 Id. at 577-578.

[44]
 Braunfeld v. Brown, 366 U.S. 599 (1961); Sherbert v. Verner, 374 U.S. 398 (1963).

[45]
 Article 25 of the United Nations' Universa1 Declaration of Human Rights states that:

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same social protection.

[46]
 CONSTITUTION, Article II, Section 15.

[47]
 CONSTITUTION, Article XIII, Section 11.

[48]
 R.A. No. 10354, Section 3(d).

[49]
 R.A. No. 10354, Section 3(c).

[50]
 R.A. No. 10354, Section 3(e).

[51]
 Senate Journal, Session No. 18, September 13, 2011, Fifteenth Congress, p. 292.

[52]
 Estrada v. Escritor , supra note 40 at 531.

[53]
 Comment-in-Intervention, The Filipino Catholic Voices for Reproductive Health, Inc.,
pp. 36-37.
[54]
 Id. at 37.

[55]
  Sponsorship speech of Senator Miriam Defensor-Santiago on Senate Bill 2865, the
senate version of R.A. No. 10354; http://miriam.com.phlnewsblogl2011/08/17/the-
reproductive-health-act-sponsorship speech-parts-2-and-3/, last accessed on March 24,
2014.

[55]
 Sponsorship speech of Senator Pia S. Cayetano on Senate Bill 2865, the senate
version of R.A. No. 10354; http://senatorpiacayetano.com/?p=412, last accessed on
March 24, 2014.

[57]
 Unintended Pregnancy and Unsafe Abortion in the Philippines: Context and
Consequences;http://www.guttmacher.orglpubs/IB-unintended-pregnancy-
philippines.html, last accessed on March 24, 2014.

[58]
 Id.

[59]
 Employment Division v. Smith, supra note 37.

[60]
 Id.

[61]
 SEC. 23. Prohibited Acts.-The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or

intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full range of
legal, medically-safe, non-abortifacient and effective family planning methods;

xxxx

[62]
 Aquino v. Quezon City, 529 Phil. 486, 498 (2006).

[63]
 Senate Journal, Session No. 27, October 5, 2011, Fifteenth Congress, p. 433.

[64]
 Tulfo v. People, G.R. No. 161032, September 16, 2008, 565 SCRA 283, 305.

[65]
 Section 23. Prohibited Acts. -The following acts are prohibited:

xxxx

(b) Any public officer, elected or appointed, specifically charged with the duty to
implement the

provisions hereof, who, personally or through a subordinate, prohibits or restricts the

delivery of legal and medically-safe reproductive health care services, including family
planning; or forces, coerces or induces any person to use such services; or refuses to
allocate, approve or release any budget for reproductive health care services, or to
support reproductive health programs; or shall do any act that hinders the full
implementation of a reproductive health program as mandated by this Act;

xxxx

[66]
 Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No. 181704,
December 6, 2011, 661 SCRA 589, 609.

[67]
 Nachura, Outline Reviewer in Political Law, 2006 ed., p. 95.

[68]
 Epperson v. Arkansas,  supra note 28, at 126.

[69]
 Tiu v. Court of Appeals, 361 Phil. 229, 242 (1999).

[70]
 CONSTITUTION, Article XI, Section 1.

[71]
 See Cruz, The Law on Public Officers, 2007 ed., p. 3.

[72]
 Section 5.24 of the IRR recognizes that public officers, i.e., public skilled health
professionals may be conscientious objectors, albeit after complying with certain
requisites, viz:

Section 5.24. Public Skilled Health Professional as a Conscientious Objector. In order to

legally refuse to deliver reproductive health care services or information as a
conscientious objector, a public skilled health professional shall comply with the
following requirements:

a) The skilled health professional shall explain to the client the limited range of services
he/she can provide;

b) Extraordinary diligence shall be exerted to refer the client seeking care to another
skilled health professional or volunteer willing and capable of delivering the desired
reproductive health care service within the same facility;

c) If within the same health facility, there is no other skilled health professional or
volunteer willing and capable of delivering the desired reproductive health care service,
the conscientious objector shall refer the client to another specific health facility or
provider that is conveniently accessible in consideration of the client 's travel
arrangements and financial capacity;

d) Written documentation of compliance with the preceding requirements; and e) Other

requirements as determined by the DOH.

In the event where the public skilled health professional cannot comply with all of the
above requirements, he or she shall deliver the client's desired reproductive health care
service or information without further delay.

[73]
 Cruz, Constitutional Law, 2000 ed., p. 179.
[74]
 319 Phil. 364 (1995).

[75]
 Id. at 373.

[76]
 SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(2) Refuse to perform legal and medically-safe reproductive health procedures on any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement,

the decision of the one undergoing the procedure shall prevail; and

(ii) Parental consent or that of the person exercisin g parental authority in the case of ab
used minors, where the parent or the person exercisi ng parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial
office of the court. In the case of minors, the written consent of parents or legal
guardian or, in their absence, persons exercising parental authority or next-of-kin shall
be required only in elective surgical procedures and in no case shall consent be required
in emergency or serious cases as defined in Republic Act No. 8344; and

xxxx

[77]
 Id.

[78]
 See Griswold v. Connecticut, supra note 23.

[79]
 Eisenstadt v. Baird, 405 U.S. 438 (1972).

[80]
 428 U.S. 52 (1976); see also Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992).

[81]
 In the US, Abortion, pursuant to Roe v. Wade, (410 U.S. 113 [1973]) is a recognized
right of the woman before a fetus is viable outside the womb, which is generally during
the first trimester of the pregnancy.

[82]
 Id.

[83]
 R.A. No. 10354, Section 4(q).

DISSENTING OPINION
 “The most important thing we decide
is what not to decide.”
Brandeis, J.[1]

LEONEN, J.:

The Responsible Parenthood and Reproductive Health Act of 2012 should not be
declared unconstitutional in whole or in any of its parts given the petitions filed in this
case.

None of the petitions properly present an “actual case or controversy,” which deserves
the exercise of our awesome power of judicial review.[2] It is our duty not to rule on the
abstract and speculative issues barren of actual facts.[3] These consolidated petitions,
which contain bare allegations, do not provide the proper venue to decide on
fundamental issues.  The law in question is needed social legislation.

That we rule on these special civil actions for certiorari and prohibition — which
amounts to a pre-enforcement free-wheeling facial review of the statute and the
implementing rules and regulations[4] — is very bad precedent. The issues are far from
justiciable. Petitioners claim in their class suits that they entirely represent a whole
religion,[5] the Filipino nation[6] and, worse, all the unborn.[7] The intervenors also claim
the same representation: Filipinos and Catholics.[8] Many of the petitions also sue the
President of the Republic.[9]

We should apply our rules rigorously and dismiss these cases. The transcendental
importance of the issues they want us to decide will be better served when we wait for
the proper cases with the proper parties suffering real, actual or more imminent injury.
There is no showing of an injury so great and so imminent that we cannot wait for these
cases.

Claims relating to the beginning of life, the relationship of conscientious objection and
the right to religion, the effects of contraception, and even the ponencia’s claim that the
family is put in danger if one spouse decides when there is a disagreement between
them are best decided within their real contexts so that we will be able to narrowly
tailor the doctrines in our decision.[10] The danger of ruling on abstract cases is that we
foreclose real litigation between real parties.[11] The danger of an advisory opinion is that
we are forced to substitute our own imagination of the facts that can or will happen.  In
an actual case, there is judicial proof of the real facts that frame our discretion.

The law clearly adopts a policy against abortion and prohibits abortifacients.[12] The
definition of abortifacients is sufficiently broad to cover many moral convictions relating
to the beginning of life.[13] We do not need to decide on these issue barren of actual
facts that can sharpen factual and legal positions.

The court cannot make a declaration on the beginning of life. Any declaration on this
issue will be fraught with contradictions. Even the Constitutional Commissioners were
not in full agreement; hence, the use of the word “conception” rather than “fertilized
ovum” in Article II, Section 12 of the Constitution.[14] There were glaring factual
inaccuracies peddled during their discussion.[15]

Moreover, declaring the beginning of life complicates future constitutional adjudication.

This will have real repercussions on, among others, acceptable medical procedures for
ectopic pregnancies,[16] medical complications as a result of pregnancy resulting from
sexual assaults,[17] and on assisted reproductive technologies.[18]

The petitions have failed to present clear cases when the provisions for conscientious
objection would truly amount to a violation of religion. They have not distinguished the
relationship of conscience and specific religious dogma.[19] They have not established
religious canon that conflict with the general provision of Sections 7, 17 and 23 of the
law. The comments in intervention[20] in fact raise serious questions regarding what
could be acceptable Catholic doctrine on some issues of contraception and sex as only
for procreation.

The majority has decided to nullify portions of the law on the basis of inchoate Catholic
doctrine without considering that the law as phrased would be acceptable to other
faiths, consciences and beliefs. Due to the failure of the petitioners to present actual
cases, it cannot be possible to see whether their religious objection can be
accommodated in the application and interpretation of the law rather than nullify the
provisions wholesale.

We should tread carefully when what is involved is a religion that is not the minority.
Invocations of religious freedom can be a disguised way of imposing the dominant faith
on others. This is especially true in physician-patient relationships. While the physician
may have her or his own religious beliefs, this should not improperly dictate on the
range of services that is wanted and needed by the patient.[21] Again, there are no actual
cases in specific contexts with clear religious beliefs pertaining to accepted dogma of a
religion established by the petitions. The proposed declaration of unconstitutionality of
portions of Section 23 is premature and inadvisable.  It also amounts to a judicial
amendment of the physician’s oath.

The law breaks the deadlock when there is disagreement between the spouses as to
whether to avail of a reproductive health technology.[22] The ponencia proposes that this
violates the right to family.[23] This is one conclusion. The other is that it allows the
couple to have a final decision and not continue with a perennial conflict. The other
possibility here is that the man, who most often is not the one who avails of the
reproductive health technology, dictates on the woman. This will then result in a
violation of the requirement of fundamental equality in Article II, Section 14 of the
Constitution.[24] The majority, in refusing to acknowledge the autonomy of individuals
over their own bodies even in the context of marriage, has just strengthened patriarchy
and increased the possibility for spousal abuse.

All the petitions are premature. At worse, the petitions attempt to impose a moral or
political belief upon the others by tempting this court to use its power of judicial review.
This court is not the venue to continue the brooding and vociferous political debate that
has already happened and has resulted in legislation.[25] Constitutional issues normally
arise when the right and obligations become doubtful as a result of the implementation
of the statute. This forum does not exist to undermine the democratically deliberated
results coming from the Congress and approved by the President. Again, there is no
injury to a fundamental right arising from concrete facts established with proof. Rather,
the pleadings raise grave moral and philosophical issues founded on facts that have not
yet happened.  They are the product of speculation by the petitioners.

To steeled advocates who have come to believe that their advocacy is the one true
moral truth, their repeated view may seem to them as the only factual possibility. Rabid
advocacy of any view will be intolerant of the nuanced reality that proceeds from
conscious and deliberate examination of facts.

This kind of advocacy should not sway us.

Our competence is to decide on legal principle only in concrete controversies. We

should jealously and rigorously protect the principle of justiciability of constitutional
challenges. We should preserve our role within the current constitutional order. We
undermine the legitimacy of this court when we participate in rulings in the abstract
because there will always be the strong possibility that we will only tend to mirror our
own personal predilections. We should thus adopt a deferential judicial temperament
especially for social legislation.

This law should not be declared as unconstitutional, in whole or in part, on the basis of
the consolidated petitions. The status quo ante order against the Responsible
Parenthood and Reproductive Health Act of 2012 or Republic Act No. 10354 (RH Law)
should be lifted immediately.

There should be no further obstacle in having the entire law fully implemented.

I
No Actual Controversy,
“Facial Review” is Improper

It has never been the constitutional mandate of the Supreme Court to answer all of life’s
questions. It is endowed instead with the solemn duty to determine when it should
decline to decide with finality questions that are not legal and those that are theoretical
and speculative. This court’s duty includes its ability to stay its hand when the issues
presented are not justiciable.

The requirement in constitutional adjudication is that we decide only when there is a

“case or controversy.”[26] This is clear in the second paragraph of Article VIII, Section 1 of
the Constitution, thus:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis supplied)

The requirement for a “case” or “controversy” locates the judiciary in the scheme of our
constitutional order. It defines our role and distinguishes this institution from the other
constitutional organs.

The ponencia claims that there is an actual case and controversy existing in the present
controversy, and it is ripe for determination.[27] The ponente reasons that “[c]onsidering
that the RH Law and its implementing rules have already taken effect, and considering
that the budgetary measures to carry out the law have already been passed, it is evident
that the subject petitions present a justiciable controversy. As stated earlier, when an
action of the legislative branch is seriously alleged to have infringed the Constitution, it
not only becomes a right, but also a duty of the Judiciary to [settle] the dispute.”[28]

I disagree.

An actual case or controversy is “one which involves a conflict of legal rights, an

assertion of opposite legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar considerations not cognizable
by a court of justice.”[29] To be justiciable, the issues presented must be “‘definite and
concrete, touching the legal relations of parties having adverse legal interest;’ a real and
substantial controversy admitting of specific relief.”[30] The term justiciability refers to
the dual limitation of only considering in an adversarial context the questions presented
before courts, and in the process, the courts’ duty to respect its co-equal branches of
government’s powers and prerogatives under the doctrine of separation of powers.[31]

There is a case or controversy when there is a real conflict of rights or duties  arising
from actual facts. These facts, properly established in court through evidence or judicial
notice, provide the natural limitations upon judicial interpretation of the statute. When
it is claimed that a statute is inconsistent with a provision of the Constitution, the
meaning of a constitutional provision will be narrowly drawn.

Without the necessary findings of facts, this court is left to speculate leaving justices to
grapple within the limitations of their own life experiences. This provides too much
leeway for the imposition of political standpoints or personal predilections of the
majority of this court. This is not what the Constitution contemplates. Rigor in
determining whether controversies brought before us are justiciable avoids the counter
majoritarian difficulties attributed to the judiciary.

Without the existence and proper proof of actual facts, any review of the statute or its
implementing rules will be theoretical and abstract. Courts are not structured to predict
facts, acts or events that will still happen. Unlike the legislature, we do not determine
policy. We read law only when we are convinced that there is enough proof of the real
acts or events that raise conflicts of legal rights or duties. Unlike the executive, our
participation comes in after the law has been implemented. Verily, we also do not
determine how laws are to be implemented.
The existence of a law or its implementing orders or a budget for its implementation is
far from the requirement that there are acts or events where concrete rights or duties
arise. The existence of rules do not substitute for real facts.

Petitioners cite Province of North Cotabato v. Government of the Republic of the

Philippines Peace Panel on Ancestral Domain (GRP)[32] as basis for asserting that this
court can take cognizance of constitutional cases without actual controversies. In that
case, this court was asked to rule on the validity of the Memorandum of Agreement on
the Ancestral Domain (MOA-AD) between the GRP and the Moro Islamic Liberation
Front (MILF) which included provisions on the definition of the “Bangsamoro” people;
the “Bangsamoro Juridical Entity” (BJE); territory of the Bangsamoro homeland; the
total production sharing between the central government and the BJE relating to natural
resources; and “associative relationship” with the central government.[33]

Even in that case, this court acknowledged the requirement of an actual case or
controversy in exercising the power of judicial review.

The power of judicial review is limited to actual cases or controversies. Courts decline to
issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions. The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of
power, to assure that the courts will not intrude into areas committed to the other
branches of government.[34]

This court then ruled that the petitions were ripe for adjudication because of: “[1] the
failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3; [2]
respondents exceeded their authority by the mere act of guaranteeing amendments to
the Constitution. Any alleged violation of the Constitution by any branch of government
is a proper matter for judicial review.”[35] Citing David v. Macapagal-Arroyo, this court
allowed petitioners, petitioners-in-intervention, and intervening respondents’ claims of
locus standi due to the paramount public interest or transcendental importance of the
issues involved.

The actual case in  Province of North Cotabato was triggered by the process invoked in
the negotiation of the agreement and the claim that it exceeded the authority of the
government panel in talks with the Moro Islamic Liberation Front (MILF). Executive
Order No. 3 was already implemented by the acts of the negotiating panel.

The ponencia’s reading of Province of North Cotabato is inaccurate.  My esteemed

colleague holds:

x x x Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary
to render the controversy ripe. Even a singular violation of the Constitution and/or law
is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that
the same is ripe for judicial determination. Considering that the RH Law and its
implementing rules have already taken effect, and that the budgetary measures to carry
out the law have already been passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it not only becomes a right, but also
a duty of the Judiciary to settle the dispute.[36] (Emphasis in the original)

Unlike Province of North Cotabato, there is yet no implementation of the RH law. The

waiver of justiciability is the exception.  It is not the general rule.[37]  Province of North
Cotabato involved a peculiar set of facts that required this court to exercise its power of
judicial review. The respondents attempted to put the constitutional question outside
the court’s sphere of judicial review through the performance of acts that rendered a
ripening case moot and academic.[38]

In Garcia v. Executive Secretary,[39] this court was faced with the issue of the
constitutionality of Section 19 of Republic Act No. 8479[40] entitled “An Act Deregulating
The Downstream Oil Industry And For Other Purposes.” This court held that there was
no justiciable controversy in the case as the issue raised went into the policy or wisdom
of the law, thus:

Stripped to its core, what petitioner Garcia raises as an issue is the propriety of
immediately and fully deregulating the oil industry. Such determination essentially
dwells on the soundness or wisdom of the timing and manner of the deregulation
Congress wants to implement through R.A. No. 8497. Quite clearly, the issue is not for
us to resolve; we cannot rule on when and to what extent deregulation should take
place without passing upon the wisdom of the policy of deregulation that Congress has
decided upon. To use the words of Baker v. Carr, the ruling that petitioner Garcia asks
requires “an initial policy determination of a kind clearly for non-judicial discretion”; the
branch of government that was given by the people the full discretionary authority to
formulate the policy is the legislative department.

xxxx

Petitioner Garcia’s thesis readily reveals the political, hence, non-justiciable, nature of
his petition; the choice of undertaking full or partial deregulation is not for this Court to
make.[41]

Then in Atty. Lozano v. Speaker Nograles,[42] this court reiterated that “[i]n our
jurisdiction, the issue of ripeness [which is an aspect of the case or controversy
requirement] is generally treated in terms of actual injury to the plaintiff. Hence, a
question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it x x x [or when] an action has already been
accomplished or performed by a branch of government x x x.”[43]

In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,[44] this

court declined to rule on the constitutionality of Republic Act No. 9372 or “An Act to
Secure the State and Protect Our People from Terrorism,” otherwise known as the
Human Security Act of 2007. Again, with respect to the requirement of the existence of
an actual case, this court held:
As early as Angara v. Electoral Commission, the Court ruled that the power of judicial
review is limited to actual cases or controversies to be exercised after full opportunity of
argument by the parties. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate

or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion.

Information Technology Foundation of the Philippines v. COMELEC cannot be more

emphatic:

“[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciable—definite and
concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal right,
on the one hand, and a denial thereof on the other hand; that is, it must concern a real
and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.”

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati

into a Highly Urbanized City was held to be premature as it was tacked on uncertain,
contingent events. Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely wheedles the Court to
rule on a hypothetical problem.

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections
for failure to cite any specific affirmative action of the Commission on Elections to
implement the assailed resolution. It refused, in Abbas v. Commission on Elections, to
rule on the religious freedom claim of the therein petitioners based merely on a
perceived potential conflict between the provisions of the Muslim Code and those of
the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds
goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived
threat to any constitutional interest suffices to provide a basis for mounting a
constitutional challenge. This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the issues.[45] (Emphasis
supplied)

Recently, this court in Corales v. Republic[46] passed upon the ripeness or prematurity of

a petition for prohibition assailing the Audit Observation Memorandum (AOM) issued by
the Provincial State Auditor of Laguna against petitioner as Mayor. We again held that:
x x x this Court can hardly see any actual case or controversy to warrant the exercise of
its power of judicial review. Settled is the rule that for the courts to exercise the power
of judicial review, the following must be extant: (1) there must be an actual case calling
for the exercise of judicial power; (2) the question must be ripe for adjudication; and (3)
the person challenging must have the “standing.” An actual case or controversy involves
a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a mere hypothetical or abstract difference or dispute.
There must be a contrariety of legal rights that can be interpreted and enforced on the
basis of existing law and jurisprudence. Closely related thereto is that the question must
be ripe for adjudication. A question is considered ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual challenging it.

xxxx

The requisites of actual case and ripeness are absent in the present case. To repeat, the
AOM issued by Andal merely requested petitioner Corales to comment/reply thereto.
Truly, the AOM already contained a recommendation to issue a Notice of Disallowance;
however, no Notice of Disallowance was yet issued. More so, there was no evidence to
show that Andal had already enforced against petitioner Corales the contents of the
AOM. x x x.  The action taken by the petitioners to assail the AOM was, indeed,
premature and based entirely on surmises, conjectures and speculations that petitioner
Corales would eventually be compelled to reimburse petitioner Dr. Angeles’ salaries,
should the audit investigation confirm the irregularity of such disbursements.[47]

The doctrinal character of the requirement of an actual case may also be inferred from
the tenor of the reservations of several members of this court in Province of North
Cotabato.[48]

Then Justice Chico-Nazario, in voting to grant the motion to dismiss of the Office of
Solicitor General and to dismiss the petitions, pointed out that:

The Court should not feel constrained to rule on the Petitions at bar just because of the
great public interest these cases have generated. We are, after all, a court of law, and
not of public opinion. The power of judicial review of this Court is for settling real and
existent dispute, it is not for allaying fears or addressing public clamor. In acting on
supposed abuses by other branches of government, the Court must be careful that it is
not committing abuse itself by ignoring the fundamental principles of constitutional
law.

x x x. The Court must accord a co-equal branch of the government nothing less than
trust and the presumption of good faith.

xxxx

Upon the Executive Department falls the indisputably difficult responsibility of diffusing
the highly volatile situation in Mindanao resulting from the continued clashes between
the Philippine military and Muslim rebel groups. In negotiating for peace, the Executive
Department should be given enough leeway and should not be prevented from offering
solutions which may be beyond what the present Constitution allows, as long as such
solutions are agreed upon subject to the amendment of the Constitution by completely
legal means.[49] (Emphasis supplied)

Justice Velasco in that case emphasized the need to be vigilant in protecting the
doctrine of separation of powers enshrined in our Constitution, hence:

Over and above the foregoing considerations, however, is the matter of separation of
powers which would likely be disturbed should the Court meander into alien territory of
the executive and dictate how the final shape of the peace agreement with the MILF
should look like. The system of separation of powers contemplates the division of the
functions of government into its three (3) branches x x x. Consequent to the actual
delineation of power, each branch of government is entitled to be left alone to
discharge its duties as it sees fit. Being one such branch, the judiciary, as Justice Laurel
asserted in Planas v. Gil, “will neither direct nor restrain executive [or legislative
action].” Expressed in another perspective, the system of separated powers is designed
to restrain one branch from inappropriate interference in the business, or intruding
upon the central prerogatives, of another branch; it is a blend of courtesy and caution,
“a self-executing safeguard against the encroachment or aggrandizement of one branch
at the expense of the other.” x x x. The sheer absurdity of the situation where the hands
of executive officials, in their quest for a lasting and honorable peace, are sought to be
tied lest they agree to something irreconcilable with the Constitution, should not be lost
on the Court.

Under our constitutional set up, there cannot be any serious dispute that the
maintenance of the peace, insuring domestic tranquility and the suppression of violence
are the domain and responsibility of the executive. Now then, if it be important to
restrict the great departments of government to the exercise of their appointed powers,
it follows, as a logical corollary, equally important, that one branch should be left
completely independent of the others, independent not in the sense that the three shall
not cooperate in the common end of carrying into effect the purposes of the
constitution, but in the sense that the acts of each shall never be controlled by or
subjected to the influence of either of the branches.[50]

Eloquently, Justice Brion in his dissenting opinion in Province of North

Cotabato  asserted:

x x x. Where policy is involved, we are bound by our constitutional duties to leave the
question for determination by those duly designated by the Constitution—the
Executive, Congress, or the people in their sovereign capacity.

In the present case, the peace and order problems of Mindanao are essentially matters
for the Executive to address, with possible participation from Congress and the
sovereign people as higher levels of policy action arise. Its search for solutions, in the
course of several presidencies, has led the Executive to the peace settlement process. As
has been pointed out repetitively in the pleadings and the oral arguments, the latest
move in the Executive’s quest for peace—the MOA-AD—would have not been a good
deal for the country if it had materialized. This Court, however, seasonably intervened
and aborted the planned signing of the agreement. The Executive, for its part, found it
wise and appropriate to fully heed the signals from our initial action and from the public
outcry the MOA-AD generated; it backtracked at the earliest opportunity in a manner
consistent with its efforts to avoid or minimize bloodshed while preserving the peace
process. At the moment, the peace and order problem is still with the Executive where
the matter should be; the initiative still lies with that branch of government. The Court’s
role, under the constitutional scheme that we are sworn to uphold, is to allow the
initiative to be where the Constitution says it should be. We cannot and should not
interfere unless our action is unavoidably necessary because the Executive is acting
beyond what is allowable, or because it has failed to act in the way it should act,
under the Constitution and our laws.

xxxx

Rather than complicate the issues further with judicial pronouncements that may have
unforeseen or unforeseeable effects on the present fighting and on the solutions
already being applied, this Court should exercise restraint as the fears immediately
generated by a signed and concluded MOA-AD have been addressed and essentially
laid to rest. Thus, rather than pro-actively act on areas that now are more executive
than judicial, we should act with calibrated restraint along the lines dictated by the
constitutional delineation of powers. Doing so cannot be equated to the failure of this
Court to act as its judicial duty requires; as I mentioned earlier, we have judicially
addressed the concerns posed with positive effects and we shall not hesitate to
judicially act in the future, as may be necessary, to ensure that the integrity of our
constitutional and statutory rules and standards are not compromised. If we exercise
restraint at all, it is because the best interests of the nation and our need to show
national solidarity at this point so require, in order that the branch of government in the
best position to act can proceed to act.

xxxx

x x x. We can effectively move as we have shown in this MOA-AD affair, but let this
move be at the proper time and while we ourselves observe the limitations the
Constitution commonly impose on all branches of government in delineating their
respective roles.[51] (Emphasis supplied)

It is true that the present Constitution grants this court with the exercise of judicial
review when the case involves the determination of “grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.”[52] This new feature of the 1987 Constitution affects our political
question doctrine.  It does not do away with the requirement of an actual case.  The
requirement of an actual case is fundamental to the nature of the judiciary.

No less than Justice Vicente V. Mendoza implied that the rigorous requirement of an
actual case or controversy is determinative of the nature of the judiciary.  Thus:

[i]nsistence on the existence of a case or controversy before the judiciary undertakes a

review of legislation gives it the opportunity, denied to the legislature, of seeing the
actual operation of the statute as it is applied to actual facts and thus enables to it to
reach sounder judgment.[53]

In the recent case of Belgica, et al. v. Executive Secretary, we pointed out:[54]

[b]asic in litigation raising constitutional issues is the requirement that there must be an
actual case or controversy. This Court cannot render an advisory opinion. We assume
that the Constitution binds all other constitutional departments, instrumentalities, and
organs. We are aware that in the exercise of their various powers, they do interpret the
text of the Constitution in the light of contemporary needs that they should address. A
policy that reduces this Court to an adviser for official acts by the other departments
that have not yet been done would unnecessarily tax our resources. It is inconsistent
with our role as final arbiter and adjudicator and weakens the entire system of the Rule
of Law. Our power of judicial review is a duty to make a final and binding construction of
law. This power should generally be reserved when the departments have exhausted
any and all acts that would remedy any perceived violation of right. The rationale that
defines the extent of our doctrines laying down exceptions to our rules on justiciability
are clear: Not only should the pleadings show a convincing violation of a right, but the
impact should be shown to be so grave, imminent, and irreparable that any delayed
exercise of judicial review or deference would undermine fundamental principles that
should be enjoyed by the party complaining or the constituents that they legitimately
represent.

The requirement of an “actual case,” thus, means that the case before this Court
“involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial resolution; the case must not be moot or academic based on extra-legal or other
similar considerations not cognizable by a court of justice.” Furthermore, “the
controversy needs to be definite and concrete, bearing upon the legal relations of
parties who are pitted against each other due to their adverse legal interests.” Thus, the
adverse position of the parties must be sufficient enough for the case to be pleaded and
for this Court to be able to provide the parties the proper relief/s prayed for.

The requirement of an ‘actual case’ will ensure that this Court will not issue advisory
opinions. It prevents us from using the immense power of judicial review absent a party
that can sufficiently argue from a standpoint with real and substantial interests.[55]

Regretfully, the ponencia takes inconsistent positions as to whether the petitions do

allege actual cases. On the issue of the violation of the right to health under Section 9 of
the law,[56] he correctly held that the constitutional challenge is premature:

x x x not a single contraceptive has yet been submitted to the FDA pursuant [to the]
RH Law. It [behooves] the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and
medicines available to the public are safe for public consumption. x x x Indeed, the
various kinds of contraceptives must first be measured up to the constitutional yardstick
x x x to be determined as the case presents itself.[57] (Emphasis in the original)

Moreover, the ponencia also correctly held that a discussion on the constitutionality of
Section 14 of the law, pertaining to the teaching of Age- and Development-Appropriate
Reproductive Health Education,[58] is not yet ripe for determination:

x x x any attack on the validity of Section 14 of the RH Law is premature, as the

Department of Education, Culture and Sports have yet to formulate any curriculum on
age-appropriate reproductive health education. At this point, one can only speculate [on
the] contents, manner and medium of instruction that would be used to educate the
adolescents and whether [these] would contradict the religious beliefs of petitioners,
and validate their apprehensions. x x x.

xxxx

While the Court notes the possibility that educators could raise their objection to their
participation in the reproductive health education program provided under Section 14
of the RH Law on the ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.[59] (Emphasis in the
original)

Unfortunately, the ponencia failed to discuss how several provisions of the RH Law
became vulnerable to a facial attack, whereas other provisions must await an actual
case or controversy to pass upon its constitutionality. The ponencia explained that the:

x x x foregoing petitions have seriously alleged that the constitutional human right to
life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these
kindred petitions and determine if the RH Law can indeed pass constitutional scrutiny.[60]

I restate, for purposes of emphasis, parts of my disquisition on facial challenges in my

dissenting and concurring opinion in Disini v. Secretary of Justice.[61] After all, the
challenges to this present law and the Cybercrime Prevention Act of 2012 are the
public’s reaction to the increasingly liberal but disturbing treatment that we have given
on the issue of rigorous analysis for the justiciability of controversies brought before us.

The invalidation of the statute is either “on its face” or “as applied.” The only instance
when a facial review of the law is not only allowed but also essential is “when the
provisions in question are so broad that there is a clear and imminent threat that
actually operates or it can be used as a prior restraint of speech.” [62]

In Cruz v. Secretary of Environment and Natural Resources, [63] Justice Vicente V.

Mendoza explained the difference of an “as applied” challenge from an “on its face”
challenge:

The only instance where a facial challenge to a statute is allowed is when it operates
in the area of freedom of expression. In such instance, the overbreadth doctrine
permits a party to challenge the validity of a statute even though as applied to him it is
not unconstitutional but it might be if applied to others not before the Court whose
activities are constitutionally protected. Invalidation of the statute “on its face” rather
than “as applied” is permitted in the interest of preventing a “chilling” effect on
freedom of expression. But in other cases, even if it is found that a provision of a
statute is unconstitutional, courts will decree only partial invalidity unless the invalid
portion is so far inseparable from the rest of the statute that a declaration of partial
invalidity is not possible.[64] (Emphasis supplied)

Subsequently, in Estrada v. Sandiganbayan,[65] Justice Mendoza culled a more extensive

rule regarding facial or “on its face” challenges, thus:
[a] facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible “chilling effect” upon protected speech. The theory is
that “[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.” The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed by
the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area
of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First
Amendment.” In Broadrick v. Oklahoma, the Court ruled that “claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct.” For this reason, it has been held that “a facial
challenge to a legislative Act is … the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the
Act would be valid.”  x x x.

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing “on their faces” statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what
is involved is a criminal statute. With respect to such statute, the established rule is that
“one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons
or other situations in which its application might be unconstitutional.” x x x.[66] (Emphasis
supplied)

Similarly, this court in Prof. David v. Pres. Macapagal-Arroyo[67] laid down guides when a
facial challenge may be properly brought before this court, thus:

First and foremost, the overbreadth doctrine is an analytical tool developed for testing
“on their faces” statutes in free speech cases, also known under the American Law as
First Amendment cases.

xxxx

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only “spoken words” and again, that “overbreadth claims,
if entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct.” Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be

used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for
this is obvious. Embedded in the traditional rules governing constitutional adjudication
is the principle that a person to whom a law may be applied will not be heard to
challenge a law on the ground that it may conceivably be applied unconstitutionally to
others, i.e., in other situations not before the Court. A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a particular
litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating
its improper applications on a case to case basis. Moreover, challengers to a law are
not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute “on its
face,” not merely “as applied for” so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the “chilling;”
deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s “very existence may cause others
not before the court to refrain from constitutionally protected speech or expression.”
An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court
to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris, it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.[68] (Emphasis in the original)
A similar view was adopted by this court in Romualdez v. Hon.
Sandiganbayan[69] and Spouses Romualdez v. Commission on Elections. [70] Unfortunately,
in resolving the motion for reconsideration in Spouses Romualdez v. Commission on
Elections,[71] this court seemed to have expanded the scope of the application of facial
challenges. Hence:

x x x. The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge.[72]

However, the basic rule was again restated in Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council:[73]

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.

Justice Mendoza accurately phrased the subtitle in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the “chilling effect” on protected speech, the exercise of which should not at all times
be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes
that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact,
the legislature may even forbid and penalize acts formerly considered innocent and
lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.

The Court reiterated that there are “critical limitations by which a criminal statute may
be challenged” and “underscored that an ‘on-its-face’ invalidation of penal statutes x x x
may not be allowed.”

[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the State’s
ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding that
the law is clear as applied to him.

It is settled, on the other hand, that the application of the overbreadth doctrine is

limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under
situations not before the court, that are impermissibly swept by the substantially
overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the
litigants.

xxxx

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment, and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever,
will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are
justified by the “transcendent value to all society of constitutionally protected
expression.”[74] (Emphasis and underscoring in the original)

The prevailing doctrine today is that:

a facial challenge only applies to cases where the free speech and its cognates are
asserted before the court. While as a general rule penal statutes cannot be subjected to
facial attacks, a provision in a statute can be struck down as unconstitutional when
there is a clear showing that there is an imminent possibility that its broad language will
allow ordinary law enforcement to cause prior restraints of speech and the value of that
speech is such that its absence will be socially irreparable.[75]

Broken down into its elements, a facial review should only be allowed when:

First, the ground for the challenge of the provision in the statute is that it violates
freedom of expression or any of its cognates;

Second, the language in the statute is impermissibly vague;

Third, the vagueness in the text of the statute in question allows for an interpretation
that will allow prior restraints;

Fourth, the “chilling effect” is not simply because the provision is found in a penal
statute but because there can be a clear showing that there are special circumstances
which show the imminence that the provision will be invoked by law enforcers;
Fifth, the application of the provision in question will entail prior restraints; and

Sixth, the value of the speech that will be restrained is such that its absence will be
socially irreparable. This will necessarily mean balancing between the state interests
protected by the regulation and the value of the speech excluded from society.[76]

Facial challenges can only be raised on the basis of overbreadth and not on
vagueness. Southern Hemisphere demonstrated how vagueness relates to violations of
due process rights, whereas facial challenges are raised on the basis of overbreadth and
limited to the realm of freedom of expression.

None of these petitions justify a facial review of this social legislation.  The free exercise
of one’s religion may be a cognate of the freedom of expression.  However, the petitions
have not properly alleged the religion, the religious dogma, the actual application of the
religious dogma where a repugnancy can be shown.  They have also failed to
demonstrate that the violation of the amorphous religious dogmas that they imagine
should result in the invalidation of statutory text rather than simply an adjustment in its
interpretation and in its application.

II
No Locus Standi

Besides, the consolidated cases are improper class suits that should be dismissed
outright.

A class suit is allowed under the rules[77] if those who instituted the action are found to
be sufficiently numerous and representative of the interests of all those they seek to
represent. They must be so numerous that it would be impractical to bring them all to
court or join them as parties. Lastly, a common interest in the controversy raised must
be clearly established.[78]

These requirements afford protection for all those represented in the class suit
considering that this court’s ruling will be binding on all of them.  We should be
especially cautious when the class represented by a few in an alleged class suit is the
“entire Filipino Nation” or all the adherents of a particular religion. This court must be
convinced that the interest is so common that there can be no difference in the
positions and points of view of all that belong to that class. Anything less than this
standard will be an implied acceptance that in this important adjudication of alleged
constitutional rights, the views of a few can be imposed on the many.

In the 1908 case of Ibañes v. Roman Catholic Church,[79] 13 plaintiffs filed the complaint
for themselves and on behalf of the other inhabitants of the town of Ternate against the
Roman Catholic Church for the proprietorship of an image of the Holy Child.[80] This court
held that the action could not be maintained.

It sufficiently appears from the record in this case that it is a controversy between the
Roman Catholic Church on one side and the Independent Filipino Church on the other.
That it is the purpose of the plaintiffs, if they secure possession of the image, to place it
in the chapel of the Independent Church is also very clear. What number of the
inhabitants of the town (2,460 according to the census) are members of the Roman
Catholic Church and what part are members of the Independent Filipino Church does
not appear. But it is very apparent that many of the inhabitants are opposed to the
transfer of the image from the Roman Catholic Church. Under the circumstances, the
thirteen plaintiffs do not fairly represent all of the inhabitants of the town. Their
interest and the interests of some of the others are diametrically opposed. For this
reason this action can not be maintained.[81] (Emphasis supplied)

In the 1974 case of  Mathay v. Consolidated Bank and Trust Co., [82] this court affirmed the
dismissal of a complaint captioned as a class suit for failure to comply with the requisite
that the parties who filed the class suit must be sufficiently numerous and
representative:

The complaint in the instant case explicitly declared that the plaintiffs-appellants
instituted the "present class suit under Section 12, Rule 3, of the Rules of Court in behalf
of CMI subscribing stockholders" but did not state the number of said CMI subscribing
stockholders so that the trial court could not infer, much less make sure as explicitly
required by the statutory provision, that the parties actually before it were sufficiently
numerous and representative in order that all interests concerned might be fully
protected, and that it was impracticable to bring such a large number of parties before
the court.

xxxx

Appellants, furthermore, insisted that insufficiency of number in a class suit was not a
ground for dismissal of one action. This Court has, however, said that where it
appeared that no sufficient representative parties had been joined, the dismissal by
the trial court of the action, despite the contention by plaintiffs that it was a class suit,
was correct.[83] (Emphasis supplied)

In Re: Request of the Heirs of the Passengers of Doña Paz, [84] a class suit was filed by 27
named plaintiffs on behalf and in representation of “the approximately 4,000 persons x
x x (who also) are all close relatives and legal heirs of the passengers of the Doña
Paz.”[85] This court distinguished class suits[86] from permissive joinder of parties:[87]

x x x. What makes the situation a proper case for a class suit is the circumstance that
there is only one right or cause of action pertaining or belonging in common to many
persons, not separately or severally to distinct individuals.

xxxx

The other factor that serves to distinguish the rule on class suits from that of permissive
joinder of parties is, of course, the numerousness of parties involved in the former. The
rule is that for a class suit to be allowed, it is needful inter alia that the parties be so
numerous that it would be impracticable to bring them all before the court.[88]

Finding that the case was improperly brought as a class suit, this court concluded that
“it follows that the action may not be maintained by a representative few in behalf of all
the others.”[89] Consequently, this court denied the authority to litigate in the form of a
class suit.[90]
This ruling was again emphasized in Bulig-Bulig Kita Kamag-anak Association v. Sulpicio
Lines, Inc.,[91] making the ratio decidendi in Re: Request of the Heirs of the Passengers of
Doña Paz binding precedent.[92] These cases have been cited in a more recent
jurisprudence in its discussion on the need to sufficiently represent all interests for a
class suit to prosper.[93]

MVRS Publications, Inc. et al. v. Islamic Da’wah Council of the Philippines, Inc. et al.
[94]
 emphasized how adequacy of representation in a class suit is important in fully
protecting the interests of those concerned:

In any case, respondents’ lack of cause of action cannot be cured by the filing of a class
suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an
element of a class suit is the adequacy of representation. In determining the question of
fair and adequate representation of members of a class, the court must consider (a)
whether the interest of the named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made parties as it so bears to the total
membership of the class; and, (c) any other factor bearing on the ability of the named
party to speak for the rest of the class.

The rules require that courts must make sure that the persons intervening should be
sufficiently numerous to fully protect the interests of all concerned. In the present
controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert the
interests not only of the Muslims in the Philippines but of the whole Muslim world as
well. Private respondents obviously lack the sufficiency of numbers to represent such a
global group; neither have they been able to demonstrate the identity of their interests
with those they seek to represent. Unless it can be shown that there can be a safe
guaranty that those absent will be adequately represented by those present, a class suit,
given its magnitude in this instance, would be unavailing.[95]

Class suits require that there is a possibility that those represented can affirm that their
interests are properly raised in a class suit. The general rule must be that they be real
and existing. In constitutional adjudication, this court must approach class suits with
caution; otherwise, future generations or an amorphous class will be bound by a ruling
which they did not participate in.

Not all these elements for a proper class suit are present in the petitions filed in these
cases.

Petitioners James M. Imbong and Lovely-Ann C. Imbong, for themselves and in behalf of
their minor children, Lucia Carlos Imbong and Bernadette Carlos Imbong, and Magnificat
Child Development Center, Inc.[96] filed their petition “as parents and as a class suit in
representation of other parents and individuals similarly situated.”[97] They alleged that
they are “Catholics who have deeply-held religious beliefs upon which Faith their
conscience is rooted against complying with the mandates of the Act.”[98]

Four persons and a juridical entity cannot be considered as sufficiently numerous and
representative of the interests of “all other parents and individuals similarly situated.”

Petitioners Alliance for the Family Foundation, Inc. (ALFI), represented by its President,
Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B. Luistro, et al.
[99]
 invoked Oposa v. Factoran, Jr. in filing their petition “on behalf of all generations of
Filipinos yet unborn, who are in danger of being deprived of the right to life by R.A. No.
10354.”[100]

The required common interest in the controversy can neither be determined nor proven
in this case if those to be represented are yet to be born.

It is true that in Oposa v. Factoran, Jr.,[101] intergenerational suits were introduced in our

jurisdiction. However, this case must not be abused out of its context. Oposa is a novel
case involving an environmental class suit. This environmental case involved minor
petitioners who filed a complaint for the cancellation of all existing timber license
agreements in the country. They were allowed to sue on behalf of future generations on
the ground of “intergenerational responsibility,” in relation to the constitutional right to
a balanced and healthful ecology.[102] The state of our ecology will certainly affect future
generations regardless of ideology, philosophy or standpoints.

On the other hand, those who will only be born in the future may have different views
regarding the various policy approaches on responsible parenthood and reproductive
health. Hence, the commonality of the interest that will justify the presumption that the
legal positions will be the same is not present.

In its petition, Task Force for Family and Life Visayas, Inc.[103] alleged that it is “an
association of men and women who have committed themselves to the protection of
family and life, sanctity of marriage x x x.”[104] Its members are “Roman Catholics by
faith” and are “spread throughout the Visayan region.”[105] The petitioners collectively
seek relief “from the impending threat against their children, their respective families
and the entire Filipino nation, their religious freedom and other constitutional rights
they foresee and make known in this petition.”[106]

Petitioners, by no stretch of the imagination, cannot be representative of the interests

of “the entire Filipino nation.” Not all Filipinos are Roman Catholics. Not all Filipinos are
from the Visayas. Certainly not all Filipinos have a common interest that will lead to a
common point of view on the constitutionality of the various provisions of the RH law.

Serve Life Cagayan de Oro City, Inc., represented by Dr. Nestor B. Lumicao, M.D. as
President and in his personal capacity, Rosevale Foundation, Inc., represented by Dr.
Rodrigo M. Alenton, M.D. as member of the school board and in his personal capacity,
Rosemarie R. Alenton, Imelda G. Ibarra, CPA, Lovenia P. Naces, Ph.D., Anthony G. Nagac,
Earl Anthony C. Gambe, and Marlon I. Yap also filed a petition consolidated with these
cases.[107]

The individual petitioners alleged they are medical practitioners, members of the bar,
educators, and various professionals who filed this petition “as parents and as a class
suit in representation of other parents and individuals similarly situated.”[108] They are
“devout and practicing Catholics whose religious beliefs find the mandatory provisions
of the RH law obnoxious and unconscionable.”[109]

The basis for representing Catholics because their religious beliefs find the RH law
obnoxious and unconscionable is not shared by all Catholics. Again, the class is
improperly defined and could not withstand judicial scrutiny. Their views may not be
representative of the entire class they seek to represent.

Spouses Francisco S. Tatad and Maria Fenny C. Tatad and Alan F. Paguia alleged that
they are representing, themselves, their posterity, and the rest of Filipino posterity.
[110]
 They instituted their action “in their capacity as concerned citizens, taxpayers,
parents, grandparents, biological ancestors of all their descendants, born and unborn,
conceived or not yet conceived, up to their remotest generation in the future within the
context of Filipino posterity under the 1987 Constitution.”[111]

Three individual petitioners cannot be considered as sufficiently numerous and

representative of the interests “of the rest of Filipino posterity.” There is no showing
that future Filipinos will accept their point of view. No one can be certain of the interest
of Filipinos in the future. No one can be certain that even their descendants will agree
with their position.  Consequently, a common interest on the controversy with future
Filipinos cannot be established.

In fact, petitioners Couples for Christ Foundation, Inc., et al.[112] confirmed the existence
of divergent opinions on the RH law among Filipinos when it stated that “the Filipino
people, of whom majority are Catholics, have a strong interest in the final resolution of
the issues on reproductive health, which has divided the nation for years.” [113]

Pro-Life Philippines Foundation, Inc., represented by Lorna Melegrito as Executive

Director and in her personal capacity, Joselyn B. Basilio, Robert Z. Cortes, Ariel A.
Crisostomo, Jeremy I. Gatdula, Cristina A. Montes, Raul Antonio A. Nidot, Winston
Conrad B. Padojinog, and Rufino L. Policarpio III also filed a petition.[114]

The individual petitioners instituted this action “as parents, and as a class suit in
representation of other parents and individuals similarly situated.”[115] They alleged that
the RH law is “oppressive, unjust, confiscatory and discriminatory specifically against
herein petitioners – as parents, professionals, and faithful of the Catholic Church.”[116]

Again, there is no showing that these individual petitioners are sufficiently numerous
and representative of the interests of those they seek to represent.

The rationale for the dismissal of actions in these types of class suits is far from merely
procedural. Since petitioners claim representation, the argument that they bring as well
as the finality of the judgment that will be rendered will bind their principals. An
improperly brought class suit, therefore, will clearly violate the due process rights of all
those in the class. In these cases, certainly the entire Filipino nation, all the descendants
of petitioners, all Catholics, and all the unborn will be bound even though they would
have agreed with respondents or the intervenors.

Being improperly brought as class suits, these petitions should be dismissed.

Besides this infirmity, some of the petitions included the Office of the President as party
respondent.[117] Also on this basis, these petitions should be dismissed.

A sitting president cannot be sued.[118] This immunity exists during the President’s

incumbency only. The purpose is to preserve the dignity of the office that is necessary
for its operations as well as to prevent any disruption in the conduct of official duties
and functions.[119] Without this immunity, a proliferation of suits would derail the focus
of the office from addressing the greater needs of the country to attending each and
every case filed against the sitting President, including the petty and harassment suits.

The doctrine of presidential immunity is not a surrender of the right to demand

accountability from those who hold public office such as the President. The Constitution
enumerates the grounds when a President may be impeached.[120] This immunity is also
no longer available to a non-sitting President. After the end of his or her tenure, he or
she can be made criminally and civilly liable in the proper case.[121]

III
The Right to Life

Petitioners raise the issue of right to life under Article III, Section 1 of the Constitution in
relation to the policy of equal protection of the life of the mother and of the unborn
under Article II, Section 12. In this context, the right to life is viewed as the right to a
corporeal existence.

The constitutional right to life has many dimensions.  Apart from the protection against
harm to one’s corporeal existence, it can also mean the “right to be left alone”.  The
right to life also congeals the autonomy of an individual to provide meaning to his or her
life.  In a sense, it allows him or her sufficient space to determine quality of life.  A law
that mandates informed choice and proper access for reproductive health technologies
should not be presumed to be a threat to the right to life.  It is an affirmative guarantee
to assure the protection of human rights.

The threat to corporeal existence

The policy taken by the law against abortion is clear.  In the fifth paragraph of Section 2,
[122]
 the law provides:

The State likewise guarantees universal access to medically safe, non-abortifac[i]ent,

effective, legal, affordable, and quality reproductive health care services, methods,
devices, supplies which do not prevent the implantation of a fertilized ovum as
determined by the Food and Drug Administration (FDA) and relevant information and
education thereon according to the priority needs of women, children and other
underprivileged sectors x x x. (Emphasis supplied)

Section 3,[123] paragraph (d) likewise emphasizes the following as a guiding principle of

implementation:

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifac[i]ent, effective and quality reproductive health care services and supplies is
essential in the promotion of people’s right to health, especially those of women, the
poor and the marginalized, and shall be incorporated as a component of basic health
care[.] (Emphasis supplied)

Then, subparagraph (j) of the same section in this law states:

(j) While this Act recognizes that abortion is illegal and punishable by law, the
government shall ensure that all women needing care for post-abortive complications
and all other complications from pregnancy, labor and delivery and related issues shall
be treated and counseled in a humane, nonjudgmental and compassionate manner in
accordance with law and medical ethics[.] (Emphasis supplied)

Section 9[124] of the law provides:

Sec. 9. The Philippine National Drug Formulary System and Family Planning Supplies. –
The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectibles and other safe, legal, non-abortifac[i]ent and effective family
planning products and supplies. x x x. (Emphasis supplied)

Section 4, paragraph (a) of Republic Act No. 10354 defines abortifacient as:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of
a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and
be implanted in the mother’s womb upon determination of the FDA.

This should have been sufficient to address the contention by petitioners that the law
violates the right to life and that right to life means the right to a corporeal existence.

The ponencia found that the law was “consistent with the Constitution”[125] because it
“prohibits any drug or device that induces abortion” [126] and because it “prohibits any
drug or device [that prevents] the fertilized ovum to reach and be implanted in the
mother’s womb.”[127]

When life begins, not an issue.

However, the court cannot make a declaration of when life begins. Such declaration is
not necessary and is a dictum that will unduly confuse future issues.

First, there is, as yet, no actual controversy that can support our deliberation on this
specific issue.

Second, the court cannot rely on the discussion of a few commissioners during the
drafting of the constitution by the Constitutional Commission.

In Civil Liberties Union v. Executive Secretary,[128] this court noted:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make
the words consonant to that reason and calculated to effect that purpose.[129]
However, in the same case, this court also said:[130]

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings
are powerless to vary the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention “are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law.
We think it safer to construe the constitution from what appears upon its face.” The
proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers’s understanding thereof. [131] (Emphasis
supplied)

The meaning of constitutional provisions should be determined from a contemporary

reading of the text in relation to the other provisions of the entire document. We must
assume that the authors intended the words to be read by generations who will have
to live with the consequences of the provisions. The authors were not only the
members of the Constitutional Commission but all those who participated in its
ratification. Definitely, the ideas and opinions exchanged by a few of its
commissioners should not be presumed to be the opinions of all of them. The result of
the deliberations of the Commission resulted in a specific text, and it is that specific
text—and only that text—which we must read and construe.

The preamble establishes that the “sovereign Filipino people” continue to “ordain and
promulgate” the Constitution. The principle that “sovereignty resides in the people and
all government authority emanates from them”[132] is not hollow. Sovereign authority
cannot be undermined by the ideas of a few Constitutional Commissioners participating
in a forum in 1986 as against the realities that our people have to face in the present.

There is another, more fundamental, reason why reliance on the discussion of the
Constitutional Commissioners should not be accepted as basis for determining the spirit
behind constitutional provisions. The Constitutional Commissioners were not infallible.
Their statements of fact or status or their inferences from such beliefs may be wrong.
This is glaringly true during their discussions of their reasons for supporting the
formulation of Article II, Section 12 of the Constitution.[133]

It cannot be contended that the exact moment when life begins was a settled matter for
the Constitutional Commissioners. This is just one reading of their discussions.

For Commissioner Bernas, the reason for extending right to life to a fertilized
ovum[134] was to “prevent the Supreme Court from arriving at a x x x conclusion” similar
to Roe v. Wade.[135] In the process, he explained his ideas on the beginning of life:

FR. BERNAS: x x x The intent of this addition is to preclude the Supreme Court from
following the United States doctrine which does not begin to weigh the life of the
unborn against that of the mother until the fetus has reached a viable stage of
development. In American doctrine, during the first six months of pregnancy, the only
requirement for allowing abortion is that it will not be harmful to the mother. It is only
after the sixth month that the life of the fetus begins to be weighed against the life of
the mother.

The innovation does not say that from the first moment the sperm and the egg shake
hands, human life is already present, much less does it say that at that moment, a soul
is infused; nor does the innovation say that the right to life of the fertilized ovum must
prevail over the life of the mother all the time. All that the innovation says is that from
the moment of fertilization, the ovum should be treated as life whose worth must be
weighed against the life of the woman, not necessarily saying that they are of equal
worth.[136]

x x x. The Argument in Roe v. Wade is that the important thing is the privacy of the
mother’s womb. If she wants to get rid of that fetus anytime within the first six months,
it is allowed provided it can be done safely even if there is no medical reason for it. That
is the only thing contemplated in this.[137]

However, despite Fr. Bernas’ statement on the proposed inclusion of “[t]he right to life
extends to the fertilized ovum” in Section 1 of the Bill of Rights, Bishop Bacani stated
that human life already existed at the time of conception:

BISHOP BACANI: The formulation reached by the Committee was “fertilized ovum,” to
precisely define what we meant. And it will be brought forward in another committee
report that the right to life begins with conception. That is meant to explain what is
understood on the committee report by the word “conception.” The Gentleman was
asking whether this is a human person. That is not the assertion yet of this section. But
what we do assert is this, that this is human life already. If I may be allowed to read
the results of the report by Fr. Robert Henley, who is also a Jesuit like Fr. Bernas, it
seems they are in all camps. Let me just read this into the record. He says:

Specializing as it does in fetal physiology, Georgetown University, probably more than

almost any other university, is aware of the biological facts regarding the beginnings of
human life.

From the moment of conception a new biological entity exists. The entity cannot be
considered as physically identical with the mother’s body. To consider the matter
broadly, there is no essential difference between an ovum fertilized within the body and
an ovum fertilized outside the parent’s body or rejected in an egg or emerging
undeveloped, as in marsupials, in an external pouch. To destroy this entity is to destroy
an existing life. Since this life entity is clearly within the development of the human
species, there is obviously nothing added on a human being. Its destruction is the
destruction of human life. Murder cannot be justified by a legal fiction. [138]

Further in the deliberations on this issue, Ms. Felicitas Aquino* propounded some
concerns:

MS. AQUINO: Madam President, before the issue on the right to life is lost in the
interdebate on the vexing question of the U.S. bases, I am intervening to settle some
matters about the matter of the right to life.
I am very much alarmed by the absolutist claim to morality in the defense of human life,
the defense that was raised by Commissioner Villegas. There is presently a raging
debate on the philo-ethical considerations of the origin or the beginnings of human life
that at this moment, I do not think we are in any position to preempt the debate and
come up with a premature conclusion on the matter. There are still pressing questions
in my mind, such as: Is the biological existence of a potentiality for life synonymous with
human personality? Is viability synonymous with life? There are at least a dozen theories
that attempt to address themselves to this kind of question. For example, we are aware
of the Thomistic concept of hylomorphism which posits the complementarity of matter
and form. The theory demands that before human life is assumed, the material body
demands a certain measure of organization and form that makes it capable of receiving
a soul. It operates on the premise that individuality is the basic premise and the
fundamental criterion for human life and human personality and individuality requires
consciousness and self-reflection.

There is another theory which states that human life begins two to three weeks after
conception; that is after the possibility on the process of twinning the zygote or the
recombination of the zygote is finally ruled out. These are questions that need to be
addressed in our Civil Code. For example, in the context of this discussion, Articles 40
and 41 are settled that personality is determined by birth, and that for all purposes
favorable to it, a conceived baby is considered born but subject to the conditions of
Article 41 which says that personality is determined by live birth. I would think that
Articles 40 and 41 are not only settled, but are the most practical approach to the raging
debate on the matter of human life. It lays as the criteria for its conclusion the individual
biological criteria, with special emphasis on the physical separation of the fetus from the
mother and the requirements of viability.

I am alarmed by the way we tend to preempt this kind of discussion by invoking the
claims of the righteousness of morality. These questions for me are transcendental that
we cannot even attempt to address any conclusion on the matter unless we can address
the question without temerity or without bigotry. Besides, the level of human
knowledge on this debate is so severely restricted that to preempt the debate is, I
guess, to preempt the deliberations and finally the possibility of agreement on the
diverse theories on the matter.[139]

In response, Mr. Villegas dismissed the concerns and declared that the issue of the
beginning of life is already settled.

MR. VILLEGAS: Madam President, it is precisely because this issue is transcendental that
we have to make also a transcendental statement. There is no debate among medical
scientists that human life begins at conception, so that is already a settled question.
We are talking about life. As I said, we are not talking about human personality, neither
are we saying that the human person can be decided precisely by law, nor at what time
it will have the right to property and inheritance. The only right that we are protecting
is the right to life at its beginning, which medical science genetics has already
confirmed as beginning at conception.[140] (Emphases supplied)

The Constitutional Commission deliberations show that it is not true that the issue of
when life begins is already a settled matter. There are several other opinions on this
issue. The Constitutional Commissioners adopted the term “conception” rather than
“fertilized ovum.”

New discoveries in reproductive science, particularly the possibility of cloning, provide

basis for the possible significance of viable implantation in the uterus as the “beginning
of life and personhood.” It is at implantation when a group of cells gain the potential of
progressing into a human being without further intervention.[141]

There are others who say that human life is defined by the presence of an active brain.
[142]
 Without it, there is no human being.[143]

Another theory is that human life begins when organs and systems have already been
developed and functioning as a whole, consistent with the idea that death happens
upon cessation of organized functions of these organs and systems.[144] Zygote and
embryonic stages are merely transitional phases.[145]

Others suggest that life begins when there is no more possibility of “twinning.”[146]

There are also those who do not share the moral value and, therefore, the legal
protection that can be given to a fertilized ovum even assuming that that would be the
beginning of life.

During the Constitutional Commission deliberations, Rev. Rigos pointed out the need to
“consider the sensibilities of other religious groups.”[147] He asked:

REV. RIGOS: x x x. But like a few people who spoke this morning, I am a bit disturbed by
the second sentence: “The right to life extends to the fertilized ovum.”

In discussing this proposed sentence, did the Committee consider the sensibilities of
some religious groups which do not look at the fertilized ovum as having reached that
stage that it can be described as human life?[148]

Fr. Bernas answered: “Precisely, we used that word to try to avoid the debate on
whether or not this is already human life.” [149]

Later, Rev. Rigos asked if the aim of the clause could not be achieved through
legislation.[150]

Bishop Bacani stated the reason for his belief why the matter could not be left to
legislation. He said:

x x x. We would like to have a constitutional damper already on the assault to human

life at its early stages. And we realized that it can be possible to more easily change x x x
easier to change legislation on abortion. Hence, we would like to be able to prevent
those changes in the laws on abortion later.[151]

Rev. Rigos pointed out the differing opinions on the commencement of human life. He
said that “[i]f we constitutionalize the beginning of human life at a stage we call
fertilized ovum, then we are putting a note of the finality to the whole debate.”[152] To
this, Bishop Bacani said that there were people from other religions who were against
abortion. He said:
BISHOP BACANI: I would like to remind Reverend Rigos that when we talk about this, it
is not a question of religious boundaries. In fact, let me just read what is contained in an
article given by one of my researchers. It says that many scholarly Protestant and Jewish
leaders are prominent in the pro-light movement – and they are referring to the anti-
abortion movement. I do not want to put this simply on the denominational plain, and it
is misleading to put it at that level.

xxxx

BISHOP BACANI: Because these are people who are not Catholics – who are Jewish,
Protestants, even atheists – but who are against abortion. [153]

Rev. Rigos clarified that while Bishop Bacani was correct in describing the Protestant
church’s stance against abortion “on the whole,” “x x x there is a big segment in the
Protestant church that wishes to make a clear distinction between what we call abortion
and miscarriage.” [154]

A paper published in the Journal of Medical Ethics written by Cameron and Williamson
summarizes various religious views on life’s beginnings.[155] It was asserted that “[t]he
Bible, the Koran, and the Talmud do not actually say when life begins, although each has
been the subject of various interpretations.”[156]

The traditional Catholic view is that life begins at fertilization.[157] However, even

“[w]ithin the Catholic Church, there are differing views.”[158] Cameron and Williamson
mentioned subscription “to theories of ‘delayed’ or ‘mediate’ animation” or the infusion
of the soul at points after fertilization.[159] There are also arguments that even
distinguished theologians like St. Augustine and St. Thomas claim that a fetus becomes a
person only between the 40th to 80th day from conception and not exactly at
fertilization.[160]

Similar to the traditional Catholic view, Buddhism, Sikhism, and Hinduism believe that
life begins at conception.[161]

Some Muslim scholars, according to Cameron and Williamson, believe that a fetus gains
soul only in the fourth month of pregnancy or after 120 days.[162] Other Muslims believe
that a six-day embryo is already entitled to protection.[163]

The view that life begins at fertilization was supported during the debates in the
Constitutional Commission by the idea that a fertilized ovum always develops into a
human life.

Commissioner Ms. Aquino observed:

MS. AQUINO: I cannot. This is very instructive because as the Commissioner will note,
even this Commission cannot settle the question of whether a fertilized egg has the right
to life or not. Those experts in the field of medicine and theology cannot settle this
question. It is bad enough for us to pre-empt this controversial issue by
constitutionalizing the ovum; it would be doubly tragic for us to provide for ambiguities
which may even disturb settled jurisprudence.[164]
Mr. Nolledo answered:

MR. NOLLEDO: I do not think there is ambiguity because the fertilized egg, in the
normal course of events, will be developed into a human being, a fetus, and as long as
the normal course of events is followed. I think that the right to life exists and the
Constitution should recognize that right to life. We do not presume accidents; we do not
presume ambiguities. We presume that as long as it is categorized as a fertilized ovum,
it will ripen into human personality.[165] (Emphasis supplied)

Unfortunately, this may be wrong science.

There are studies that suggest that a fertilized egg, in the normal course of events, does
not develop into a human being. In Benagiano, et al.’s paper entitled Fate of Fertilized
Human Oocytes,[166] it was shown that pre-clinical pregnancy wastage is at least 50%.
Some estimate that the chance that pregnancy will proceed to birth may be as low as
about 30%.[167] Some causes of this wastage are implantation failure, chromosome or
genetic abnormality, and similar causes. If normalcy is defined by this percentage, then
it is pregnancy wastage that is normal and not spontaneous development until birth.
Based on these, there may be no basis to the presumption that a fertilized ovum will
“ripen into human personality” as Mr. Nolledo suggested.

To highlight the fallibility of the Constitutional Commissioners, one of them argued that
a fertilized ovum is human because it is the only species that has 46 chromosomes. 
Thus:

MR. VILLEGAS: x x x. Is it human? Genetics gives an equally categorical "yes." At the

moment of conception, the nuclei of the ovum and the sperm rupture. As this happens
23 chromosomes from the ovum combine with 23 chromosomes of the sperm to form a
total of 46 chromosomes. A chromosome count of 46 is found only — and I repeat,
only — in human cells. Therefore, the fertilized ovum is human. (Emphasis supplied)

Since these questions have been answered affirmatively, we must conclude that if the
fertilized ovum is both alive and human, then, as night follows day, it must be human
life. Its nature is human.[168]

MR. VILLEGAS: As I explained in the sponsorship speech, it is when the ovum is fertilized
by the sperm that there is human life. Just to repeat: first, there is obviously life because
it starts to nourish itself, it starts to grow as any living being, and it is human because at
the moment of fertilization, the chromosomes that combined in the fertilized ovum are
the chromosomes that are uniquely found in human beings and are not found in any
other living being. [169] (Emphasis supplied)

Again, this is factually wrong.

A person who has Down’s Syndrome may have 47 chromosomes.[170] Most persons who
have Turner’s Syndrome are one chromosome short or have 45 chromosomes.
[171]
 Persons with these conditions are no less human than persons with 46
chromosomes. Meanwhile, there are also known species which have 46 chromosomes
other than humans. A Reeves’ Muntjac, for example, has 46 chromosomes.[172]
Then, there was the claim that the instances when there had to be a choice made
between the life of the mother and the life of the zygote, fetus or child were few.

Mr. Villegas asserted:

MR. VILLEGAS: As I stated in my sponsorship speech, 99 percent of the cases indicated

that taking care of the health of the mother is taking care of the child and vice versa.
Because of the progress of medical science, the situations when a moral dilemma exists
are very, very few. The intention behind the statement is precisely for the State to
make sure that it protects the life of the pregnant mother. She goes to all sorts of
trouble as we have discussed in the provisions on health. Protecting the life of the
mother, giving her all the necessary social services will protect the child. So it happens
only in very, very few instances which we mentioned, like ectopic pregnancies when
the fertilized ovum is implanted outside of the uterus. I repeat, medical science has
made the situation very, very exceptional.

xxxx

MR. VILLEGAS: Madam President, as I said in response to the question yesterday of

Commissioner Suarez, 99 percent of the cases related to protection of the mother’s
health, making sure that she is in the right working conditions and that she is not
subjected to stress, show that there are so many things that can endanger the life of the
unborn because the health of the mother is not sufficiently cared for. This is really a
prolife provision which emphasizes the fact that in most instances, protecting the life of
the mother is also protecting the life of the unborn.[173] (Emphasis supplied)

Taking care of the mother does not always mean taking care of the zygote, fetus or
child. There are instances wherein in order to protect the life of the mother, the zygote,
fetus or child may have to be sacrificed.

Implantation of the fertilized egg in areas outside the uterus such as the fallopian tube
or ovaries may cause organ rupture and severe loss of blood. To save the mother’s life,
surgical removal[174] of the fertilized ovum may be necessary.

Pre-eclampsia/eclampsia or hypertension during pregnancy[175] is associated with

increased perinatal mortality.[176] It may also result in other complications such as
seizures, hemorrhage, or liver or kidney complications that may be life-threatening.[177] It
may require premature delivery of the child to prevent further complications or when
the life of the mother is already threatened by seizures or other complications.[178]

Meanwhile, pregnant persons who have cancer may have to choose between
chemotherapy and risking harm to the developing embryo or fetus in her womb or not
undergoing chemotherapy and risking her life.[179]

The Department of Health estimated that more than a thousand women died in 2009
for various causes. It is observed that most of these causes are the same complications
that caused a moral dilemma between saving the mother and saving the child.[180]
MATERNAL MORTALITY: BY MAIN CAUSE
Number, Rate/1000 Livebirths & Percent Distribution
Philippines, 2009
CAUSE Number Rate Percent*
TOTAL 1,599 0.9 100.0
1. Complications related to pregnancy occurring 655 0.4 41.0
in the course of labor, delivery and puerperium
2. Hypertension complicating pregnancy, 513 0.3 32.1
childbirth and puerperium
3. Postpartum hemorrhage 286 0.2 17.9
4. Pregnancy with abortive outcome 142 0.1 8.9
5. Hemorrhage in early pregnancy 3 0.0 0.2
*Percent share to total number of maternal deaths

In asserting that there are only a few instances of moral dilemma during pregnancy, Mr.
Villegas insisted on the application of the doctrine of double effect. He stated:

MR. VILLEGAS: x x x. And we said that even in those instances, which I consider to be
less than one percent of the situation, there is a moral principle which we referred to as
the principle of double effect in which if one has to save the life of the mother in an
operation, it is morally and legally permissible to so operate even if the child will have to
be indirectly sacrificed. There is no murder involved there because one does not intend
the death of the child. One is correcting a medical aberration of the mother.

xxxx

MR. VILLEGAS: It is the same principle of double effect. If you are not killing the mother
directly, if the operation is to save the child and there is the indirect effect of the
mother’s life being sacrificed, then I think the principle of double effect also applies.[181]

The principle of double effect is traceable to Thomas Aquinas in Summa Theologiae.

[182]
 It is, therefore, a Christian principle that may or may not be adopted by all of the
members of the medical community. There are even some who recommend its
abandonment.[183]

A commissioner went on to point out that unwanted children become wanted children
in practically all cases. Thus:

BISHOP BACANI: Madam President, may I comment on the unwanted babies. I was
reading this little book on a study of unwanted pregnancies and the interesting thing is
this: In practically all cases, unwanted pregnancies became wanted babies. In fact, there
were more unwanted pregnancies that became wanted babies than wanted
pregnancies in the beginning which turned sour. [184]

Again, this claim is belied by the fact that there are reportedly, hundreds of children that
are abandoned every year.[185] Apparently, abandonment and neglect are the most
common cases of abuse among children, based on statistics.[186] Moreover, statistics
shows that there is an average of 16% unwanted births, according to the 2008 National
Demographic and Health Survey.[187]

Third, a generalized statement that life begins at fertilization of the ovum

misunderstands the present science relating to the reproduction process.

Reproduction is a complex process whose features we need not tackle absent an actual
controversy.

Framing the issue as an issue of right to life or the right to protection of the unborn from
conception presupposes a prior conclusive scientific determination of the point when
life commenced. It presupposes a conclusive finding as to the beginning of the existence
of the unborn.

The court cannot declare that life begins at fertilization on the basis of a limited set of
sources that may not constitute the consensus among the scientific community.

For the medical bases for the contention that life begins at fertilization some of the
petitioners[188] cited medical textbooks and expert opinions. However, some
respondents and respondents-intervenors, also had their own scientific textbooks,
journals, and health organization statements to support their opposite contentions on
the difference between fertilization and conception, and the importance of viability and
clear establishment of pregnancy in determining life.[189]

We can infer from the existence of differing opinions on this issue that reproduction
involves a complex process.  Each part of this process provides a viable avenue for
contention on the issue of life.

The reproductive process is not always characterized by continuity and spontaneity

from fertilization to birth.

Fertilization happens when a single sperm penetrates the ovum or the egg.[190] The body
has a mechanism that prevents “polyspermy” or more than one sperm from penetrating
the egg.[191] Failure of this mechanism may cause issues on the viability of the fertilized
egg.[192]

Fertilization is possible only as long as both the sperm and the ova remain alive.
[193]
 Sperm have a lifespan of about three to five days inside a woman’s body,[194] while an
ovum remains capable of fertilization only about a few hours to a day after ovulation.
[195]
 This means that fertilization can happen only within that specific period of time. No
fertilization within this specific period means that both cells will disintegrate and die.

A fertilized egg stays in the fallopian tube for about three to four days.[196] It undergoes
several cell divisions.[197] It reaches the uterus usually in its 16- or 32-cell state.[198] At this
point, each cell resulting from the divisions is “totipotent” or may be capable of
developing into an individual.[199]
A fertilized egg may enter the uterus to undergo further cell division, until it becomes
what is known as a blastocyst, at which stage the cells lose their totipotentiality and
start to differentiate.[200] The fertilized egg may also remain in the fallopian tube or
proceed to other organs in the abdomen to undergo the same process.

About a week from ovulation, the fertilized egg starts to implant itself into the
uterus[201] or fallopian tube/other abdominal organs to develop an embryo. The latter
case is called ectopic pregnancy. When this happens, the embryo is not viable and must
be surgically removed to prevent maternal hemorrhage.[202] There are times when no
surgical removal is necessary because of spontaneous abortion.[203]

Around the time that the blastocyst starts embedding itself into the uterus, the
hormone, chorionic gonadotropin, is secreted.[204] This hormone is detectable in the
mother’s blood and urine.[205] Pregnancy is usually determined by detecting its presence.
[206]
 Thus, pregnancy is detected only after several days from fertilization.

Studies suggest that fertilization does not always proceed to a detectable pregnancy.
[207]
  Fertilization can become undetected because the fertilized ovum becomes wastage
prior to a finding of pregnancy.[208]

Every instance of cell division or differentiation is crucial in the reproductive process.

Each step is a possible point of error. An error, especially when it involves the genes, is a
possible cause for termination of the reproductive process.[209]

It is during the first week after fertilization that the greatest losses appear to occur.[210] A
review of literature on the fate of the fertilized egg in the womb estimates that about or
at least 50% of fertilized eggs are wasted or “do[es] not produce a viable offspring.”[211]

Wastage happens for different and natural reasons, among which are delayed or
erroneous implantation and chromosomal or genetic abnormalities.[212] Apparently, a
delayed implantation of a fertilized egg into the uterus, usually more than 12 days from
fertilization, may reduce or eliminate the chance that pregnancy will proceed.[213] It is
suggested that delayed implantation may be caused by delayed production or relatively
low concentration of the chorionic gonadotropin hormone which leads to the
degeneration of the corpus luteum.[214] The corpus luteum produces hormones that are
essential to the maintenance of pregnancy especially during the first months.[215] These
hormones are responsible for the thickening of the uterine muscles and the inhibition of
uterine motility that will prevent the expulsion of the fetus from the womb.[216]

The huge percentage of losses of pre-implantation zygote provides basis for the
argument that viability is a factor to consider in determining the commencement of life.
These losses are not generally regarded as deaths of loved ones, perhaps because it
occurs naturally and without the knowledge of the woman.

Hence, some[217] put greater emphasis on the importance of implantation on this issue

than fertilization.

This value is shared by others including the American College of Obstetricians and
Gynecologists, Code of Federal Regulations, and British Medical Association, among
others.[218]

The reproductive process may also show that a fertilized egg is different from what it
may become after individuation or cell specialization.

One argument against the belief that human existence begins at fertilization emphasizes
the totipotency of the pre-implantation zygote.

David DeGrazia, for example, argues that while fertilization is necessary for a person’s
existence, it is not sufficient to consider it as a person.[219] At most, the zygote is only a
precursor of a person.[220] It was stressed that several days after fertilization, a zygote is
not yet uniquely differentiated.[221] Hence, it can still divide into multiple human beings
or fuse with other zygotes to produce a chimera.[222] This mere possibility, according to
DeGrazia belies the position that a zygote is identical with the individual or individuals
that result from it.[223] DeGrazia states:

Consider the zygote my parents produced in 1961, leading to my birth in 1962. I am not
an identical twin. But that zygote could have split spontaneously, resulting in identical
twins. If it had, presumably I would not have existed, because it is implausible to identify
me with either of the twins in that counterfactual scenario. If that is right, then the
existence of the zygote my parents produced was not sufficient for my existence, from
which it follows that I am not numerically identical to that zygote. The very possibility of
twinning belies the claim that we originated at conception.[224]

Further, as argued by DeGrazia, the mere fact that the cells are still subject to
differentiation or individuation “belies the claim that we originated at
conception.”[225] Imputing moral or human status to an undifferentiated zygote means
that a human (in the form of a zygote) dies every time a zygote multiplies to form two
individuals.[226] DeGrazia doubts that many would accept the imagined implications of
giving full moral status to a fertilized ovum: 1) Multiple pregnancy is a cause for
mourning because essentially, a life is given up to produce at least two others; 2) There
should be reason to support investments in research for the prevention of multiple
pregnancies.[227]

DeGrazia characterizes a zygote as a single cell or “colony of cells”[228] whose functions

are not yet wholly integrated, unlike in a human being.[229]

It was also emphasized that the potential to undergo a process that would eventually
lead to being a full human being is not equivalent to being a full human being.
[230]
 Advancements in technology point to the possibility of cloning from cells other than
the sperm and the egg. Yet, this does not elevate the status of each cell as in itself a full
human being.[231] Thus:

Clearly, the single-cell zygote has the potential to develop in such a way that eventually
produces one of us. (Note: I do not say that the single-cell zygote has the potential
to become one of us – a statement that would imply numerical identity.) But the
importance of this potential is dubious. Now that we know that mammals can be cloned
from somatic cells – bodily cells other than sperm, eggs, and their stem-cell precursors –
we know that, in principle, each of millions of cells in your body has the potential to
develop into a full human organism. Surely this confers no particular moral status on
your many individual cells; nor does it suggest that each cell is one of us. Once again, a
full complement of DNA is not enough to make one of us.[232]

The argument that the use of ordinary body cells does not naturally lead to birth,
according to DeGrazia, finds little weight when statistics of pre-implantation wastage is
considered.[233] Statistics does not support the view that fertilization naturally leads to
birth.[234] A fertilized egg still has to undergo several processes and meet certain
conditions before it results to implantation or birth.

Further, there are policy dilemmas resulting from the court’s premature determination
of life’s beginnings.

A corollary of the view that life begins at fertilization is that anything that kills or
destroys the fertilized egg is “abortive.”

The beginning of life is a question which can be most competently addressed by

scientists or ethicists. A Supreme Court declaration of a scientific truth amidst lack of
consensus among members of the proper community is dangerous in many contexts.
One example is the occurrence of ectopic pregnancy.

Ectopic pregnancy occurs when the fertilized egg implants into parts or organs other
than the uterus. [235] Ectopic pregnancy usually occurs in the fallopian tube.[236] Women
who experience ectopic pregnancy must cause the removal of the developing embryo or
she risks internal bleeding and death.[237]

Ectopic pregnancy can be treated using drugs or surgery depending on the size of the
embryo and the status of the fallopian tube.[238] Smaller pregnancy and the inexistence
of tubal rupture allow treatment through medications.[239] Medications will stop
pregnancy growth without the need for removal of the fallopian tube.[240]

However, there are instances that necessitate surgical removal of the pregnancy,
including the fallopian tube, to prevent harm to the woman.[241]

In any case, creating an all encompassing definition of life’s beginnings to “equalize” the
protection between the “unborn” and the mother creates a moral dilemma among the
people whether to save the mother from the risk of life-threatening complications or
whether to “save” a fertilized ovum that has no chance of surviving. This is most
especially applicable among those involved such as the mother and the health care
professionals.

Following a declaration in the ponencia that life begins at fertilization, the removal of a
fertilized egg in an ectopic pregnancy must necessarily constitute taking of life. All
persons involved in such removal must necessarily kill a fertilized ovum. A mother or a
health care professional who chooses to remove the embryo to save the mother risks
being charged or stigmatized for that conduct.

Similarly, such all encompassing declaration is dangerous especially when applied to

fertilizations resulting from sexual assault or rape.
There are conflicting versions of the mechanisms of action of emergency conception.
There are publications, for example, that find that a single dose of the most widely used
emergency contraceptive, levonorgestrel (LNG) taken within five days of unprotected
sex would protect a female from unwanted pregnancy by delaying or inhibiting
ovulation.[242] Petitioners, on the other hand, believe that emergency contraceptives also
prevent the implantation of a fertilized ovum into the uterus. They also cite
distinguished scientific journals such as the Annals of Pharmacotherapy.[243]

This lack of public consensus coupled with an official declaration from this court that life
begins at fertilization could immobilize a rape victim from immediately obtaining the
necessary emergency medication should she wish to prevent the unwanted pregnancy
while there is still time. It may create ethical pressure on the victim to assume the
repercussions of acts that are not her fault.

Insisting on a determination of when life begins also unnecessarily burdens the ethical
dilemma for assisted reproductive technologies.

Assisted reproductive technologies (ART) refer to “all fertility treatments in which both
eggs and sperm are handled. In general, ART procedures involve surgically removing
eggs from a woman’s ovaries, combining them with sperm in the laboratory, and
returning them to the woman’s body or donating them to another woman. They do NOT
include treatments in which only sperm are handled (i.e. intrauterine—or artificial—
insemination) or procedures in which a woman takes medicine only to stimulate egg
production without the intention of having eggs retrieved.”[244] Others include among
the ART procedures intrauterine insemination, in vitro fertilization, sperm donation, egg
donation, and surrogacy or gestational carrier.[245] I focus on in vitro fertilization.

In in vitro fertilization, the ovaries are stimulated to produce multiple eggs.[246] The

produced eggs are retrieved from the woman’s body for insemination.[247] A sufficient
number of healthy embryos are transferred to the woman’s womb after fertilization.
[248]
 Multiple embryos are sometimes transferred to the womb to increase the chances
of pregnancy, in which case, multiple births are likely to happen.[249] Unused healthy
embryos may be frozen for later use or for donation.[250] Disposal of embryos is also an
option for some.[251]

The ethical dilemma arises with respect to the unused embryos. A conflict of interest is
created between the fate of the mother and the fate of the embryos. If life begins at
fertilization, disposal of surplus embryos means disposal of several human lives. At the
same time, a mother or anyone else cannot be forced to conceive a child or donate an
embryo to another.

I believe that when presented with a like but actual case, it should be the parents who
should make the choice whether to use the surplus embryos or to dispose it if allowed
by law.

When exactly life begins is not in issue in this case.

We should avoid this issue because this court lacks the competence to determine
scientific, ethical or philosophical truths. Just as it should not easily accept purported
truths propounded by parties to support their causes for or against reproductive health,
this court should also not so easily dismiss views as “devoid of any legal or scientific
mooring” [252] or having been “conceptualized only for convenience by those who had
only population control in mind.”[253]

The ponencia emphasizes this court’s statement in Continental Steel v. Hon. Accredited
Voluntary Arbiter Allan S. Montano that “a child inside the womb already has life”.
[254]
 But Continental Steel  involves the issue of whether respondent in that case was
entitled to death and accident insurance claim after his child had been prematurely
delivered at 38 weeks and immediately died.

At 38 weeks, viability is less an issue compared to a fertilized egg. A fertilized egg will
still have to successfully undergo several processes, cell divisions, implantations, and
differentiations for a chance at even developing recognizable fetal tissues. This court
said:

Even a child inside the womb already has life. No less than the Constitution recognizes
the life of the unborn from conception, that the State must protect equally with the life
of the mother. If the unborn already has life, then the cessation thereof even prior to
the child being delivered, qualifies as death.[255] (Emphasis supplied)

This court was not making a declaration that a fertilized egg already constitutes a child
inside a womb and a declaration as to when life begins. Applied in the context of that
case, this court was merely saying that the 38-week, prematurely born child was already
a child for purposes of the award of the death and accident insurance claim under the
Collective Bargaining Agreement.

IV
Section 9 and Abortifacient Effects

The petitions, having alleged no actual controversy, also furnish no justification to strike
down any portion of Section 9 of Republic Act No. 10354 as unconstitutional.  This
provides:

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies.
– The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family
planning products and supplies. The Philippine National Drug Formulary System
(PNDFS) shall be observed in selecting drugs including family planning supplies that will
be included or removed from the Essential Drugs List (EDL) in accordance with existing
practice and in consultation with reputable medical associations in the Philippines. For
the purpose of this Act, any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available
on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals: Provided, further, That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent. (Emphasis supplied)
Petitioners argue that the law violates the right to health because allowing general
access to contraceptives by including them in the national drug formulary and in the
supplies of national hospitals means that the citizens are being exposed to several
health risks such as different types of cancer, thromboembolytic events, myocardial
infarction, and stroke, among others.

Petitioners point to no specific drug or contraceptive. They produce medical journals

which tend to support their justification and ask this court to accept them as gospel
truth.  On the other hand, respondents also show journals that support their claims.

The petitioners misread this provision.

The law specifically grants the Food and Drug Administration (FDA) with the
competence to determine the scientific validity of the allegations of the petitioners. The
FDA is mandated to examine each and every drug, contraceptive or technology vis-a-vis
the claims made for or against their inclusion.

I agree with the ponencia in withholding any blanket pronouncement of any

contraceptive absent the exercise of the FDA of its functions under this provision. The
FDA is mandated to ensure the safety and quality of drugs released to the public.[256]

Generalizations and exaggerated claims are symptomatic of anguished advocacies. The

angst that accompany desperate attempts to convince often push well-meaning
advocates to magnify fears that go beyond the reasonable.

The argument that drugs that may be abused should not be made available to the public
is perhaps more dangerous to public health than a total ban on contraceptives. It is a
proposed policy that misunderstands the effect of any kind of drug on the human body.
It is, thus, arbitrary and without reason.

Drugs aim to affect our bodily processes to achieve a desired outcome.[257] They work by
targeting and interacting with cell receptors, enzymes and/or other substances in our
body so that the desired change in our chemical processes and/or physiological
functions can be effected.[258]

However, our bodies are complex systems. Targeted receptors and/or enzymes may
exist in non-target areas.[259] They may have structural similarities with non-target
receptors and/or enzymes. Thus, while drugs in general are designed for a specific
purpose, the complexities of our systems allow for a relatively generalized effect. There
are unintended effects that are often called the “side effects.”[260] This is a property that
is not exclusive to contraceptive drugs. It is a property of drugs in general.

Aspirin, for example, is advisable for thromboembolic disorders, stroke or for the
prevention of cerebrovascular events.[261] Abusing the use of aspirin, however, may
cause gastrointestinal bleeding. [262]

Aldomet is a drug usually taken to relieve hypertension.[263] When abused, its reported

side effects include maladjustments affecting the nervous system, blood, and the liver.
Among the reported reactions are sedation, headache, psychic disturbances, hepatitis,
and hemolytic anemia.[264]

Even drinking too much water may cause hyponatremia, which is the low sodium
concentration in the plasma.[265]

Side effects are expected with every drug from the weakest to the most potent. Their
prescriptions are trade-offs between all the benefits and risks associated with it.  Every
drug should be taken to address the ailment but in a way that minimizes the risk. This is
usually why there are proper dosages and time periods to take medicines. This is also
why some medicines are not dispensed without the proper prescription.

Several drugs are not prescribed when there is pregnancy because of the fetal risks
associated with them. Among these are Xenical (orlistat) used as a nutrition pill, Advil
and any kind of Ibuprofen (during the third trimester) used to manage pain, Testim
(testosteron) given for endocrine disorders, Flagyl (metronidazole) to manage infection,
Crestor (rosuvastatin) to manage cholesterol, Vistaril (hydroxyzine) usually given for
allergic reactions, and many more.[266]

The use of these drugs is appropriately limited so that they cannot have the effect or be
used as abortifacients.  This does not mean, however, that they are, per se,
abortifacients.

The policy embedded in the law is that the proper use of contraceptives will prevent
unwanted pregnancy and, therefore, also prevent complications related to pregnancy
and delivery.[267] The risks of its usage, when proper and guided, can be relatively low
compared to its benefits.[268] More specifically, the FDA is most competent in examining
the scientific and medical basis of the beneficial claims and risks of each and every
contraceptive. Drugs may or may not be included in the Essential Drugs List, based on
the FDA’s findings. It is not for this court to jump to conclusions on the basis of the ad
hoc presentations of medical journals from the parties.  This finding of fact should be
left to the proper agency. There is an indefinite scope of possible scenarios precisely
because there was no actual case or controversy brought before this court. If applying
the law to even one of these possibilities may render it constitutional, then we should
not declare it as unconstitutional.  The doctrine on the presumption of constitutionality
must prevail when there is no factual basis to invalidate the law.[269]

Only safe and effective medicines are included in the drug formulary. 

The inclusion of contraceptives in the national drug formulary is not new. The Philippine
Drug Formulary: Essential Medicines List, Volume 7, of 2008 already listed it under
“Hormones and Hormone Antagonists.”[270]

Contraceptives are included, following five pillars designed to make available affordable,
safe, and effective drugs to the public. These pillars are: (1) “the assurance of the safety,
efficacy and usefulness of pharmaceutical products through quality control;” (2) “the
promotion of the rational use of drugs by both the health professionals and the general
public;” (3) “the development of self-reliance in the local pharmaceutical industry;” (4)
“[t]he tailored or targeted procurement of drugs by government with the objective of
making available to its own clientele, particularly the lower-income sectors of the
society, the best drugs at the lowest possible cost;” and (5) “people empowerment.”[271]

One of the steps for inclusion in the drug formulary is to ensure that the drug is of
“acceptable safety, proven efficacy, quality, and purity”.[272] Ensuring that health
products are safe, efficient, pure, and of quality is a function of the Food and Drug
Administration.[273] Moreover, Republic Act No. 4729 requires that contraceptive drugs
and devices cannot be lawfully dispensed without proper medical prescription.

V
Conscientious Objector

The ponencia proposes to declare the provision relating to the mandatory referral of a
conscientious objector as unconstitutional because it violates the right to religion.  I also
disagree.

The sections involved provides:

SEC. 7.  Access to Family Planning – All accredited public health facilities shall provide a
full range of modern family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and
marginalized couples having infertility issues who desire to have children: Provided, That
family planning services shall likewise be extended by private health facilities to paying
patients with the option to grant free care and services to indigents, except in the case
of non-maternity specialty hospitals and hospitals owned and operated by a religious
group but they have the option to provide such full range of modern family planning
methods: Provided further, That these hospitals shall immediately refer the person
seeking such care and services to another health facility which is conveniently
accessible:  Provided finally, That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344.

SEC. 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(3) Refuse to extend quality health care services and information on account of the
person’s marital status, gender, age, religious convictions, personal circumstances, or
nature of work: Provided, That the conscientious objection of a health care service
provider based on his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking such care and
services to another health care service provider within the same facility or one which
is conveniently accessible: Provided, further, That the person is not in an emergency
condition or serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospitals and medical clinics to administer appropriate initial medical
treatment and support in emergency and serious cases[.] (Emphasis supplied)

The patient’s rights

Doctors routinely take an oath implying that the primordial consideration in their
services is the welfare of their patients.  The form of the Physician’s Oath adopted by
the World Medical Association is what is now known as the Declaration of Geneva, to
wit:

At the time of being admitted as a member of the medical profession:

I solemnly pledge to consecrate my life to the service of humanity;

I will give to my teachers the respect and gratitude that is their due;

I will practice my profession with conscience and dignity;

The health of my patient will be my first consideration; 

I will respect the secrets that are confided in me, even after the patient has died;

I will maintain by all means in my power, the honor and the noble traditions of the
medical profession;

My colleagues will be my sisters and brothers;

I will not permit considerations of age, disease or disability, creed, ethnic origin,
gender, nationality, political affiliation, race, sexual orientation, social standing or any
other factor to intervene between my duty and my patient;

I will maintain the utmost respect for human life;

I will not use my medical knowledge to violate human rights and civil liberties, even
under threat;

I make these promises solemnly, freely and upon my honor.[274] (Emphasis supplied)

Many of those who specialize in the ethics of the health profession emphasize the
possibility of a health service provider inordinately abusing conscientious objection over
the welfare of the patient.  Thus,

Physicians’ rights to refuse to participate in medical procedures that offend their

conscience may be incompatible with patients’ rights to receive lawful, medically
indicated treatment.  Historically, the goal of medicine has been to provide care to the
sick. The World Medical Association’s modern variant of the Hippocratic Oath, the
Declaration of Geneva, inspires the graduating physician to pledge that, “The health of
my patient will be my first consideration”.  For many who enter medicine, the
commitment to assist their fellow human beings and pursue a path of personal salvation
through this professional calling is religiously inspired.  A conflict of interest can arise if
the physician’s religious or other conscientious convictions are in tension with medically
indicated procedures.  The obvious case is therapeutic abortion, but analogous cases
include contraceptive sterilization and withdrawal of life support from otherwise viable
patients.  Physicians who give priority to their own moral and spiritual convictions over
their patients’ need and desire for medically indicated care face a conflict that needs
resolution.

The ethical conflict can be avoided through mutual accommodation; physicians have the
right to decide whom to treat, and patients have the right to decide from whom they
will receive care.  Physicians do not have the same ethical duties to nonpatients as to
patients except in emergency circumstances.  In all other circumstances, physicians are
at liberty to choose those for whom they will accept the responsibility of care.  If there
are services they will not perform, physicians should make the fact known to patients
for whom they have accepted responsibility.  Doing so not only saves patients the
distress of seeking those services and being turned down, it also saves physicians from
the dilemma of unfulfilled responsibilities to those whose care they have agreed to
undertake. This arrangement is well understood in medicine; physicians who notify
prospective patients that they are, for instance, pediatricians, will not be asked to treat
those requiring geriatric care, and geriatricians who do not have to accept patients
seeking pediatric services. More explicit disclosure is required, of course, when
prospective patients may reasonably expect that care will be available from the
specialists they approach. Obstetrician-gynecologies who will not participate in abortion
procedures must make that fact clear before forming patient-physician
relationships.”[275]

If the first and primordial consideration is the health of her or his patient, then the
beliefs of the service provider even though founded on faith must accommodate the
patient’s right to information. As stated in the Code of Ethics of the Philippine Medical
Association:

ARTICLE II
DUTIES OF PHYSICIANS TO THEIR PATIENTS

Section 5. A physician should exercise good faith and honesty in expressing opinion/s
as to the diagnosis, prognosis, and treatment of a case under his/her care. A physician
shall respect the right of the patient to refuse medical treatment. Timely notice of the
worsening of the disease should be given to the patient and/or family. A physician shall
not conceal nor exaggerate the patient’s conditions except when it is to the latter’s best
interest. A physician shall obtain from the patient a voluntary informed consent. In
case of unconsciousness or in a state of mental deficiency the informed consent may be
given by a spouse or immediate relatives and in the absence of both, by the party
authorized by an advanced directive of the patient. Informed consent in the case of
minor should be given by the parents or guardian, members of the immediate family
that are of legal age. (Emphasis supplied)

If a health care service provider’s religious belief does not allow a certain method of
family planning, then that provider may possibly withhold such information from the
patient. In doing so, the patient is unable to give voluntary informed consent to all
possible procedures that are necessary for her or his care.

The law, in sections 17 and  23 allow accommodation for full care of the patient by
requiring referral.  The patient that seeks health care service from a provider should be
able to put his or her trust on the provider that he or she would be referred to the best
possible option. There is nothing in the law which prevents the referring health care
provider from making known the basis of his or her conscientious objection to an
available procedure which is otherwise scientifically and medically safe and effective.

Between the doctor or health care provider on the one hand and the patient on the
other, it is the patient’s welfare and beliefs which should be primordial.  It is the patient
that needs the care, and the doctor or health care provider should provide that care in a
professional manner.

While providers have a right to their moral beliefs, the right does not allow health-care
providers to violate their professional and legal obligations to the patient. Policies on
health-care provider refusals should be carefully crafted to maximize the rights of
individuals to their beliefs without extending this “protection” so far that it prevents
patients from getting the medical care or information they need.[276]

The holding of the majority which declares the mandatory referral systems in Section
17 and Section 23, paragraph (a) (3) as unconstitutional on the basis of the right of
religion of the doctor or health care provider implicitly imposes a religious belief on
the patient.

It is in this context that many experts say that:

Religious initiatives to propose, legislate, and enforce laws that protect denial of care or
assistance to patients, (almost invariably women in need), and bar their right of access
to lawful health services, are abuses of conscientious objection clauses that aggravate
public divisiveness and bring unjustified criticism toward more mainstream religious
beliefs. Physicians who abuse the right to conscientious objection and fail to refer
patients to non-objecting colleagues are not fulfilling their profession’s covenant with
society.[277]

We must not assume that situations involving the duty to refer cover information or
services that may be objectionable only to a specific religious group. Neither can we
assume, for example, that the situation would always involve an extreme case such that
a patient would seek an abortion.

There are, in fact, many reasons why a patient would seek information or services from
a health professional. To be sure, when we speak of health care services and
information under Section 23(3) of the law, we refer to a “full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being.”[278]

Considering that the law is yet to be implemented, there are no facts from which this
court can base its ruling on the provision. We cannot and must not speculate.

Conscientious objection and religious objection

There is a difference between objections based on one’s conscience and those based on
one’s religion. Conscience appears to be the broader category. Objections based on
conscience can be unique to the individual’s determination of what is right or wrong
based on ethics or religion. Objections based on religion, on the other hand, imply a set
of beliefs that are canonical to an institution or a movement considered as a religion.
Others share religious belief. Conscientious objection may also include those whose
bases are unique only to the person claiming the exception. One’s conscience may be
shaped by cultural factors other than religion. It is clear that a conscientious objector
provision whose coverage is too broad will allow too many to raise exception and
effectively undermine the purpose sought by the law.[279]

The duty to refer is also found in Section 7 of the law:

SEC. 7. Access to Family Planning. – All accredited public health facilities shall provide a
full range of modern family planning methods, which shall also include medical
consultations, supplies and necessary and reasonable procedures for poor and marginal
couples having infertility issues who desire to have children: Provided, That family
planning services shall likewise be extended by private health facilities to paying
patients with the option to grant free care and services to indigents, except in the case
of non-maternity specialty hospitals and hospitals owned and operated by a religious
group, but they have the option to provide such full range of modern family planning
methods: Provided, further, That these hospitals shall immediately refer the person
seeking such care and services to another health facility which is conveniently
accessible: Provided, finally, That the person is not in an emergency condition or serious
case as defined in Republic Act No. 8344.

x x x x (Emphasis supplied)

The same considerations for individual health practitioners should apply to private
health institutions. Private health institutions are duty-bound to prioritize the patient’s
welfare and health needs.

Requirements of a challenge based on religion

The constitutional provision invoked by petitioners provides:

Section 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.[280]

The provision contains two parts.  The first part is the non-establishment clause.[281]  This
contains a proscription against the direct or indirect state sponsorship of a religion and
is closely related to another fundamental tenet in the Constitution, which provides:

Section 6. The separation of Church and State shall be inviolable.[282]

The second part is the free exercise of religion clause.[283] The protection to “religious
profession and worship” is absolute when it comes to one’s belief or opinion. The
balance between compelling state interests and the religious interest must, however, be
struck when the “profession and worship” are expressed in conduct which affect other
individuals, the community or the state. Religious conduct or omissions on the basis of
religious faiths are not absolutely protected.

In Iglesia Ni Cristo v. Court of Appeals,[284] this court reiterated the rule that:

x x x the exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty-
bound to prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare. A laissez faire policy on the exercise of religion
can be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men
were caused by irreconcilable religious differences.[285]

Then in Estrada v. Escritor,[286] this court clarified:

Although our constitutional history and interpretation mandate benevolent neutrality,

benevolent neutrality does not mean that the Court ought to grant exemptions every
time a free exercise claim comes before it. But it does mean that the Court will not look
with hostility or act indifferently towards religious beliefs and practices and that it will
strive to accommodate them when it can within flexible constitutional limits; it does
mean that the Court will not simply dismiss a claim under the Free Exercise Clause
because the conduct in question offends a law or the orthodox view for this precisely is
the protection afforded by the religion clauses of the Constitution, i.e., that in the
absence of legislation granting exemption from a law of general applicability, the Court
can carve out an exception when the religion clauses justify it. While the Court cannot
adopt a doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the
Court can set a doctrine on the ideal towards which religious clause jurisprudence
should be directed. We here lay down that doctrine that in Philippine jurisdiction, we
adopt that benevolent neutrality approach not only because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad
from which the Court should take off in interpreting religion clause cases. The ideal
towards which this approach is directed is the protection of religious liberty ‘not only for
a minority, however small – not only for a majority, however large – but for each of us’
to the greatest extent possible within flexible constitutional limits.[287]

The same case also cited the “Lemon test” which states the rules in determining the
constitutionality of laws challenged for violating the non-establishment of religion
clause:

First, the statute must have a secular legislative purpose; second, its primary or principal
effect must be one that neither advances nor inhibits religion; x x x finally, the statute
must not foster ‘an excessive entanglement with religion.[288]

However, the application of these standards first requires the existence of an actual
case involving (1) a specific conduct (2) believed to be related to profession or worship
(3) in a specific religion.

The basis for invoking the right to religion is not always clear. For instance, there is no
single definition of religion.

The common dictionary meaning is that it is “an organized system of beliefs,

ceremonies, and rules used to worship a god or a group of gods.”[289] Another dictionary
meaning is that “religion may be defined broadly as the human quest for, experience of,
and response to the holy and sacred.”[290] An author in a journal on ethics asserts that
“religion is the effective desire to be in right relations to the power manifesting itself in
the universe.”[291]

In Aglipay v. Ruiz,[292] this court adopted a bias toward theistic beliefs when it defined
religion “as a profession of faith to an active power that binds and elevates man to his
Creator x x x.”[293] But there are beliefs commonly understood to be religious which are
non-theistic. Courts have grappled with the definition of a religion.[294]

But these could not be issues in this case because there are no actual facts upon which
we could base our adjudication.

None of the petitions allege the conduct claimed to be part of “profession or worship”.
None of the petitions point to how this specific conduct relates to a belief or teaching of
a religion. None of the petitions show how fundamental to the specific religious faith
such conduct is.

In other words, the petitions do not show a specific instance when conscientious
objection was availed of as a result of the exercise of a religion.  In this case, we are
asked to evaluate whether the provision that accommodates conscientious objectors
would, in the future, with unspecified facts, violate the constitutional provision on
religious exercise.

Thus, it is also not clear in the ponencia whether the provisions on referral by
conscientious objectors are declared unconstitutional for all religions or only for specific
ones. This is the natural result for speculative cases. This is dangerous constitutional
precedent. If the declaration is for all religions, then this might just result in a violation
of the non-establishment clause. A dominant majoritarian religion is now aided in
imposing its beliefs not only on patients but also on all those who have different faiths.

Conduct which purport to be religious practice and its relationship to the fundamental
tenets of that religion is a question of fact which cannot be part of our judicial notice.
Otherwise, we implicitly establish a religion or manifest a bias towards one in violation
of the clear and absolute separation between church and state.

Contraceptives and Religion

Even the proscription on the use of contraceptives may not clearly be a religious tenet. 
We do not have the competence to assume that it is so.

With respect to the Catholic faith, the comment-in-intervention of De Venecia, et al.

included a history on the Catholic Church’s changing and inconsistent position regarding
contraceptives, and the notion that every conjugal act must be for a procreative
purpose.

The intervenors asserted that the notion denouncing sex without procreative intent
cannot be found in the old or new testament. During the church’s existence in the first
few hundred years, the issue of the church was not on the purpose of the conjugal act
but on the specific methods for contraception as some were associated with witchcraft.
[295]
 The idea that requires the procreative purpose for the sexual act was not originally
Christian but borrowed from pagan Greek Stoics during the early second century:

As James Brundage has pointed out, the immediate source of influence on Christian
writers was the pagan Stoics, whose high ideals for morality challenged the Christians to
copy them or even do better. Natural law or the law of nature was the basis for these
ideals. The famous Stoic jurist Ulpian supplied to Christian writers their understanding of
natural law. For Ulpian, natural law consisted in the laws of nature that animals and
humans had in common. Among the domestic animals with which Ulpian was familiar,
the female accepted the male only when she was in heat. So it was the law of nature
for humans and animals alike that sexual intercourse should only take place for
breeding.[296] (Emphasis supplied)

The Catholic Church through Pope Paul VI later secretly created a Pontifical Commission
for the Study of Population, Family and Births to recommend whether modern
contraceptive methods could be permitted.[297] The commission’s final report concluded,
by two-third votes, that “no natural law proscribed non-reproductive sex and no
doctrinal, scientific, medical, social or other reason existed for the church to continue
prohibiting the use of modern birth control.”[298]

Despite these findings, two ultraconservative members issued a minority report arguing
that “the Vatican’s authority would be irreparably undermined if it abandoned a
position it had adopted hundreds of years earlier.”[299]

Consequently, Pope Paul VI issued Humanae Vitae reiterating Pope Pius XI’s 1930

encyclical Casti Connubii  on natural law’s proscription against sex without procreative
intent.[300] The commission’s creation and its reports were leaked to the public, resulting
in mass protests and defiance within the church.[301]

Intervenors quoted at length a detailed account of these events surrounding the Casti

Connubii and Humanae Vitae,  thus:

Nervous prelates in Rome felt that the pill was just an excuse to jettison the Vatican's
position on birth control, which was resented and under siege. The euphoria over new
freedoms was part of the social giddiness that characterized the 1960s, in the church as
in the secular world. It was a time of the sexual revolution, feminism, and new attitudes
toward authority. In this atmosphere, the papal pronouncements about natural law
were brought under closer scrutiny by natural reason, and they grew flimsier with every
look. There was great fear in the Curia of the Vatican that this mood would invade the
Council Pope John was assembling (as, in fact, it did). The whole matter of birth control
was considered especially endangered, and it would be fought over strenuously in two
Roman arenas, one open and one Secret. The former battle, carried on in the sessions
of the Vatican Council, reached a kind of stalemate in the conciliar decree on the
church in the modern world, Gaudiumet et Spes. The other battle, waged in secret by
the Pope's own special commission, led to that commission's stunning defeat by the
Pope's own encyclical Humanae Vitae.[302] (Emphasis supplied)

Humanae Vitae
That Pontifical Commission met five times, at first in the fall of 1963 - six men convening
at Louvain. The second meeting (like all subsequent ones) was in Rome, in the spring of
1964, attended by the thirteen men. The number was increased to fifteen for a meeting
that summer. Up to this point, no one had presumed to recommend altering the
church's teaching on contraception. Things changed at the fourth session, held in the
spring of 1965, when the size of the commission jumped up to fifty- eight, with five
women among the thirty-four lay members. An expert called in for consultation was
John T. Noonan, from Notre Dame in Indiana, whose study of the church's changing
positions on usury had won scholarly acclaim. He was working on a similar study of
changes in the prohibition of contraception - a book that would appear just as the
commission was disbanded. Noonan opened the members' eyes to the way that
noninfallible papal teaching can develop.

Another eye opener was the result of a questionnaire brought to Rome by the lay
couple Pat and Patty Crowley. They had long been active in the international Christian
Family Movement, and they had surveyed their members - devout Catholics all - on their
experience of the rhythm method of contraception. They found it far from natural- Since
a woman's period fluctuates with her health, anxieties, age, and other influences,
establishing the actual infertile period in any cycle required daily charting of her
temperature and close comparative reading of calendars - and even then the results
were not Sure. The most conscientious catholics, who followed this nervous procedure
with precision, found that it was not certain - which left them in great fear until the next
menstruation (which might not occur). And in this concentration on the wife's physical
conditions, her psychological patterns - of fondness, need, crises, travel - had to be
ignored or repressed. The comments of the couples surveyed made riveting reading in
the commission. A husband, a scholar, wrote:

Rhythm destroys the meaning of sex act; it turns it from a spontaneous expression of
spiritual and physical love into a mere bodily sexual relief; it makes me obsessed with
sex throughout the month; it seriously endangers my chastity; it has a noticeable effect
upon my disposition toward my wife and children; it makes necessary my complete
avoidance toward my wife for three weeks at a time. I have watched a magnificent
spiritual and physical union dissipate and, due to rhythm, turn into a tense and mutually
damaging relationship. Rhythm seems to be immoral and deeply unnatural. It seems to
be diabolical.

His wife gave her side of the story:

I find myself sullen and resentful of my husband when the time of sexual relations finally
arrives. I resent his necessarily guarded affection during the month and I find I cannot
respond suddenly. I find, also, that my subconscious and unguarded thoughts are
inevitably sexual and time consuming. All this in spite of a great intellectual and
emotional companionship and a generally beautiful marriage and home life.

The commission was hearing that rhythm made people obsessed with sex and its
mechanics while minority members at the Council were arguing that rhythm allows
people to escape the merely animal urges and enjoy the serenity of sexuality
transcended. The commission was also hearing from doctors that nature, of course,
provides women with their greatest sexual desire at just the fertile time that rhythm
marked off bounds.

The combined impact of Noonan's history and the Crowley's empirical findings made
the commission members - good Catholics all, chosen for their loyalty to the church -
look honestly at the "natural law" arguments against contraception and see, with a
shock, what flimsy reasoning they had accepted. Sex is for procreation, yes - but all
the time, at each and every act? Eating is for subsistence. But any food or drink beyond
that necessary for sheer subsistence is not considered mortally sinful. In fact, to reduce
to that animal compulsion would deny symbolic and spiritual meanings in shared meals -
the birthday party, the champagne victory dinner, the wine at Cana, the Eucharist itself.
Integrity of the act? Is it sinful to be nourished intravenously when that is called for?
Does that violate the integrity of the eating act? The more assembled members looked
at the inherited "wisdom" of the church, the more they saw the questionable roots from
which it grew - the fear and hatred of sex, the feeling that pleasure in it is a biological
bribe to guarantee the race's perpetuation, that any use of pleasure beyond that
purpose is shameful. This was not a view derived from scripture or from Christ, but
from Seneca and Augustine.

The commission members, even trained theologians and spiritual counselors who had
spent years expounding the church teachings, felt they were looking at reality for the
first time. A cultivated submission to the papacy had been, for them, a structure of
deceit, keeping them from honesty with themselves, letting them live within a lie. To
their shared surprise they found they were not only willing to entertain the idea of the
church's changing, but felt that it had to change on this matter, that the truth, once
seen, could no longer be denied. When the nineteen theologians on the commission,
convened for a separate vote, were asked whether church teaching could change on
contraception, twelve said yes, seven no (including John Ford, who had joined the
commission at this meeting).

This set off alarm bells in the Vatican. For the next meeting, the last and the longest,
from April to June of 1965, the members of the commission were demoted to "advisers"
(periti) and the commission itself was constituted of sixteen bishops brought in to issue
the final report. They would listen to those who had done the actual conferring, and
theirs would be the final verdict. Debate before them would be presided over by
Cardinal Ottaviani of the Holy Office. This bringing in the big guns would have cowed the
members in their first sessions. But things had gone too far for such intimidation now.
The Crowleys brought another survey with them to the showdown, this one of 3,000
Catholics - including 290 devout subscribers to the magazine St. Anthony's Messenger -
of whom 63 percent said that rhythm had harmed their marriage and 65 percent said
that it did not actually prevent conception, even when the right procedures were
followed exactly (even neurotically). Dr. Albert Gorres spoke of the self- censorship
Catholics had exercised over themselves - something the members recognized in their
lives when it was pointed out. The Jesuit priest Josef Fuchs, who had taught Casti
Connubii standards for twenty years, said he was withdrawing his moral textbook and
resigning his teaching post at the Gregorian University in Rome now that he could no
longer uphold what he was asked to profess. The vote of the theologians who were
presenting their findings to the bishops was now fifteen to four against the claim that
conception is intrinsically evil. The vote of the larger group was thirty to five.
Here was a perfect laboratory test of the idea that contraception is against nature, as
that can be perceived by natural reason alone. These people were all educated, even
expert. They were Catholics in good standing (they had been chosen on those grounds).
They had been conditioned all their lives to accept the church’s teaching - in fact they
had accepted it in the past. They of all people would entertain the official case with
open minds. They had no malice against church authorities - most of them had devoted
much (if not all) of their lives to working with them. Most had entered the project either
agreeing with the papal position or thinking that it was unlikely to change. Now they
found themselves agreeing that change was not only necessary but inevitable. They had
trouble imagining how they had ever thought otherwise. Cardinal Suenens explained
how they had been conditioned to have a double consciousness, to live a lie:

For years theologians have had to come up with arguments on behalf of a doctrine they
were not allowed to contradict. They had an obligation to defend the received doctrine,
but my guess is they already had many hesitations about it inside. As soon as the
question was opened up a little, a whole group of moralists arrived at the position
defended by the majority here. . . The bishops defended the classical position, but it was
imposed on them by authority. The bishops didn't study the pros and cons. The received
directives, they bowed to them, and they tried to explain them to their congregations.

As soon as people began to think independently about the matter, the whole structure
of deceit crumbled at the touch. The past position could not be sustained, even among
these people picked by the Vatican itself, much less among Catholics not as committed
as these were. And it was absurd to speak of the non-Catholic world as ever
recognizing this "natural law of natural reason."

The need to face the prospect of change was impressed on the people in the
commission by the arguments of the five theologians defending Casti Connubii. They
reduced their own case to absurdities. John Ford said that intercourse is not necessary
for marital love: "Conjugal love is above all spiritual (if the love is genuine) and it
requires no specific carnal gesture, much less its repetition in some determined
frequency." Ford also liked to say that, if the teaching on sexual activity only for
procreation were changed, people could rnasturbate with impunity. Dr. Gorres quoted
the Melchite Patriarch, Maximos IV, who said in the Council deliberations that priests
display a "celibate psychosis" in the area of sex. ***

The climactic vote of the commission - the one of the sixteen bishops - was nine to
three for changing the church's position on contraception, with three abstentions. An
agreement had been reached before the vote was taken to submit only one report for
the commission, but Cardinal Ottaviani and Father Ford, seeing how things were
going, had prepared a document of their own, which would later be misrepresented as
an official minority document. There was only one official document, the sole one voted
on by the bishops who had authority to report the body's findings. (Ottaviani was the
one who had brought in these officials, hoping to get the result he wanted. When he
failed to, he ignored his own device.)

The Ford “report”, drawn up with Germain Grisez, said that any change was
inconceivable. This was not because there were rational arguments against change: "If
we could bring forward arguments which are clear and cogent based on reason alone, it
would not be necessary for our Commission to exist, nor would the present state of
affairs exist in the church." No, the real reason to keep the teaching was that it was the
teaching: "The Church could not have erred though so many centuries, even through
one century, by imposing under serious obligations very grave burdens the name of
Jesus Christ, if Jesus Christ did not actually impose these burdens."  As a priest had put
it in earlier debate, if the church sent all those souls to hell, it must keep maintaining
that that is where they are.

This was not an argument that made sense, at this point, to the commission - to
bishops any more than to the theologians or lay experts. But it was the one argument
that, in the end, mattered to Paul VI. He took advantage of the so-called "minority
report" to say that he could not accept the commission's findings since there had been
disagreement with it. Nine of the twelve bishops, fifteen of the nineteen theologians,
and thirty of the thirty-five nonepiscopal members of the commission were not enough
for him. Votes on the decrees in the Council had not been unanimous either, but he did
not call them invalid for that reason. Paul's real concern was with the arguments that
Ottaviani brought to him after the report was submitted. He knew what was worrying
the Pope, and could play on that. F.X. Murphy had observed one thing about Paul's
behavior throughout the meetings of the Council:

The Pope was a man obviously torn by doubts, tormented by scruples, haunted by
thoughts of perfection, and above all dominated by an exaggerated concern - some
called it an obsession - about the prestige of his office as Pope. His remarks on this score
at times displayed an almost messianic fervor, a note missing in the more sedate
utterances of his predecessors. His innumerable statements on the subject were made
on almost every occasion, from casual week-day audiences of Sunday sermons from the
window of his apartment to the most solemn gatherings in season and out of season.
Since it was part of the strategy of the [conciliar] minority to accuse the majority of
disloyalty toward the Holy Father' Paul's constant harping-in inevitably caused the
majority to think that he perhaps did share these misgivings, at least to a certain extent.
It was noticed by students of Paul’s remarks that while he showed an open- mindedness
about almost any other subject, on the single theme of the papacy his mind remained
strangely closed to analysis.
Those words were written before Humanae Vitae was issued, but they explain the letter
entirely.

The commission members left their work convinced that the pope could no longer
uphold a discredited teaching. When the report was leaked to the press, Catholics
around the world took heart at the signs of change. So far from upsetting their faith,
as the Pope feared, it heartened them. What would unsettle their faith was what Paul
did next - issue Humanae Vitae, with its reiteration of Casti Connubii's ban: ('The
church, calling men back to the observance of the natural law, as interpreted by its
constant doctrine, teaches that each and every marriage act must remain open to the
transmission of life." Catholics responded with an unparalleled refusal to submit. Polls
registered an instant noncompliance with the encyclical. At a previously scheduled
Catholic festival of devout young Germans at Essen, a resolution that those attending
could not obey the encyclical passed through a crowd of four thousand with only ninety
opposing votes. A simultaneous poll among German Catholics at large found that 68
percent of them thought the Pope was wrong on contraception. Similar findings rolled
in from around the world.
What were bishops to do? The encyclical itself had ordered them to explain and enforce
the Pope’s decision, along with all priests:

Be the first to give, in the exercise of your ministry, the example of loyal internal and
external obedience to the teaching authority of the Church. . . it is of the utmost
importance, for peace, of consciences and for the unity of the Christian People, that in
the field of morals as well as in that of dogma, all should attend to the magisterium of
the Church, and all should speak the same language.

But for the first time in memory, bishop's statements, while showing respect for the
encyclical, told believers they could act apart from it if they felt bound by conscience
to do so. The assembly of bishops in the Netherlands put it most bluntly: "The
assembly considers that the encyclical's total rejection of contraceptive methods is not
convincing on the basis of the arguments put forward." other Episcopal panels were
more circumspect, but signaled that they would not consider those disobedient to the
encyclical to be separating themselves from the sacraments. The Belgian bishops put it
this way: "Someone, however, who is competent in the matter under consideration and
capable of forming a personal and well-founded judgment - which necessarily
presupposes a sufficient amount of knowledge - may, after serious examination before
God, come to other conclusions on certain points." In other words: do not treat the
Pope's words lightly, but follow your conscience after taking a serious look at them.
That was the position taken by bishops in the United States ("the norms of licit dissent
come into play"), Austria, Brazil, Czechoslovakia, Mexico, [] West Germany, Japan,
France, Scandinavia, and Switzerland. The Scandinavian statement was typical:

Should someone, however, for grave and carefully considered reasons, not feel able to
subscribe to the arguments of the encyclical, he is entitled, as has been constantly
acknowledged, to entertain other views than those put forward in a non-infallible
declaration of the Church. No one should, therefore, on account of such diverging
opinions along, be regarded as an inferior Catholic.

The Pope was stunned. He would spend the remaining ten years of his pontificate as if
sleepwalking, unable to understand what had happened to him, why such open dissent
was entertained at the very top of the episcopate. Four years after the publication
of Humanae Vitae, when the Pope looked "cautious, nervous, anxious, alarmed," he
deplored the defiance of church teaching in a sermon at Saint Peter's, and this was the
only explanation he could come up with for the defiance: "Through some crack in the
temple of God, the smoke of Satan has entered'" He was increasingly melancholy and
prone to tears. Had he opened that crack in the temple of God? Even as a nagging
suspicion this was a terrible burden to bear. It explains the atmosphere of darkening
tragedy that hung about his final years. He would not issue another encyclical in all
those ten years. He was a prisoner of the Vatican in a way that went beyond his
predecessors' confinement there. He was imprisoned in its structures of deceit.
Meanwhile, Father Ford, who had assisted his fellow Jesuit Gustave Martelet in drawing
up Humanae Vitae  under Cardinal Ottaviani's direction, went back to the seminary
where he had taught moral theology for years and found that the Jesuit seminarians
their refused to take his classes, since they knew from others in the Order what he had
done in Rome. As a result of what he considered his life's great coup, his teaching career
was over.[303] (Emphasis supplied)
Intervenors even alleged that as early as 1999, “nearly 80% of Catholics believed that a
person could be a good Catholic without obeying the church hierarchy’s teaching on
birth control.”[304] They, therefore, put in issue whether the views of petitioners who are
Catholics represent only a very small minority within the church.

We cannot make any judicial determination to declare the Catholic Church’s position
on contraceptives and sex.  This is not the forum to do so and there is no present
controversy—no contraceptive and no individual that has come concretely affected by
the law.

This court must avoid entering into unnecessary entanglements with religion. We are
apt to do this when, without proof, we assume the beliefs of one sect or group within
a church as definitive of their religion. We must not assume at the outset that there
might be homogeneity of belief and practice; otherwise, we contribute to the State’s
endorsement of various forms of fundamentalism. [305]

It is evident from the account quoted above giving the historical context of the
contraceptives controversy that the Catholic church may have several perspectives and
positions on the matter. If this is so, then any declaration of unconstitutionality on the
basis of the perceived weaknesses in the way conscientious objectors are
accommodated is premature.

VI
Family

There being no actual case or controversy, the petitions also do not provide justification
for this court to declare as unconstitutional Section 23(2)(i) of the RH Law on spousal
consent, and Section 7, paragraph 2 on parental consent. These provisions read:

SEC 23. Prohibited Acts.  – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

xxxx

(2) Refuse to perform legal and medically-safe reproductive health  procedures on  any
person of legal age on the ground of lack of consent or authorization of the following
persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement,
the decision of the one undergoing the procedure shall prevail; and

SEC. 7. Access to Family Planning – x x x

No person shall be denied information and access to family planning services, whether
natural or artificial: Provided, That minors will not be allowed access to modern
methods of family planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a miscarriage.
Spousal Consent

According to petitioners Millennium Saint Foundation, Inc., et al., “while both play equal
roles in procreation, the man or the husband is violated of his right of conjugal decisions
when it is the woman’s decision that will be followed whether to avail of contraceptives
or not.”[306]

Petitioners Couples for Christ Foundation, Inc., et al. argued that “the [reproductive
health] procedure does not involve only the body of the person undergoing the
procedure [as] it affects the future of the family (in terms of its size or even the
presence of children) as well as the relationship between spouses.”[307]

The ponencia agreed and discussed how “giving absolute authority to the spouse who
would undergo a procedure, and barring the other spouse from participating in the
decision would drive a wedge between the husband and wife, possibly result in bitter
animosity, and endanger the marriage and the family, all for the sake of reducing the
population.”[308] The ponencia cited the constitutional mandate of the state to defend
the “right of spouses to found a family x x x.”[309]

These provisions of Republic Act No. 10354 do not threaten nor violate any right, even
the right to family.

Section 23(a)(2)(i) applies to a specific situation: when there is

a disagreement  between married persons regarding the performance of a “legal and
medically-safe reproductive health procedure.”

The general rule encourages married persons to discuss and make a conjugal decision
on the matter. They are caught in a problem when they disagree. This agreement may
fester and cause problems within their family. The disagreement will not be created by
the RH Law. It will exist factually regardless of the law.  Section 23(a)(2)(i) of the law
becomes available to break this deadlock and privilege the decision of the spouse
undergoing the procedure.

This is logical since the reproductive health procedures involve the body, health and well
being of the one undergoing the procedure.

The marriage may be a social contract but is certainly not a talisman that removes the
possibility of power relationships. Married persons, especially the woman/wife, can still
suffer inequality. Married persons may still experience spousal abuse.

Generally, it will be the woman who will ask to undergo reproductive health
procedures.  The interpretation of the majority therefore affects her control over her
body. Rather than enhance the zones of autonomy of a person even in a married state,
the interpretation of the majority creates the woman’s body as a zone of contestation
that gives the upper hand to the husband.

The majority derives the right to a family from Article XV and reads it in isolation from all
the other provisions of the Constitution. In my view, these rights should be read in
relation to the other provisions.

Article XV reads:

The Family

Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family

and shall be protected by the State.

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions
and the demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development;

(3) The right of the family to a family living wage and income; and

(4) The right of families or family associations to participate in the planning and
implementation of policies and programs that affect them.

The ponencia cites Morfe v. Mutuc[310] on the protected zone of marital privacy. This
case is not in point.  It does not apply to a conflict between the spouses.  It applies in
declaring a zone of privacy of spouses vis-à-vis state action.

Citing Griswold v. Connecticut, the court said:

The Griswold case invalidated a Connecticut statute which made the use of

contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed ‘a relationship lying within the zone of privacy created by several fundamental
constitutional guarantees’. So it is likewise in our jurisdiction. 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. Ultimate 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 modern society has developed. All the forces of a
technological age – industrialization, urbanization, and organization – operate to narrow
the area of privacy and facilitate intrusions 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.’[311] (Emphasis supplied)

This is one view.  It did not take into consideration the state’s interest in ensuring
human rights and the fundamental equality of women and men.

The right to a family should be read in relation to several provisions in the Constitution
that guarantee the individual’s control over her or his own person.  Thus, Article III,
Section 1 of the Constitution states:

Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.

This due process clause implies and congeals a person’s right to life. This includes the
individual’s right to existence as well as her or his right to a quality of life of her or his
choosing.  The State is not to sanction a program or an act that deprives the individual
of her or his control over her or his life and body.  The “equal protection” clause in this
provision ensures that individuals, even those that enter into a married state, do not
coexist and suffer under conditions of marital inequality.

Article II elaborates on the positive obligation of the State to the right to life as
embodied in the due process clause in two sections.  Sections 9 and 11 provide:

Section 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through
policies that provide adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all.

Section 11. The State values the dignity of every human person and guarantees full
respect for human rights. (Emphasis supplied)

Section 14 of the same article also improves on the goal of equality of men and women. 
While section 1 provides for equal protection of the laws, this section creates a positive
duty on the State as follows:

Section 14.  The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men. (Emphasis supplied)

The fundamental equality of women and men, the promotion of an improved quality of
life, and the full respect for human rights do not exist when a spouse is guaranteed
control the other spouse’s decisions respecting the latter’s body.

The autonomy and importance of family should not be privileged over the privacy and
autonomy of a person.  Marriage is not bondage that subordinates the humanity of each
spouse.  No person should be deemed to concede her or his privacy rights and
autonomy upon getting married.[312]

By declaring Section 23(a)(2)(i) as unconstitutional, the majority interprets the privacy

and autonomy of the family as also providing insulation of patriarchal or sexist
practices from state scrutiny.[313] This is not what the Constitution intends.
Parental Consent

The ponencia and the majority declared Section 7 of Republic Act No. 10354
unconstitutional for violating the right to privacy as the provision dispensed with the
written parental consent for minors who are already parents or those who have had a
miscarriage to access modern methods of family planning. Justice Reyes in his
concurring and dissenting opinion is also of the view that Section 7 is violative of Article
II, Section 12 of the Constitution on the parents’ natural and primary right and duty to
nurture their children.

I disagree with both the ponencia and Justice Reyes’ views.

In declaring its unconstitutionality, the ponencia stated:

Equally deplorable is the debarment of parental consent in cases where the minor, who
would be undergoing a procedure, is already a parent or has had a miscarriage. x x x

xxxx

There can be no other interpretation of this provision except that when a minor is
already a parent or has had a miscarriage, the parents are excluded from the decision
making process of the minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because there is a need to
tame population growth.

xxxx

To insist on a rule that interferes with the right of parents to exercise parental control
over their minor-child or the right of the spouses to mutually decide on matters which
very well affect the very purpose of marriage, that is, the establishment of conjugal and
family life, would result in the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining
close family ties and violative of the recognition the State affords couples entering into
the special contract of marriage [that they act] as one unit in forming the foundation of
the family and society.[314]

Justice Reyes, in striking down the exception to the required written parental consent
for minors under Section 7, paragraph 2, also states:

[t]here exists no substantial distinction as between a minor who is already a parent or

has had a miscarriage. There is no cogent reason to require a written parental consent
for a minor who seeks access to modern family planning methods and dispense with
such requirement if the minor is already a parent or has had a miscarriage. Under the
Family Code, all minors, generally, regardless of his/her circumstances, are still covered
by the parental authority exercised by their parents. That a minor who is already a
parent or has had a miscarriage does not operate to divest his/her parents of their
parental authority; such circumstances do not emancipate a minor.[315]

The ponencia, however, clarified that access to information about family planning must
be differentiated from access to reproductive health methods.[316] Further, it said that
there must be an exception with respect to life-threatening cases. In which case, the
minor’s life must be safeguarded regardless of whether there is written parental
consent. [317]

This provision has an exceptional application – when minors are already parents or
when the minor has miscarried before. The proviso inserted by the legislature should be
presumed to be based on a well-founded policy consideration with regard to the
peculiar situation of minors who are already parents or those who have experienced
miscarriages. As I have stressed earlier, it has been the policy of the courts in this
jurisdiction to:

x x x avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid in the absence of a clear and unmistakable showing to
the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for the
acts of the other departments. The theory is that as the joint act of Congress and the
President of the Philippines, a law has been carefully studied and determined to be in
accordance with the fundamental law before it was finally enacted.[318]

Rather than assume homogenous choices of family relationships on the basis of a

speculative belief relating to “close family ties,” the better part of prudence and wisdom
from this Court would be to consider a more cosmopolitarian reality.  There are
traditional and non-traditional families. Many of these arrangements of family are the
result of free human choices that go through a gamut of emotional conflicts.  Teenage
pregnancy, like many other life defining events, do take their toll on family.  We cannot
speculate—for now—as to how families will deal with these stresses.  We cannot
speculate on why these pregnancies happen.

Those of us who have not and can never go through the actual experience of
miscarriage by a minor, those of us who cannot even imagine the pain and stresses of
teenage pregnancy, should not proceed to make blanket rules on what minors could do
in relation to their parents.  None of us can say that in all cases, all parents can be
understanding and extend sympathy for the minors that are legally under their care.
None of us can say that there are instances when parents would think that the only way
to prevent teenage pregnancy is a tongue lashing or corporeal punishment. We cannot
understand reality only from the eyes of how we want it to be.

Only when we are faced with an actual controversy and when we see the complications
of a real situation will we be able to understand and shape a narrowly tailored exception
to the current rule.  In the meantime, the wisdom of all the members of the House of
Representative, the Senate, and the President have determined that it would be best to
give the minor who is already a parent or has undergone a miscarriage all the leeway to
be able to secure all the reproductive health technologies to prevent her difficulties
from happening again.  We must stay our hand for now.

VII
Separation of Powers

Justice del Castillo is of the view that based on our power to “promulgate rules for the
protection and enforcement of constitutional rights” under Article VIII, Section 5(5) of
the Constitution, we have the power to issue directives to administrative bodies as to
“the proper rules” that they should promulgate in the exercise of the powers granted to
them.[319]

He cites Echegaray v. Secretary of Justice,[320] thus:

The 1987 Constitution molded an even stronger and more independent judiciary. Among

others,  it enhanced the rule making power of this Court. Its Section 5(5), Article VIII,
provides:

xxx xxx xxx

“Section 5. The Supreme Court shall have the following powers:

xxx xxx xxx 

(5) Promulgate rules concerning the protection and enforcement of constitutional

rights, pleading, practice and procedure in all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.”

The rule making power of this Court was expanded. This Court for the first time was
given the power to promulgate rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial bodies. x x x[321]

He believes that we have the power to approve or modify such rules or require them to
issue rules for the protection of constitutional rights. He states:

Viewed in light of the broad power of the Court to issue rules for the protection and
enforcement of constitutional rights, the power to disapprove the rules of procedure of
quasi-judicial bodies is significant in that it implies the power of the Court to look into
the sufficiency of such rules of procedure insofar as they adequately protect and
enforce constitutional right. Moreover, the power to disapprove the aforesaid rules of
procedure necessarily includes or implies the power to approve or modify such rules
or, on the one extreme, require that such rules of procedure be issued when necessary
to protect and enforce constitutional rights. In other words, within and between the
broader power to issue rules for the protection and enforcement of constitutional
rights and the narrower power to disapprove the rules of procedure of quasi-judicial
bodies, there exists penumbras of the power that the Court may exercise in order to
protect and enforce constitutional rights.

xxxx

Taken together [with Article VIII, Section 1 of the Constitution], the expanded
jurisdiction of the Court and the power to issue rules for the protection and
enforcement of constitutional rights provide the bases for the Court (1) to look into the
sufficiency of safeguards in the implementation of the RH Law insofar as it will adversely
affect the right to life of the unborn, and (2) to issue such orders as are necessary and
essential in order to protect and enforce the constitutional right to life of the unborn. x x
x[322] (Emphasis supplied)

For this reason, it is suggested that “x x x the Court x x x issue an order:

(1) directing the FDA to formulate the rules of procedure in the screening, evaluation
and approval of all contraceptives that will be used under the RH Law;
(2) the rules of procedure shall contain the following minimum requirements of due
process:
(a) publication, notice and hearing,
(b) the Solicitor General shall be mandated to represent the unborn and the
State’s interest in the protection of the life of the unborn,
(c) interested parties shall be allowed to intervene,
(d) the standard laid down in the Constitution, as adopted under the RH Law, as to
what constitute allowable contraceptives shall be strictly followed, i.e., those
which do not harm or destroy the life of the unborn from
conception/fertilization,
(e) in weighing the evidence, all reasonable doubts shall be resolved in favour of
the right to life of the unborn from conception/fertilization, and
(f) the other requirements of administrative due process, as summarized in Ang
Tibay, shall be complied with.

The FDA should be directed to submit these rules of procedure within 30 days from
receipt of the Court’s decision, for the Court’s appropriate action.[323]

The issue in Echegaray was whether the Supreme Court has jurisdiction to control the
execution and enforcement of its judgment. The discussion on the expanded powers of
the Supreme Court in Section 5(5) of Article VIII of the Constitution was made in this
context. It is not to be taken as justification for the Court to usurp powers vested upon
other departments. Thus, after this Court in that case said that “[t]he Court was x x x
granted for the first time the power to disapprove rules of procedure of special courts
and quasi-judicial bodies[,]” it continued with the statement:

x x x But most importantly, the 1987 Constitution took away the power of the Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In
fine, the power to promulgate rules of pleading, practice and procedure is no longer
shared by this Court with the Congress, more so with the Executive. If the manifest
intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is
inutile to urge, as public respondents do, that this Court has no jurisdiction to control
the process of execution of its decisions, a power conceded to it and which it has
exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of
this Court to control and supervise the implementation of its decision in the case at
bar. x x x[324] (Emphasis supplied)
This court’s power to “promulgate rules for the protection and enforcement of
constitutional rights” as stated in Article VIII, Section 5(5) of the Constitution must be
harmonized with the rest of the provision, which provides:

Section 5. The Supreme Court shall have the following powers:

xxxx

5. Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the under-privileged. Such rules shall prov 88211
258 Phil. 479

EN BANC

[ G.R. No. 88211, September 15, 1989 ]

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YNIGUEZ AND PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), REPRESENTED BY ITS PRESIDENT, CONRADO F. ESTRELLA, PETITIONERS,
VS. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDONEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, IN THEIR CAPACITY
AS SECRETARY OF FOREIGN AFFAIRS, EXECUTIVE SECRETARY, SECRETARY OF JUSTICE,
IMMIGRATION COMMISSIONER, SECRETARY OF NATIONAL DEFENSE AND CHIEF OF
STAFF, RESPECTIVELY, RESPONDENTS.

DECISION

CORTES, J.:

Before the Court is a controversy of grave national importance.  While ostensibly

only legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile.  In his
stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government.  Her ascension to and consolidation of power have not been
unchallenged.  The failed Manila Hotel coup in 1986 led by political leaders of Mr.
Marcos, the takeover of television station Channel 7 by rebel troops led by
Col. Canlas with the support of "Marcos loyalists" and the unsuccessful plot of the
Marcos spouses to surreptitiously return from Hawaii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar and
to the fanaticism and blind loyalty of their followers in the country.  The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency.  This did not,
however, stop bloody challenges to the government.  On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February Revolution, led a failed coup
that left scores of people, both combatants and civilians, dead.  There were several
other armed sorties of lesser significance, but the message they conveyed was the same
- a split in the ranks of the military establishment that threatened civilian supremacy
over the military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements in the military establishment and among rabid followers of Mr. Marcos.  There
were also the communist insurgency and the secessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists have
set up a parallel government of their own in the areas they effectively control while
the separatists are virtually free to move about in armed bands.  There has been no let
up in these groups' determination to wrest power from the government.  Not only
through resort to arms but also through the use of propaganda have
they been successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political.  The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated.  The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to
the Philippines to die.  But Mrs. Aquino, considering the dire consequences to the nation
of his return at a time when the stability of government is threatened from various
directions and the economy is just beginning to rise and move forward, has stood firmly
on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique.  It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political, economic and
social havoc in the country and who within the short space of three years seeks
to return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the respondents
to issue travel documents to Mr. Marcos and the immediate members of his family and
to enjoin the implementation of the President's decision to bar their return to
the Philippines.

The Issue

The issue is basically one of power:  whether or not, in the exercise of the powers

granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.
 According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1.  Does the President have the power to bar the return of former President Marcos and
his family to the Philippines?

a.  Is this a political question?

2.  Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of "national security, public
safety or public health" -

a. Has the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety
or public health?

b.  Assuming that she has made that finding, -

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety,
or public health a political question?

d.  Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public safety, or
public health, have respondents established such fact?

3.  Have the respondents, therefore, in implementing the President's decision to bar the
return of former President Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing
any act which would effectively bar the return of former President Marcos and his
family to the Philippines?  [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]

The case for petitioners is founded on the assertion that the right of
the Marcoses to return to the Philippines is guaranteed under the following provisions
of the Bill of Rights, to wit:
Section 1.  No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

x x x
Section 6.  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 petitioners contend that the President is without power to impair the liberty of

abode of the Marcoses because only a court may do so “within the limits prescribed by
law.” Nor may the President impair their right to travel because no law has authorized
her to do so.  They advance the view that before the right to travel may be impaired by
any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos
and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13.  (1) Everyone has the right to freedom of movement and residence within the
borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his
country.

Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:

Article 12

1)      Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.

2)      Everyone shall be free to leave any country, including his own.

3)  The above-mentioned rights shall not be subject to any restrictions except those

which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the   respondents'  principal argument is that the issue in

this case involves a political question which is non-justiciable.  According to the Solicitor
General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of
abode.  Petitioners invoke these constitutional rights in vacuo without reference to
attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not

petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and public
safety.

It may be conceded that as formulated by petitioners, the question is not a political

question as it involves merely a determination of what the law provides on the matter
and application thereof to petitioners Ferdinand E. Marcos and family.  But when the
question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question becomes political ands this
Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here?  This is clearly
a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to

the Philippines and reestablish their residence here even it their return and residence
here will endanger national security and public safety?  This is still a justiciable question
which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos
and family shall return to the Philippines and establish their residence here?  This is now
a political question which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the Philippines.  [Memorandum
for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national
security over individual rights.  In support thereof, they cite Article II of the Constitution,
to wit:
Section 4.  The prime duty of the Government is to serve and protect the
people.  The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military, or civil service.

Section 5.  The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and his family from
returning to the Philippines for reasons of national security and public safety has
international precedents.  Rafael Trujillo of the Dominican
Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio Batista of Cuba, King Farouk of
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments.  [See Statement of Foreign Affairs Secretary Raul
S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the
scope of presidential power and its limits.  We, however, view this issue in a different
light.  Although we give due weight to the parties' formulation of the issues, we are not
bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S. Supreme Court
in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d
1204] and Haig v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640] which affirmed the
right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel
from the Philippines to other countries or within the Philippines.  These are what the
right to travel would normally connote.  Essentially, the right involved is the right to
return to one's country, a totally distinct right under international law, independent
from although related to the right to travel.  Thus, the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the right to leave a
country, and the right to enter one's country as separate and distinct rights.  The
Declaration speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(1)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the other
hand, the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art.  12(1)] and the right to "be free to leave any country,
including his own," [Art. 12(2)] which rights may be restricted by such laws as "are
necessary to protect national security, public order, public health or morals or the
separate rights and freedoms of others." [Art. 12(3)] as distinguished from the "right to
enter his own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to
one's country in the same context as those pertaining to the liberty of abode and the
right to travel.
The right to return to one's country is not among the rights specifically guaranteed
in the Bill of Rights, which treats only of the liberty of abode and the right to
travel, but it is our well-considered view that the right to return may be considered, as a
generally accepted principle of international law and under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are
not determinative of this case and are only tangentially material insofar as they relate to
a conflict between executive action and the exercise of a protected right.  The issue
before the Court is novel and without precedent in Philippine, and even in
American, jurisprudence.
 Consequently, resolution by the Court of the well-debated issue of whether or not
there can be limitations on the right to travel in the absence of legislation to that effect
is rendered unnecessary.  An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution.  Our resolution of the issue will involve a two-tiered
approach.  We shall first resolve whether or not the President has the power, under the
Constitution, to bar the Marcoses from returning to the Philippines.  Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcoses to the Philippines poses a serious threat to national interest and
welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great

branches of government.  To recall the words of Justice Laurel
in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.] Thus, the 1987
Constitution explicitly provides that "[t]he legislative power shall be vested in the
Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in
the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by law"
[Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the
Constitution.  For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative power;
and a grant of the judicial power means a grant of all the judicial power which may be
exercised under the government." [At 631-632.] If this can be said of the legislative
power which is exercised by two chambers with a combined membership of more than
two hundred members and of the judicial power which is vested in a hierarchy of courts,
it can equally be said of the executive power which is vested in one official - the
President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the Presidents of the Philippines." (Art. VII, Sec. 1.] However, it does not define
what is meant by "executive power" although in the same article it touches on
the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws,
the appointing power, the powers under the commander-in-chief clause, the power
to grant reprieves, commutations and pardons, the power to grant amnesty with
the concurrence of Congress, the power to contract or guarantee foreign loans, the
power to  enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Secs. 14-23.]
The inevitable question then arises:  by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall exercise
those specific powers and no other?  Are these enumerated powers the breadth and
scope of  "executive power"?  Petitioners advance the view that the President’s powers
are limited to those, specifically enumerated in the 1987 Constitution.  Thus, they
assert:  "The President has enumerated powers, and what is not enumerated is
impliedly denied to her, Inclusio unius est exclusio alterius.” [Memorandum for
Petitioners, p. 4; Rollo, p. 223.] This argument brings to mind the institution of the
U.S. Presidency after which ours is legally patterned.*
Corwin, in his monumental volume on the President of the United States grappled
with the same problem.  He said:
Article II is the most loosely drawn chapter of the Constitution.  To those who think that
a constitution ought to settle everything beforehand it should be a nightmare; by the
same token, to those who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article II in its opening words:  "The executive power

shall be vested in a President of the United States of
America." x x x.  [The President:  Office and Powers, 1787-1957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that “what the
presidency is at any particular moment depends in important measure on who is
President.” [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution.  It remained, of
course, an agency of government subject to unvarying demands and duties no matter
who was President.  But, more than most agencies of government, it changed shape,
intensity and ethos according to the man in charge.  Each President's distinctive
temperament and character, his values, standards, style, his habits, expectations,
idiosyncrasies, compulsions, phobias recast the White House and pervaded the entire
government.  The executive branch, said Clark Clifford, was a chameleon, taking its color
from the character and personality of the President.  The thrust of the office, its impact
on the constitutional order, therefore altered from President to President.  Above all,
the way each President understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate and to render an
accounting to the nation and posterity determined whether he strengthened or
weakened the constitutional order.  [At 212-213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does
but, rather, that the consideration of tradition and the development of presidential
power under the different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987
Constitution.  The 1935 Constitution created a strong President with explicitly broader
powers than the U.S. President.  The 1973 Constitution attempted to modify the system
of government into the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature.  The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution
itself withholds it.  Furthermore, the Constitution itself provides that the execution of
the laws is only one of the powers of the President.  It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over
the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power."  Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution.  In other words, executive power is more than the sum
of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive.  Thus, in the landmark decision
of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of
who between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal Company
and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
. . . Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature.  Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more clear that they
are not
judicial.  The fact that they do not fall within the authority of either of these two constit
utes logical ground for concluding that they do fall within that of the remaining one amo
ng which the powers of government are divided.  . . . [At 202-203; underscoring
supplied.]

We are not unmindful of Justice Holmes strong dissent.  But in his enduring words
of dissent we find reinforcement for the view that it would indeed be a folly to construe
the powers of a branch of government to embrace only what are specifically mentioned
in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white.  Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other.  x x x

x x x
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires.  [At 210-211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of the
Government is to serve and protect the people" and that "[t]he maintenance of peace
and order, the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action.  But such does not mean
that they are empty words.  Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these plans, or from
another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision.  More than that, having sworn to
defend and uphold the Constitution, the President has the
obligation under the Constitution to protect the people, promote their welfare and
advance the national interest.  It must be borne in mind that the Constitution, aside
from being an allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.  Hence, lest the
officers of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the travails
of the country are laid and from whom billions of dollars believed to be ill-gotten wealth
are sought to be recovered.  The constitutional guarantees they invoke are neither
absolute nor inflexible.  For the exercise of even the preferred freedoms of speech and
of expression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals.  The power involved is
the President's residual power to protect the general welfare of the people.  It is
founded on the duty of the President, as steward of the people.  To paraphrase
Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation
demand [See Corwin, supra, at 153.] It is a power borne by the President's duty to
preserve and defend the Constitution.  It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed
[See Hyman, The American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government and is best lodged
in the President.]
More particularly, this case calls for the exercise of the President's powers
as protector of the peace.  [Rossiter, The American Presidency.] The power of the
President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal
threats to its existence.  The President is not only clothed with extraordinary powers
in times of emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon.  Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want of
an emergency specified in the commander-in-chief provision.  For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in-Chief powers short of the calling of
the armed forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcoses from
returning has been recognized by members of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.] The Resolution
does not question the President's power to bar the Marcoses from returning to
the Philippines, rather, it appeals to the President's sense of compassion to allow a man
to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one.  It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect
general welfare.  In that context, such request or demand should submit to the exercise
of a broader discretion on the part of the President to determine whether it must be
granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty "to determine whether or

not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide.  But
nonetheless there remain issues beyond the Court's jurisdiction the determination of
which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum.  We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such
action may appear.  We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant.  Nor can we amend the
Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on
the political question doctrine.  The deliberations of the Constitutional Commission cited
by petitioners show that the framers intended to widen the scope of judicial review but
they did not intend courts of justice to settle all actual controversies before
them.  When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned.  If
grave abuse is not established, the Court will not substitute its judgment for that of the
official concerned and decide a matter which by its nature or by law is for the latter
alone to decide.  In this light, it would appear clear that the second paragraph of Article
VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers
the courts to determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions.  Pursuant to the
principle of separation of powers underlying our system of government, the Executive is
supreme within his own sphere.  However, the separation of powers, under the
Constitution, is not absolute.  What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension
of the privilege, but only if and when he acts within the sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.

In the exercise of such authority, the function of the Court is merely to check - not to
supplant - the Executive, or to ascertain merely whether he has gone beyond the
constitution limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. . . . [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines.  If such postulates do exist, it cannot be said
that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in
deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and
the facts revealed during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision.
The Court cannot close its eyes to present realities and pretend that the country
is not besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism,
the murder with impunity of military men, police officers and civilian officials, to
mention only a few.  The documented history of the efforts of the Marcoses and their
followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would
only exacerbate and intensify the violence directed against the State and instigate more
chaos.
As divergent and discordant forces, the enemies of the State may be contained.  The
military establishment has given assurances that it could handle the threats posed by
particular groups.  But it is the catalytic effect of the return of
the Marcoses that may prove to be the proverbial final straw that would break the
camel's back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses
a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause
the escalation of violence against the State, that would be the time for the President to
step in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence.  The State, acting through the Government,
is not precluded from taking pre-emptive action against threats to its existence if,
though still nascent, they are perceived as apt to become serious and direct.  Protection
of the people is the essence of the duty of government.  The preservation of the State -
the fruition of the people's sovereignty - is an obligation in the highest order.  The
President, sworn to preserve and defend the Constitution and to see the faithful
execution the laws cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy attributed to
the Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed
away by the Marcoses in foreign jurisdictions.  Then, we cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills.  The resulting precarious state of
our economy is of common knowledge and is easily within the ambit of judicial notice.
 The President has determined that the destabilization caused by the return of
the Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse.  Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not
act arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to
the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Narvasa,  Melencio-Herrera,  Gancayco, Grino-Aquino, Medialdea,  and Regalado,

JJ.,  concur.
Fernan, C.J., see separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla, and  Sarmiento, JJ., see dissent.
Paras, J., I dissent in separate opinion.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
Feliciano, J., on leave. Voted to grant petition when this case was deliberated upon.
 
 

*
 The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency.  But at the outset it must be pointed out that the
Philippine government established under the constitutions of 1935, 1973 and
1987 is a unitary government with general powers unlike that of the United
States which is a federal government with limited and enumerated powers.  Even
so the powers of the president of the Unites States have through the years
grown, developed and taken shape as students of that presidency have
demonstrated.

DISSENTING OPINION

PADILLA, J.:

I dissent.  As I see it, the core issue in this case is, which right will prevail in the
conflict between the right of a Filipino, Ferdinand E. Marcos, to return to
the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety.  In this context, the issue is
clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power.  Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice
Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the
power of Judicial Review, viz:
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government." Article VIII, Section 1, par. 2; (emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right
of every Filipino to travel which, in the language of the Constitution, shall not be
impaired "except in the interest of national security, public safety, or public health, as
may be provided by law" (Art. III, Sec. 6).  That the right to travel comprises the right to
travel within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable.  Short of all such components, the right to travel is
meaningless.  The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel
is absolute.  I do not agree.  It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely
declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security,
public safety or public health.  I do not, therefore, accept the petitioners’ submission
that, in the absence of enabling legislation, the Philippine Government is
powerless to restrict travel even when such restriction is demanded by national security,
public safety or public health.  The power of the State, in particular
cases, to restrict travel of its citizens finds abundant support in the police power of the
State, which may be exercised to preserve and maintain government as well as promote
the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any
given time, to restrict travel, even if founded on police power, cannot be absolute and
unlimited under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i. e., the right to return to the country.[1] Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked by
Marcos?  Stated differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security and public safety
in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination:  I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land
last 28 July 1989.  I have searched, but in vain, for convincing evidence that would
defeat and overcome the right of Mr. Marcos as a Filipino to return to this country.  It
appears to me that the apprehensions entertained and expressed by the respondents,
including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety.  They appear to be more speculative
than real, obsessive rather than factual.  Moreover, such apprehensions even if
translated into realities, would be "under control", as admitted to the Court by said
military authorities, given the resources and facilities at the command of
government.  But, above all, the Filipino people themselves, in my opinion, will know
how to handle any situation brought about by a political recognition of Mr. Marcos' right
to return, and his actual return, to this country.  The Court, in short, should not accept
respondents' general apprehensions, concerns and perceptions at face value, in the light
of a countervailing and even irresistible, specific, clear, demandable, and enforceable
right asserted by a Filipino.
Deteriorating political, social,   economic or exceptional conditions, if any, are not to
be used as a pretext to justify derogation of human rights.[2]
As a member of the United Nations, the Philippines has obligations under its
charter.  By adopting the generally accepted principles of international law as part of the
law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot
just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own,
and to return to his country.  This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (emphasis supplied)
“Arbitrary” or "arbitrarily" was specifically chosen by the drafters of the
Covenant[3] hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions
or a particular sense of justice which falls short of international law or standards.[4]
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety", it
is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question.  I do not agree.  I believe that this is one
case where the human and constitutional right invoked by one party is so specific,
substantial and clear that it cannot be overshadowed, much less, nullified
by simplistic generalities; worse, the Court neglects its duty under the Constitution
when it allows the theory of political question to serve as a convenient, and yet, lame
excuse for evading what, to me, is its clearly pressing and demandable duty to the
Constitution.
During the oral arguments in this case, I asked Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly deny the right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989.  I still have not found a
satisfactory answer to that question.  Instead, it has become clearer by the day that the
drama today is the same drama in 1983 with the only difference that the actors are in
opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this case
-
1. Mr. Marcos is a Filipino and, as such, entitled to return to,[5] die and be
buried in this country;
 2. respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him.  All we have are general conclusions of
"national security" and "public safety" in avoidance of a specific demandable and
enforceable constitutional and basic human right to return;
3. the issue of Marcos’ return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge.” It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.

[1]
 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration of Human Rights.
[2]
 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency
Situations:  Underdevelopment, Catastrophies and Armed Conflicts, The
International Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
[3]
 P. Hassan, The Word “Arbitrary” as used in the Universal Declaration of Human
Rights:  “Illegal or Unjust", 10 Harv. Int. L.J., p. 225 (1969).
[4]
 F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions of
Human Rights, pp. 135-166.
[5]
 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the Unites
States, is beyond the issues in this case; similarly, as to how the Philippine
government should deal with Mr. Marcos upon his return is also outside of the
issues in this case.

DISSENTING OPINION

PARAS, J.:

I dissent.  Already, some people refer to us as a nation without discipline.  Are we

ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be
allowed to return to the Philippines may be resolved by answering two simple
questions:  Does he have the right to return to his own country?; and should national
safety and security deny him this right?
 There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the Philippines,
he has the right to return to his own country except only if prevented by the demands of
national safety and national security.
Our Armed Forces have failed to prove this danger.  They are bereft of hard
evidence, and all they can rely on is sheer speculation.  True, there is some danger but
there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that
the former President should be allowed to return to our country under the conditions
that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried within
ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.

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Supreme Court E-Library ide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court. (Emphasis supplied)

The court’s power to issue rules, including rules concerning the protection and
enforcement of constitutional rights, is limited to judicial procedures. We do not have
competence to compel the issuance of administrative procedures. Rules of procedure of
quasi-judicial bodies can only be disapproved by the Supreme Court, but not issued,
modified or approved by it.

The Constitution vests the executive power upon the President. He or she, and not the
judiciary, exercises the power of control over all executive departments, bureaus and
offices,[325] including the Food and Drug Administration. The judiciary has no
administrative power of control or supervision over the Food and Drug Administration.
Insisting that we can impose, modify or alter rules of the Food and Drug Administration
is usurpation of the executive power of control over administrative agencies. It is a
violation of the principle of separation of powers, which recognizes that “[e]ach
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere.”[326] The system of checks and
balances only allows us to declare, in the exercise of our judicial powers, the Food and
Drugs Administration’s acts as violative of the law or as committed with grave abuse of
discretion.[327] Such power is further limited by the requirement of actual case or
controversy.[328]

FINAL NOTE

It is not the Supreme Court alone that can give the full substantive meaning of the
provisions of the Constitution. The rules that aid in reshaping social reality as a result of
the invocation and interpretation of constitutional provisions should be the product of
the interrelationship of all constitutional organs.

This case presents us with an opportunity to clearly define our role. We have the power
to declare the meanings of constitutional text with finality. That does not necessarily
mean that we do not build on the experience of the other departments and organs of
government. We are part of the constitutional design that assures that the sovereign
people’s will is vetted in many ways. Deference to the outcome in legislative and
executive forums when there is no “actual case or controversy” is also our constitutional
duty.

Judicial deference implies that we accept that constitutional role that assures
democratic deliberation to happen in political forums.  It proceeds from an
understanding that even as we labor and strive for wisdom, we will never be the
repository of all of it. Our status as members of this court is likewise no blanket license
to impose our individual predilections and preferences.  Contrary to an esteemed
colleague, our privileges do not include such judicial license.

The judicial temperament is one that accepts that wisdom is better achieved by the
collective interaction of the constitutional bodies. We have no unbounded license to
simply act when we want to.  That judicial temperament ensures the Rule of Law.

The President approved the Responsible Parenthood and Reproductive Health Act of
2012 or Republic Act No. 10354 on December 21, 2012. It now defines the political
consensus within Congress and with the President. The law took five (5) Congresses or
not less than thirteen (13) years to complete.[329] Plenary debates in both the House of
Representatives and in the Senate were covered live by public television.

Whole communities were riveted by the debates. Newspaper columnists weighed in

with their ideas. Public forums were filled with heated discussion on the merits and
demerits of every provision. Catholic pulpits were used to express opinion. Various
forms of democratic deliberation and debate translated to political positions of
legislators. Many of these positions were informed by their interpretation of the
Constitution and the needs of their communities.  This, in turn, formed into the present
provisions of this law.
The petitioners come to us after having lost the majority in full democratic deliberation
in the halls of Congress. They ask us to read the provisions of the law and the
implementing rules. Without the benefit of an actual controversy regarding conflicting
rights arising from real facts, they ask us to declare various provisions formulated by the
legislature as unconstitutional. In effect, they ask us to continue to reshape the political
consensus. In effect, they ask us to render an advisory opinion, and on that basis, refine
the law.

This is not what we do.

Courts act on conflict of rights arising from actual facts and events. We do not resolve
moral, philosophical or even legal issues barren of facts.

Unwanted pregnancies may result in clinical complications and deaths of women during
childbirth,[330] of the fetus while inside the womb[331] and of infants soon after they are
born.[332] Unwanted pregnancies may be the result of lack of knowledge of the
consequences of the sexual act, or it could be due to the lack of information and access
to safe and effective reproductive technologies. The law impliedly accepts that the
choice of intimate relationships is better left to the individual and the influences of their
culture, their family, and their faiths.

The law acknowledges the differential impact of lack of knowledge and access to
reproductive health technologies between the rich and the poor.[333] It, therefore,
requires that proper information and access be made more available to those who need
it. It mandates the government to intervene at least in order to provide the right
information and, when requested and without coercion, provide access.

The law assumes that informed choices provide greater chances for a better quality of
life for families. The law actively intervenes so that government itself can provide these
choices so that the quality of life improves. More than corporeal existence, it hopes to
assure human dignity.

I dissent from the majority’s position that we can review the law.  I dissent more
vigorously from the majority’s ruling that some provisions are declared unconstitutional
on the basis of speculative facts. In my view, this law needs to be fully implemented.

Petitioners have come before us driven by their unfailing belief in the moral rightness of
their faith and their causes. Their faith is not to be questioned. Their conviction is solid. 
But these cases are premature.

But, they are not the only ones who may be affected. They cannot speak for everyone.

There are many burdened mothers who can barely feed their children.

There are mothers who have had to undergo abortion whether intended or unintended
because of the unavailability of information and access to contraception should they
have had the right information.
There are mothers who died at childbirth because their pregnancy or their poverty was
not their choice.

There are impoverished mothers and fathers who helplessly bore the deaths of their
children.

They cannot speak. Because of the dominant morality that surround them, many choose
not to speak.

All bear their own unspeakable reality.  This law may just be the hope that they deserve.

ACCORDINGLY, I vote to DISMISS these petitions. This law, in my view, gives them a
chance. It should be implemented in full.

[1]
  See P. A. Freund, Mr. Justice Brandeis, in On Law and Justice 119, 140 (1968) and  A.
M. Bickel, THE LEAST DANGEROUS BRANCH 71 (1962), as cited by V. V. Mendoza,
JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS: CASES AND MATERIALS 91 (2004).

[2]
  See Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R.
No. 178552, October 5, 2010, 632 SCRA 146, 166 [Per J. Carpio-Morales, En Banc].

[3]
  See  Angara v. Electoral Commission,  63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc];
See also  Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429 (1998) [Per J.
Panganiban, First Division].

[4]
  See the separate opinion of J. Mendoza in Cruz v. Sec. of Environment and Natural
Resources, 400 Phil. 904, 1092 (2002) [Per Curiam, En Banc]; See the concurring opinion
of J. Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J.
Bellosillo, En Banc], citing Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413
(1972); Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R.
No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].

[5]
  Imbong et al. petition, rollo  (G.R. No. 204819), vol. 1, p. 5; Serve Life CDO Inc.
petition, rollo (G.R. No. 204988), vol. 1, p.8.

[6]
  Task Force for Family and Life petition, rollo (G.R. No. 204957), vol. 1, p. 6.

[7]
  Alliance for the Family Foundation petition, rollo  (G.R. No. 204934), vol. 1, p. 9; Tatad
et al., petition, rollo (G.R. No. 205491), vol. p. 4.

[8]
  De Venecia et al., comment-in-intervention, rollo (G.R. No. 205491), vol. 1, p. 370;
C4RH motion to intervene, rollo  (G.R. no. 204934), vol. 1, p.849.

[9]
  See for example petitions in G.R. No. 204988 by Serve Life CDO, Inc., et al.; G.R. No.
205003 by Expedito A. Bugarin; G.R. No. 205491 by Francisco Tatad et al.; G.R. No.
205720 by Pro-Life Philippines Foundation, Inc.; and G.R. No. 205355 by Millennium
Saint Foundation, Inc. et al.
[10]
 People v. Vera, 65 Phil. 56 (1937).

[11]
 Id.

[12]
 Republic Act No. 10354, Sections 2(d), 3(d), 3(e), 3(j).

[13]
 See J. Carpio’s concurring opinion, p. 3.

[14]
 See 1986 Records of the Constitutional Commission No. 32, Vol. 1, July 17, 1986; No.
81, Vol. IV, September 12, 1986; No. 84, Vol. IV, September 16, 1986; No. 85, Vol. IV,
September 17, 1986; No. 87, Vol. IV, September 19, 1986.

[15]
 E.g. That the beginning of life is already settled in the medical community; That a
chromosome count of 46 can only be found in humans; That the situations when moral
dilemma exists are few.

[16]
 (Ectopic pregnancy occurs when the fertilized egg implants into parts or organs other
than the uterus.) See The American College of Obstetricians and Gynecologiests,
Frequently Asked Questions, FAQ155: Pregnancy, http://www.acog.org/~/media/For
%20Patients/faq155.pdf?dmc=1&ts=20140323T2143090835 accessed on March 24,
2014; See Obstetrics and Gynecology by Charls RB Beckman, et al. 7th ed. Published by
Wolters Kluwer, accessed through https://www.inkling.com/read/obstetrics-
gynecology-beckmann-7th/chapter-19/ectopic-pregnancy on March 27, 2014; See In
Vitro Fertilization: The A.R.T.* of Making Babies (*Assisted Reproductive Technology) by
Sher Geoffrey, et al. Skyhouse Publishing 4th Ed. 2013, Chapter 2, p. 33.

[17]
 E.g. pre-eclampsia, seizures, liver or kidney complications.

[18]
 (Assisted reproductive technologies (ART) refer to “all fertility treatments in which
both eggs and sperm are handles. In general, ART procedures involve surgically
removing eggs from a woman’s ovaries, combining them with sperm in the laboratory,
and returning them to the woman’s body or donating them to another woman. They do
NOT include treatments in which only sperm are handled (i.e. intrauterine—or artificial
—insemination) or procedures in which a woman takes medicine only to stimulate egg
production without the intention of having eggs retrieved.”) See Center for Disease
Control and Prevention, What is Assisted Reproductive Technology (visited March 24,
2014).

[19]
 See E. Peñalver, The Concept of Religion, 107 Yale L.J. 791, 803 (1997).

[20]
 See De Venecia et al. comment-in-intervention, rollo (G.R. No. 205491), vol. 1, p. 375-
376  citing G. Wills, PAPAL SIN: STRUCTURES OF DECEIT (2001).

[21]
 See Declaration of Geneva (1948). Adopted by the General Assembly of World
Medical Association at Geneva Switzerland, September 1948. (The Philippine Medical
Association is a member of the World Medical Association.) (visited April 4, 2014); See
also Hippocratic Oath, available at (visited April 4, 2014).

[22]
 Republic Act No. 10354, Section 23 (a)(2)(i).
[23]
 Ponencia, pp. 76-81.

[24]
 Constitution, Article II, section 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law of women and men.

[25]
 See Office of the Solicitor General, consolidated comment, rollo (G.R. No. 205491),
vol. 1, pp. 153 and 158.

[26]
  Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc]. See
also Dumlao v. Commission on Elections, 184 Phil. 369, 377 (1980) [Per J. Melencio-
Herrera, En Banc], where this court held that “[i]t is basic that the power of judicial
review is limited to the determination of actual cases and controversies.”

[27]
 Ponencia, p. 28.

[28]
 Id.

[29]
 Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24,
1993, 225 SCRA 568, 579 [Per J. Bellosillo, En Banc]; See also Republic
Telecommunications Holdings, Inc. v. Santiago, 556 Phil. 83, 91-92 (2007) [Per J. Tinga,
Second Division].

[30]
 David v. Macapagal-Arroyo, 522 Phil. 705, 753 (2006) [Per J. Sandoval-Gutierrez, En
Banc].

[31]
 See V. V. MENDOZA, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS: CASES AND
MATERIALS 87 (2004).

[32]
 G.R. No. 183591, October 14, 2008, 568 SCRA 402 [Per J. Carpio-Morales, En Banc].

[33]
 Id. at 443-449.

[34]
 Id. at 450.

[35]
 Id. at 518.

[36]
 Ponencia, p. 28.

[37]
  See CONSTITUTION, Article VIII, section 1.

[38]
 See Sana v. Career Executive Service Board,  G.R. No. 192926, November 15, 2011,
660 SCRA 130, 138 [Per J. Carpio, En Banc] where the ponencia dismissed the petition
for being moot and academic and characterized the North Cotabato case as an instance
where this court relaxed the actual case or controversy requirement to review moot and
academic issues.

[39]
 602 Phil. 64 (2009) [Per J. Brion, En Banc].
[40]
 Section 19. Start of Full Deregulation.  – Full deregulation of the Industry shall start
five (5) months following the effectivity of this Act: Provided, however, That when the
public interest so requires, the President may accelerate the start of full deregulation
upon the recommendation of the DOE and the Department of Finance when the prices
of crude oil and petroleum products in the world market are declining and the value of
the peso in relation to the US dollar is stable, taking into account the relevant trends
and prospects: Provided, further, That the foregoing provisions notwithstanding, the
five (5)-month Transition Phase shall continue to apply to LPG, regular gasoline, and
kerosene as socially-sensitive petroleum products and said petroleum products shall be
covered by the automatic pricing mechanism during the said period.

Upon the implementation of full deregulation as provided herein, the Transition Phase is
deemed terminated and the following laws are repealed:

(a) Republic Act No. 6173, as amended;

(b) Section 5 of Executive Order No. 172, as amended;
(c) Letter of Instruction No. 1431, dated October 15, 1984;
(d) Letter of Instruction No. 1441, dated November 15, 1984;
(e) Letter of Instruction No. 1460, dated May 9, 1985;
(f) Presidential Decree No. 1889; and
(g) Presidential Decree No. 1956, as amended by Executive Order No. 137:

Provided, however, That in case full deregulation is started by the President in exercise
of the authority provided in this Section, the foregoing laws shall continue to be in force
and effect with respect to LPG, regular gasoline and kerosene for the rest of the five (5)-
month period.

[41]
 Garcia v. The Executive Secretary, 602 Phil. 64, 75-76 (2009) [Per J. Brion, En Banc].

[42]
 607 Phil. 334 (2009) [Per C. J.  Puno, En Banc].

[43]
 Id. at 341. This court likewise denied the petitions for failing to present an actual case
or controversy.

[44]
 G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc]
citing  Information Technology Foundation of the Philippines v. COMELEC, 499 Phil. 281,
304-305 (2005) [Per J. Panganiban, En Banc].

[45]
 Id. at 175-177.

[46]
 G.R. No. 186613, August 27, 2013, 703 SCRA 623 [Per J. Perez, En Banc].

[47]
 Id. at 641-643.

[48]
  See Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP), 589 Phil. 387 (2008) [Per J. Carpio-Morales, En
Banc], dissenting opinions of J. Velasco, Jr., and J. Nachura. See also separate opinions of
J. Tinga and Chico-Nazario; See also J. Brion’s concurring and dissenting opinion and J.
Leonardo-de Castro’s separate concurring and dissenting opinion.
[49]
 Province of North Cotabato v. Government of the Republic of the Philippines Peace
Panel on Ancestral Domain (GRP), 589 Phil. 387, 646-647 (2008) [Per J. Carpio-Morales,
En Banc].

[50]
 Id. at 706-707.

[51]
 Id. at 685-688.

[52]
 CONSTITUTION, Article VIII, section 1, paragraph 2. See Angara v. Electoral
Commission, 63 Phil. 139 (1936) [Per J. Laurel, En Banc].

[53]
 See V. V. MENDOZA, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS: CASES AND
MATERIALS 86 (2004).

[54]
 Belgica, et al. v. Executive Secretary, G.R. No. 208566, November 11, 2013 [Per J.
Perlas-Bernabe, En Banc].

[55]
 Belgica, et al. v. Executive Secretary, G.R. No. 208566, November 11, 2013, J.
Leonen’s concurring opinion, pp. 6-7. This case, however, falls under the exception of
the actual case requirement due to jurisprudential precedent of patent irregularity of
disbursements and a clear, widespread, and pervasive wastage of funds by another
branch of government.

[56]
 SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies.
– The National Drug Formulary shall include hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning
products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be
observed in selecting drugs including family planning supplies that will be included or
removed from the Essential Drugs List (EDL) in accordance with existing practice and in
consultation with reputable medical associations in the Philippines. For the purpose of
this Act, any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential
medicines and supplies of all national hospitals:  Provided, further,  That the foregoing
offices shall not purchase or acquire by any means emergency contraceptive pills,
postcoital pills, abortifacients that will be used for such purpose and their other forms
or equivalent.

[57]
 Ponencia, p. 55.

[58]
 SEC. 14. Age- and Development-Appropriate Reproductive Health Education. – The
State shall provide age- and development-appropriate reproductive health education to
adolescents which shall be taught by adequately trained teachers informal and
nonformal educational system and integrated in relevant subjects such as, but not
limited to, values formation; knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and other forms
of gender based violence and teen pregnancy; physical, social and emotional changes in
adolescents; women’s rights and children’s rights; responsible teenage behavior; gender
and development; and responsible parenthood: Provided, That flexibility in the
formulation and adoption of appropriate course content, scope and methodology in
each educational level or group shall be allowed only after consultations with parents-
teachers-community associations, school officials and other interest groups. The
Department of Education (DepED) shall formulate a curriculum which shall be used by
public schools and may be adopted by private schools.

[59]
 Ponencia, pp. 81-82.

[60]
 Ponencia, p. 29.

[61]
 G.R. No. 203335, February 18, 2014 [Per J. Abad, En Banc].

[62]
 J. Leonen, dissenting and concurring opinion, p. 32, G.R. No. 203335, February 18,
2014 [Per J. Abad, En Banc].

[63]
 400 Phil. 904, (2002) [Per Curiam, En Banc].

[64]
 Id. at 1092. J. Mendoza’s separate opinion.

[65]
 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc].

[66]
 See the concurring opinion of J. Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290,
430-431 (2001) [Per J. Bellosillo, En Banc], citing Gooding v. Wilson, 405 U.S. 518, 521,
31 L.Ed.2d 408, 413 (1972); United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697,
707 (1987); People v. Dela Piedra, 403 Phil. 31 (2001) [Per J. Kapunan, First Division];
Broadrick v. Oklahoma, 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973); Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d
362, 369 (1982); United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529
(1960); Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193
(1912).

[67]
 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].

[68]
 Id. at 775-777, citing the concurring opinion of J. Mendoza in  Estrada v.
Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc]; Broadrick v.
Oklahoma, 413 U.S. 601 (1973); Younger v. Harris, 401 U.S. 37, 52-53, 27 L.Ed.2d 669,
680 (1971); United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees,
State Univ. of N.Y v. Fox,  492 U.S. 469, 106 L.Ed.2d 388 (1989).

[69]
 479 Phil. 265 (2004) [Per J. Panganiban, En Banc].

[70]
 576 Phil. 357 (2008) [Per J. Chico-Nazario, En Banc].

[71]
 594 Phil. 305 (2008) [Per J. Chico-Nazario, En Banc].

[72]
 Id at 316.
[73]
 G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].

[74]
 Id. at 186-187,  citing Prof. David v. Pres. Macapagal-Arroyo, 522 Phil. 705 (2006) [Per
J. Sandoval-Gutierrez, En Banc]; Spouses Romualdez v. Commission on Elections, 576
Phil. 357 (2008) [Per J. Chico-Nazario, En Banc]; Estrada v. Sandiganbayan, 421 Phil. 290
(2001) [Per J. Bellosillo, En Banc]; Constitution, Article III, section 4; People v. Siton, 600
SCRA 476, 485 (2009) [Per J. Ynares-Santiago, En Banc]; Virginia v. Hicks, 539 U.S. 113,
156 L. Ed. 2d 148 (2003); Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).

[75]
 J. Leonen, dissenting and concurring opinion, p. 38, Disini v. Secretary of Justice, G.R.
No. 203335, February 18, 2014 [Per J. Abad, En Banc].

[76]
 Id.

[77]
 Rules of Court, rule 3, section 12, which provides: “Class Suit. - When the subject
matter of the controversy is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number of them which the
court finds to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any party in interest
shall have the right to intervene to protect his individual interest.”

[78]
 Rules of Court, rule 3, section 12.

[79]
 G.R. No. 4695, 12 Phil. 227 (1908) [Per J. Willard, En Banc].

[80]
 Id.

[81]
 Id. at 240-241.

[82]
 157 Phil. 551 (1974) [Per J. Zaldivar, Second Division].

[83]
 Id. at 564-569, citing  Niembra v. The Director of Lands, 120 Phil. 509 (1964) [Per J.
Labrador, En Banc].

[84]
 A. M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623 [En Banc, Unsigned Resolution].

[85]
 Id. at 623.

[86]
 Rules of Court, rule 3, section 12.

[87]
 Rules of Court, rule 3, section 6.

[88]
 A. M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623, 623 [En Banc, Unsigned
Resolution].

[89]
 Id. at 630.

[90]
 Id. at 627, 629-630.
[91]
 Bulig-bulig Kita Kamaganak Association v. Sulpicio Lines, Inc. G.R. No. 84750, May 19,
1989, 173 SCRA 514 [En Banc, Unsigned Resolution].

[92]
 Id. at 515.

[93]
 See for example Francisco Jr. v. The House of Representatives, 460 Phil. 830 (2003).
(This case discussed that “[w]here it clearly appears that not all interests can be
sufficiently represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail.”)

[94]
 444 Phil 230 (2004) [Per J. Bellosillo, En Banc].

[95]
 Id. at 257-258. Justice Mendoza concurred in the result. Justices Carpio and Austria-
Martinez dissented. Justices Panganiban and Carpio-Morales joined Justice Carpio, while
Justice Azcuna joined Justice Austria Martinez. Citations omitted.

[96]
 Petition docketed as G.R. No. 204819.

[97]
 Imbong, et al. petition, rollo (G.R. No. 204819), vol. 1, p. 5.

[98]
 Id.

[99]
 Petition docketed as G.R. No. 20934.

[100]
 Alliance for the Family Foundation, Inc. petition,  rollo (G.R. No. 20934), vol. 1, p. 9.

[101]
 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].

[102]
 Id. at 802-803.

[103]
 Petition docketed as G.R. No. 204957.

[104]
 Task Force for Family and Life Visayas, Inc. amended petition, rollo  (G.R. No.
204957), pp. 44-45.

[105]
 Id. at 45.

[106]
 Id.

[107]
 Petition docketed as G.R. No. 204988.

[108]
 Serve Life CDO Inc. petition, rollo (G.R. No. 204988), p. 8.

[109]
 Id.

[110]
 Petition docketed as G.R. No. 205491.

[111]
 Tatad et al. petition,  rollo (G.R. No. 205491), vol. 1, p. 4.
[112]
 Petition docketed as G.R. No. 207172.

[113]
 Couples for Christ petition, rollo  (G.R. No. 207172), vol. 1,, p. 11.

[114]
 Petition docketed as G.R. No. 205720.

[115]
 Pro-Life Philippines Foundation et al. petition, rollo (G.R. No. 205720), vol. 1, p. 5.

[116]
 Id.

[117]
 G.R. No. 204988 by Serve Life CDO, Inc., et al.; G.R. No. 205003 by Expedito A.
Bugarin; G.R. No. 205491 by Francisco Tatad et al.; G.R. No. 205720 by Pro-Life
Philippines Foundation, Inc.; and G.R. No. 205355 by Millennium Saint Foundation, Inc.,
et al.

[118]
 David v. Macapagal-Arroyo, 522 Phil. 705, 763-764 (2006) [Per J. Sandoval-Gutierrez,
En Banc].

[119]
 See J. Leonen concurring opinion in Belgica, et al. v. Executive Secretary, G.R. No.
208566, November 11, 2013 [Per J. Perlas-Bernabe, En Banc].

[120]
 Constitution, Article XI, section 2.

[121]
 See Estrada v. Desierto,  408 Phil. 194 (2001) [Per J. Puno, En Banc], cited in
Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, 660 SCRA
84. See also J. Leonen concurring opinion in Belgica, et al. v. Executive Secretary, G.R.
No. 208566, November 11, 2013 [Per J. Perlas-Bernabe, En Banc].

[122]
 Declaration of policy.

[123]
 Guiding Principles of Implementation.

[124]
 The Philippine National Drug Formulary System and Family Planning Supplies.

[125]
 Ponencia, p. 48.

[126]
 Id.

[127]
 Id.

[128]
 G.R. No. 83896, February 22, 1991, 194 SCRA 317, [En Banc, per Fernando, C.J.,
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Medialdea, Regalado and Davide, Jr., JJ., concur; Paras, J., x x x concur because cabinet
members like the members of the Supreme Court are not supermen; Sarmiento and
Grino-Aquino, JJ., No part].

[129]
 Id. at 325.
[130]
 Id. at 337-338.

[131]
 Id.

[132]
 CONSTITUTION, Article II, section 1.

[133]
 (The right to life provision in Article II, Section 12 of the Constitution was initially
intended to be part of Section 1 of the Bill of Rights, such that the provision reads:
Section 1. No person shall be deprived of life, liberty or property without due process of
law, nor shall any person be denied the equal protection of the laws. The right to life
extends to the fertilized ovum.) See RCC NO. 32, Vol. 1, July 17, 1986.

[134]
 (Final provision is changed to “from conception.”)

[135]
 RCC No. 32, Vol. 1, July 17, 1986.

[136]
 Id.

[137]
 Id.

[138]
 RCC No. 32, Vol. 1, July 17, 1986.

*
 Corrected. Earlier version had an erratum.

[139]
 RCC No. 85, Vol. 4, September 17, 1986.

[140]
 Id.

[141]
 C. Cameron and R. Williamson, In the world of Dolly, when does a human embryo
acquire respect? J Med Ethics 31, 215–220, 220 (2005)

[142]
 JM Goldenring, The brain-life theory: towards a consistent biological definition of
humanness, Journal of medical ethics, 11, 198-204 (1985).

[143]
 Id.

[144]
 See MC Shea, Embryonic life and human life, Journal of medical ethics, 11, 205-209
(1985)

[145]
 Id.

[146]
 See D. DeGrazia, Human Identity and Bioethics, (2005).

[147]
 RCC No. 32, Vol. 1, July 17, 1986,

[148]
 RCC No. 32, Vol. 1, July 17, 1986,

[149]
 RCC No. 32, Vol. 1, July 17, 1986,
[150]
 RCC No. 32, Vol. 1, July 17, 1986,

[151]
 RCC No. 32, Vol. 1, July 17, 1986.

[152]
 RCC No. 32, Vol. 1, July 17, 1986.

[153]
 RCC No. 32, Vol. 1, July 17, 1986.

[154]
 RCC No. 32, Vol. 1, July 17, 1986.

[155]
 See C. Cameron and R. Williamson, In the world of Dolly, when does a human
embryo acquire respect? J Med Ethics 31, 215–220 (2005).

[156]
 Id.

[157]
 Id.

[158]
 Id.; See also (visited March 29, 2014).

[159]
 See C. Cameron and R. Williamson, In the world of Dolly, when does a human
embryo acquire respect? J MED ETHICS 31, 215–220, 216 (2005), citing Uren WJ. How is
it right to treat the human embryo? The embryo and stem cell research. PACIFICA, 2003;
16:No 2:2.

[160]
 See (visited March 29, 2014).

[161]
 See (visited March 29, 2014); (visited March 29, 2014); (visited March 29, 2014).

[162]
 See C. Cameron and R. Williamson, In the world of Dolly, when does a human
embryo acquire respect? J Med Ethics 31, 215–220, 216 (2005).

[163]
 Id.

[164]
 RCC No. 32, Vol. 1, July 17, 1986.

[165]
 Id.

[166]
 G. Benagiano, Giuseppe, et al.,
Fate of fertilized human oocytes, Reproductive, BIOMEDICINE ONLINE, 21(6), 732-741
(2010).

[167]
  See N. Macklon, NS., et al., Conception to ongoing pregnancy: the ‘black box’ of
early pregnancy loss.  HUMAN REPRODUCTION UPDATE. 8(4), 333-343 (2002).

[168]
 RCC No. 81, Vol. IV, September 12, 1986.

[169]
 Id.

[170]
 N. Manish, APPROACH TO PRACTICAL PEDIATRICS 303 (2011); (visited March 28,
2014).

[171]
 See L. Crowley, AN INTRODUCTION TO HUMAN DISEASE: PATHOLOGY AND
PATHOPHYSIOLOGY CORRELATIONS 169 (2013); (visited March 28, 2014).

[172]
 See R. Goss, DEER ANTLERS, REGENERATION, FUNCTION AND EVOLUTION, 46
(1983); G. Feldhamer and W. McShea, DEER: THE ANIMAL ANSWER GUIDE, 4  (2012).

[173]
 RCC No. 85, Vol. IV, September 17, 1986.

[174]
 K. Edmonds (ed.), DEWHURST’S TEXTBOOK OF OBSTETRICS AND GYNAECOLOGY, 76-
87, (8th ed.).

[175]
 Id. at 101.

[176]
 Id. at 105.

[177]
 Id. at 107-108.

[178]
 Id. at 105-109.

[179]
 See http://www.cancer.gov/ncicancerbulletin/112911/page6> (visited March 28,
2014).

[180]
 See (visited March 29, 2014).

[181]
 RCC No. 84, Vol. IV, September 16, 1986.

[182]
 See Article 7 Summa Theologiae on Whether it is Lawful to kill a man in self-
defense, (visited March 29, 2014); See also R. Hull, Deconstructing the Doctrine of
Double Effect, June 2000, Ethical Theory & Moral Practice; June 2000, Vol. 3 Issue 2, p.
195 (visited March 29, 2014).

[183]
 R. Hull, Deconstructing the Doctrine of Double Effect, June 2000, Ethical Theory &
Moral Practice; June 2000, Vol. 3 Issue 2, p. 195 (visited March 29, 2014).

[184]
 Vol. IV, September 16, 1986, RCC No. 84.

[185]
 Dr. R. Virola, Statistics on Violence Against Women and Children: A Morally
Rejuvenating Philippine Society? (visited March 29, 2014); Dr. R. Virola, Abused
Children, (visited March 29, 2014).

[186]
 Dr. R. Virola, Abused Children, (visited March 29, 2014).

[187]
 2008 National Demographic and Health Survey, accessed from Demographic and
Health Surveys Program, website at on April 3, 2014. P. 90-91.

[188]
 See for example Alliance for the Family Foundation, et al., rollo, vol. 1, pp. 1278-
1291.
[189]
 See Joint Memorandum of House of Representatives and respondent-intervenor
Edcel Lagman, rollo (G.R. no. 204819), vol. 3, pp. 2330-2333..; Memorandum of
respondents-intervenors Filipino Catholic Voices for Reproductive Health, et
al., rollo, (G.R. No. 204819), vol. 3, p. 2255.

[190]
 A. Vander, et al. HUMAN PHYSIOLOGY: THE MECHANISMS OF BODY FUNCTION 664
(8th Ed.  2001).

[191]
 Id. at 664-665; See S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF
MAKING BABIES (*ASSISTED REPRODUCTIVE TECHNOLOGY) 32 (4th Ed. 2013).

[192]
 A. Vander, et al. Human Physiology: THE MECHANISMS OF BODY FUNCTION 664 (8th
Ed.  2001)

[193]
 Id. at 663.

[194]
 Id; See also Human Reproduction: Anatomy and Physiology, Marquette University
Website (visitedMarch 27, 2014).

[195]
 See Vander at 663;  See review of literature in S. Pallone and G. Bergus, Fertility
Awareness-Based Methods: Another Option for Family Planning, J.Am.Board Fam. Med.,
22(2):147-157 (2001); See S. Geoffrey, et al., IN VITRO FERTILIZATION: The A.R.T.* of
Making Babies (*ASSISTED REPRODUCTIVE TECHNOLOGY) 30 (4th ed. 2013; See also
Human Reproduction: Anatomy and Physiology, Marquette University
Website (visitedMarch 27, 2014); See also C. Thibault, Physiology and physiopathology
of the fallopian tube by, ( visited March 27, 2014).

[196]
 A. Vander, et al. HUMAN PHYSIOLOGY: THE MECHANISMS OF BODY FUNCTION 663
(8th Ed.  2001).

[197]
 Id. at 665; See S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING
BABIES (*ASSISTED REPRODUCTIVE TECHNOLOGY) 34-35 (4th Ed. 2013).

[198]
  See Vander, at 665.

[199]
 Id; See S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING BABIES
(*ASSISTED REPRODUCTIVE TECHNOLOGY) 32-33 (4th Ed. 2013).

[200]
 See Vander at 665.

[201]
 Id.

[202]
 Id. 665.

[203]
 See C. Beckman, et al., OBSTETRICS AND GYNECOLOGY (7th ed.), available at

(visited on March 27, 2014).

[204]
 See Vander at 669.

[205]
 Id at 677.

[206]
 Id.

[207]
 See N. Macklon, NS., et al., Conception to ongoing pregnancy: the ‘black box’ of
early pregnancy loss, HUMAN REPRODUCTION UPDATE. 8(4), 333-343 (2002). See
also G. Benagiano, Giuseppe, et al., Fate of fertilized human oocytes, Reproductive,
BIOMEDICINE ONLINE, 21(6), 732-742 (2010); S. Geoffrey, et al., IN VITRO
FERTILIZATION: THE A.R.T.* OF MAKING BABIES (*ASSISTED REPRODUCTIVE
TECHNOLOGY) 39 (4th Ed. 2013).

[208]
 Id.

[209]
 See N. Macklon, NS., et al., Conception to ongoing pregnancy: the ‘black box’ of early
pregnancy loss.  HUMAN REPRODUCTION UPDATE. 8(4), 333, 337 (2002).citing Boue et
al 1975 and Eiben, et al. 1987.

[210]
 Id. at 334.

[211]
 G. Benagiano, Giuseppe, et al., Fate of fertilized human oocytes, Reproductive,
BIOMEDICINE ONLINE, 21(6), 732-742 (2010); See also  Id. at 333-343.

[212]
 Id; See  S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING BABIES
(*ASSISTED REPRODUCTIVE TECHNOLOGY) 39 (4th Ed. 2013).

[213]
 See G. Benagiano, Giuseppe, et al., Fate of fertilized human oocytes,
Reproductive, BIOMEDICINE ONLINE, 21(6), 732-742 (2010); See N. Macklon, NS., et al.,
Conception to ongoing pregnancy: the ‘black box’ of early pregnancy loss. HUMAN
REPRODUCTION UPDATE. 8(4), 333, 335 (2002).

[214]
 Id.

[215]
 See Vander at 669.

[216]
 Id. at 668-669.

[217]
 See Joint Memorandum of House of Representatives and respondent-intervenor,
Lagman, rollo (G.R. No. 204819), vol. 3, pp. 2330-2333.

[218]
 See K. Grens, When does pregnancy begin? Doctors disagree, November 17,
2011, (visited March 25, 2014); See for example E. Foley, THE LAW OF LIFE AND DEATH
BY ELIZABETH PRICE FOLEY 59(2011) President and Fellows of Harvard
College; See Vander at 677.

[219]
 D. DeGrazia, HUMAN IDENTITY AND BIOETHICS, DAVID DEGRAZIA, 246 (2005).

[220]
 Id.
[221]
 Id. 247.

[222]
 Id.

[223]
 Id. at 248.

[224]
 Id. at 248.

[225]
 Id.

[226]
 See Id. at 249.

[227]
 Id.

[228]
 Id. at 250-251.

[229]
 Id.

[230]
 See Id. at 246-252.

[231]
 Id. at 252.

[232]
 Id.

[233]
 Id. at 252.

[234]
 Id. at 253.

[235]
 The American College of OBSTETRICIANS AND GYNECOLOGIESTS, Frequently Asked
Questions, FAQ155: Pregnancy, available at (visited on March 24, 2014); See C.
Beckman, et al., OBSTETRICS AND GYNECOLOGY (7th ed. ), available at <
https://www.inkling.com/read/obstetrics-gynecology-beckmann-7th/chapter-
19/ectopic-pregnancy> (visited on March 27, 2014); See S.  Geoffrey, et al., IN VITRO
FERTILIZATION: THE A.R.T.* OF MAKING BABIES (*ASSISTED REPRODUCTIVE
TECHNOLOGY) 33 (4th Ed. 2013).

[236]
 The American College of Obstetricians and Gynecologiests, Frequently Asked
Questions, FAQ155: Pregnancy, available at (visitedon March 24, 2014); See C. Beckman,
et al., OBSTETRICS AND GYNECOLOGY (7th ed. ), available at <
https://www.inkling.com/read/obstetrics-gynecology-beckmann-7th/chapter-
19/ectopic-pregnancy> (visited on March 27, 2014).

[237]
 Id.

[238]
 Id. See  S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING BABIES
(*ASSISTED REPRODUCTIVE TECHNOLOGY) 50 (4th Ed. 2013).

[239]
 Id.
[240]
 Id.

[241]
 Id.

[242]
 See K. Contraception: Mechanism of action of emergency contraception, 82(5):404-9
(2010) available at  (visited on March 24, 2014); See also World Health Organization
Website, Emergency Contraception Fact Sheet, July 2012, , (visited on March 24, 2014).

[243]
 See Alliance for the Family Foundation, et al.’s Memorandum, pp. 134-136.

[244]
 Center for Disease Control and Prevention, What is Assisted Reproductive
Technology, (visited  March 24, 2014).

[245]
 National Institute of Child Health and Human Development, Assisted Reproductive
Technologies, , (visited March 24, 2014).

[246]
 See S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING BABIES
(*ASSISTED REPRODUCTIVE TECHNOLOGY) 69-89 (4th Ed. 2013); See  also IVF - What is
in vitro fertilisation (IVF) and how does it work? Human Fertilisation Embryology
Authority (visited March 27, 2014).

[247]
  See S. Geoffrey, et al., IN VITRO FERTILIZATION: THE A.R.T.* OF MAKING BABIES
(*ASSISTED REPRODUCTIVE TECHNOLOGY) 90-114 (4th Ed. 2013); See also IVF - What is
in vitro fertilisation (IVF) and how does it work? Human Fertilisation Embryology
Authority (visited March 27, 2014).

[248]
 Id.

[249]
 See also IVF - What is in vitro fertilisation (IVF) and how does it work? Human
Fertilisation Embryology Authority (visited March 27, 2014).

[250]
 See for example Abstract of N Darlington and P Matson, The Fate of cryopreserved
human embryos approaching their legal limit of storage within a West Australian in-
vitro fertilization clinic, Human Reproduction 14(9),2343-4 (1999), (visited March 27,,
2014); (See also abstract by R. Nachtigall et al., How couples who have undergone in
vitro fertilization decide what to do with surplus frozen embryos  <
http://www.researchgate.net/publication/26760504_How_couples_who_have_underg
one_in_vitro_fertilization_decide_what_to_do_with_surplus_frozen_embryos> (visited
March 27, 2014); See also IVF - What is in vitro fertilisation (IVF) and how does it work?
Human Fertilisation Embryology Authority < March 27, 2014).

[251]
 Id.

[252]
 Ponencia, p. 45.

[253]
 Id.

[254]
 603 SCRA 621, 634-635 (2009).
[255]
 Continental Steel v. Montano, 603 SCRA 621, 634-635 (2009).

[256]
 Rep. Act No. 9711. Section 5(h) (2009).

[257]
 HP Rang, et al., Rang and Dale’s Pharmacology 37(7th ed. 2012).

[258]
 Id at 37-38.

[259]
 Id. at 39-41.

[260]
 Id. at 39-41.

[261]
 MIMS, Philippines, Aspilets ,http://www.mims.com/Philippines/drug/info/aspilets-
aspilets-

ec/?q=aspirin&type=brief> (visited March 25, 2014).

[262]
 Id.

[263]
 MIMS, Philippines,

(visited March 25, 2014).

[264]
 Id.

[265]
 See Abstract JW, Gardner, Death by water intoxication, MIL MED.  167(5), 432-4
(2002) , (visited March 24, 2014).

[266]
Monthly Prescribing Reference (MPR) (visited April 3, 2014).

[267]
  See Pia Cayetano, Memorandum, rollo (G.R. No. 204819), vol. 4, p. 3041.

[268]
 Id. at 3045.

[269]
 See Morfe v. Mutuc, G.R. L-20387, 22 SCRA 424, January 31, 1968 [En Banc, J.
Fernando]; See also
Ermita-Malata Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, G.R.
L-24693, 20 SCRA 849, July 31, 1967. [En Banc, J. Fernando].

[270]
 Philippine Drug Formulary: Essential Drugs List, Vol. 7, 2008. 78-80.

[271]
 Id. at vii-viii.

[272]
 Id. at 146.

[273]
 Rep. Act No. 9711. Section 5(h) (2009).

[274]
 See Declaration of Geneva (1948). Adopted by the General Assembly of World
Medical Association at Geneva Switzerland, September 1948. The Philippine Medical
Association is a member of the World Medical Association. (visited April 4, 2014); See
also Hippocratic Oath, available at: (visited April 4, 2014).

[275]
 R Cook, and B Dickens, The Growing Abuse of Conscientious Objection, VIRTUAL
MENTOR: ETHICS JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION, 8(5), 337-340
(2006).  (The article cites the World Medical Association’s Declaration of Geneva
available at ); See also R Cook, et al.  REPRODUCTIVE HEALTH AND HUMAN RIGHTS:
INTEGRATING MEDICINE, ETHICS AND LAW, 139-142, 213-214, 291-292 (2003).  See  Also
B Dickens and R Cook, The Scope and Limits of Conscientious Objection, Int. J. Gynaecol
Obstet. 71,71-77 (2000); See also J Savulescu Conscientious objection in medicine British
Medical Journal, 332, 294-297 (2006).

[276]
 J. Morrison and M. Allekotte, Duty First: Towards Patient-Centered Care and
Limitations on the Right to Refuse for Moral, Religious, or Ethical Reasons. AVE MARIA
LAW REVIEW, Vol. 9, No. 1, pp. 141-184 (2010).

[277]
 R. Cook and B. Dickens, Op-Ed The Growing Abuse of Conscientious Objection. ETHICS
JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION. Vol. 8 No. 5, pp.337-340 (2006).

[278]
 Rep. Act  No. 10354, Section 4(q).

[279]
 See M.  Lindenbaum, Religious Conscientious Objection and the Establishment Clause
in the Rehnquist Court: Seeger, Welsh, Gillette, and § 6(j) Revisited, 36 Colum. J.L. & Soc.
Probs. 237, 263 (This article discussed Supreme Court decisions interpreting Section 6(j)
of the Military Selective Service Act, which provided an exemption from services in  the
United States army for those “who, by religious training and belief [are] conscientiously
opposed to war in any form.”).

[280]
 CONSTITUTION, Article III, section 5.

[281]
 CONSTITUTION, Article III, section 5. No law shall be made respecting an
establishment of religion x x

x.

[282]
 CONSTITUTION, Article II, section 6.

[283]
 CONSTITUTION, Article III, section 5. x x x The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be
allowed x x x.

[284]
 G.R. No. 119673. 259 SCRA 529 (1996) [En Banc, Per J. Puno].

[285]
 Id. at 544.

[286]
 Estrada v. Escritor, A.M. No. P-02-1651, 408 SCRA 1 (2003) [En Banc, Per J. Puno].

[287]
 Id. at167-168.
[288]
 Id. at106-107, citing Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.

[289]
 (visited  March 23, 2014).

[290]

religion/what_is_religion> (visited March 23, 2014).

[291]
 See I. Howerth, What is Religion? INTERNATIONAL JOURNAL OF ETHICS, 13(2),
(1903). available at (visited March 22, 2014).

[292]
 Aglipay v. Ruiz, 64 Phil 201 (1937) [Per J. Laurel].

[293]
 Id. at 206.

[294]
 See The Concept of Religion, 107 Yale L.J. 791 (1997) and its discussions on
Wittgenstein.

[295]
 De Venecia, et al. Comment-in-Intervention, rollo (G.R. No. 205491), vol. 1, p.
376. citing Gary Wills, Papal Sin: Structures of Deceit, (New York: Image, 2001), at 75.

[296]
 Id.  citing Truth & Consequence, Wills at 7.

[297]
 Id. at 377  citing Gary Wills, Papal Sin: Structures of Deceit, (New York: Image, 2001),
at 88-89.

[298]
 Id. at 378.

[299]
 Id. citing  Gary Wills, Papal Sin: Structures of Deceit,  (New York: Image, 2001), at
94, and noting that these were Father John Ford and Cardinal Ottaviani, working with an
ultraconservative theologian, Germain Grisez, whom they had brought into the
committee’s work for that purpose, and whom the Pro-Life Petition cites in pars. 52-53,
at 24.

[300]
 Id. citing Gary Wills, Papal Sin: Structures of Deceit,  (New York: Image, 2001), at 95.

[301]
 Id. at 376, citing Gary Wills, Papal Sin: Structures of Deceit, (New York: Image, 2001),
at 95-96.

[302]
 De Venecia, et al. Comment-in-Intervention, rollo (G.R. No. 205491), vol. 1, p.
382. citing  Gary Wills, Papal Sin: Structures of Deceit, (New York: Image, 2001), at 73-82.

[303]
 Id. at 379-388 citing Gary Wills, Papal Sin: Structures of Deceit, (New York: Image,
2001), at 89-96.

[304]
 Id. at 390, citing Truth & Consequence, Wills at 7.

[305]
 See D.  Gonzales, FUNDAMENTALISM AND PLURALISM IN THE CHURCH, ed., 94-96
(2004):
Fundamentalist beliefs were first articulated with the publication of a series of twelve
pamphlets published between 1910 and 1915 with the title, The Fundamentals. North
American fundamentalist beliefs are generally characterized by four features:
evangelism, inerrancy, dispensational premillennialism, and separatism. (Dumestre, 49).

1. Evangelism – the compulsion to evangelize comes from the importance that

fundamentalists place in “being saved.” If being saved is the sure way to heaven,
then it is incumbent upon the “saved” to bring Jesus Christ to the “lost.”
2. Inerrancy – fundamentalists believe in an inerrant interpretation of the Bible. In
other words, no part of the Bible can be in error.
3. Dispensational Premillenialism means that salvation will be dispensed to the
Christian faithful at the coming of Christ prior to the millennium (the thousand-
year reign of Christ)(Mt 24, 1 Th 4).
4. Separatism – dissenting opinions are not tolerated by fundamentalists; their
primary value is uniformity of belief and practice.

[306]
 Millennium Saint Foundation, Inc. Memorandum, p. 26.

[307]
 Couples for Christ Petition, rollo (G.R. No. 207172), vol. 1, p 31.

[308]
 Ponencia, p. 78.

[309]
 CONSTITUTION, Article XV, section 3. The State shall defend:

1. The right of spouses to found a family in accordance with their religious

convictions and the demands of responsible parenthood;

[310]
 Morfe v. Mutuc, 130 Phil 415 (1968) [Per J. Fernando].

[311]
 Id. at 435-436.

[312]
 See also Note on Reproductive Technology and The Procreation Rights of the
Unmarried, 98 Harv. L. Rev. 669, (1985).

[313]
 See P. Scheininger, Legal Separateness, Private Connectedness: An Impediment to
Gender Equality in the Family, 31 Colum. J.L. & Soc. Probs. 283, 304.

[314]
 Ponencia, pp. 79-80.

[315]
 J. Reyes, Concurring and Dissenting Opinion, p. 6.

[316]
 Id. at 78.

[317]
 Id. at 79.

[318]
 Garcia v. Executive Secretary,  G.R. No. 100883, December 2, 1991, 204 SCRA 516,
523 [En Banc, per J. Cruz]

[319]
 See Del Castillo, J., Concurring and Dissenting Opinion, pp. 19-35.

[320]
  Cited as 361 Phil. 73 (1999).

[321]
 Cited as 361 Phil. 73, 88 (1999).

[322]
 Del Castillo, J., Concurring and Dissenting Opinion, p. 20.

[323]
 Id. at 26-27.

[324]
 361 Phil. 73 (1999); 301 SCRA 96, 112.

[325]
 CONSTITUTION, Article, VII, section 17.

[326]
 Angara v. Electoral Commission, 63 Phil. 139, 156 (1936) [Per J. Laurel, En Banc].

[327]
 CONSTITUTION, Article VIII, section 1.
[328]
 CONSTITUTION, Article VIII, section 1.

[329]
 Comment-in-Intervention, Representative Edcel B. Lagman, rollo  (G.R. No. 204819),
vol. 1, p. 198 (“from the 11th Congress to the current 15th Congress x x x [which
included] the latest versions of the Reproductive Health Bills (House Bill No. 4244,
entitled "An Act Providing for a Comprehensive Policy on Responsible Parenthood,
Reproductive Health, and Population and Development and For Other Purposes" in the
House of Representatives and Senate Bill No. 2865, entitled "An Act Providing for a
National Policy on Reproductive Health and Population and Development" in the
Senate.) See also Office of the Solicitor General Memorandum, pp. 6 and 11.

[330]
 (In a UNICEF study covering the period 1990-2011, it was estimated that “in the
Philippines, 13 mothers die every day from pregnancy-related complications. An
estimated 5,000 maternal deaths occur annually – and may be on the increase. The
most recent health survey indicated that the maternal mortality ratio had increased,
from 162 per 100,000 live births in 2006 to 221 in 2011)” See WHO Maternal and
Perinatal Health Profile for the Western Pacific Region, Philippines (visited March 21,
2014); (visited March 25, 2014); (Maternal death is defined as “...the death of a women
within 42 days of the end of pregnancy, regardless of duration or site of pregnancy,
from any cause related to or aggravated by the pregnancy or its management, but not
from accidental (e.g. auto accident or gunshot wound) or incidental causes. (e.g.
concurrent malignancy)”, See Hernandez, Jr., Emilio et.al. Standards of Newborn  Care. 4
(3rd Ed. 2008) Philippine Society of Newborn Medicine, Philippine Pediatric Society.

[331]
 (In 2008, the still-birth rate was 14.4 per 1000 pregnancies of at least 7 months
duration.) See (visited  April 6, 2014).

[332]
 (Neonatal death is defined as “Death of live born neonate before the neonate
becomes 28 days (up to and including 27 days, 23 hours, 59 minutes from the moment
of birth.)”), See Hernandez, Jr., Emilio et.al. Standards of Newborn  Care. 3 (3rd ed. 2008)
Philippine Society of Newborn Medicine, Philippine Pediatric Society.;(The 2008 National
Demographic and Health Survey estimates that the neonatal mortality rate within the 5
preceding years was 16 deaths per 1000 live births.)

[333]
 (Demand for family planning: poorest 20% quintile--about 60%, richest 20% quintile,
70%; Access to skilled birth attendance: poorest 20% quintile—about 25%, richest 20%
quintile—about 90%; Delivery in a health facility: poorest—about 10%, richest—about
75%; Antenatal care utilization: lowest quintile—77.1%, highest quintile—98.3%)
See (visited April 3, 2014) through May 2013; See also R.  Lavado L. Lagrada, Are
Maternal and Child Care Programs Reaching the Poorest Regions in the Philippines?
Discussion Paper Series No. 2008-30, (November 2008) (visited April 3, 2014); 2008
National Demographic and Health Survey, Demographic and Health Surveys
Program, (visited April 3, 2014);

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5.  Hecker’s veto

H. Freedom of Religion (Sec. 5, Art. III)

i.   Two (2) guarantees
1.  Non-establishment clause
a.  Sec. 5, Art. III (freedom of religion)
b.  Sec. 2(5), Art. IX-C (no religious political party)
c.  Sec. 5(2), Art. VI (no sectoral representative from
religious)
d.  Sec. 29(2), Art. VI (prohibition against appropriation
for sectarian benefit
e.  Cases:
e.i.      Islamic Da’wah Council vs. ES, July 9, 2003
e.ii.   Austria vs. NLRC, August 16, 1999
e.iii.  Taruc vs. Bishop de la Cruz, March 10, 2005
e. iv. Pastor Dionisio V. Austria v. NLRC, G.R. No.
124382, August 16, 1999
2.  Freedom of religious profession and worhip
a.  Right to believe
b.  Right to act on one’s belief
3.  “Benevolent neutrality”
a.  Ebralinag vs. Superintendent, 219 SCRA 256
b.  Estrada vs. Escritor, August 4, 2003
I.   Liberty of Abode and Travel (Sec. 6, Art. III)
i.   Rule and limitation
ii.  Marcos vs. Manglapus, supra.
     * Office of the Administrative Services – Office of the Court
Administrator v. Judge Ignacio B. Macarine, A.M. No. MTJ-10-1770, 18
July 2012
      * Efraim C. Genuino, et al., v. Hon. Leila M. De Lima, et., al., G.R.
Nos. 199034, 199046 and 197930, April 17, 2018
J.   Right to Information (Sec. 7, Art. III)
i.   Scope and exception
1.  Chavez vs. PEA, July 9, 2002
2.  BA-RA vs. COMELEC, May 4, 2007
3. Chavez v. PCGG, 299 SCRA 744, December 9, 1998
K. Right of Form Association (Sec. 8, Art. III)
          i.        Scope
          ii.       Right to strike of government employees
1.      SSSEA vs. CA, 175 SCRA 686
L. Freedom of  Assembly
              i. BAYAN v. Ermita, G.R. No. 169838, April 25, 2006
                             Batas Pambansa Blg. 880 – The Public Assembly Act of 1985
 
A.    Eminent Domain (Sec. 9, Art. III)
B.    Non-impairment clause (Sec. 10, Art. III)
i.        Scope

e.i.      Islamic Da’wah Council vs. ES, July 9, 2003

453 Phil. 440

EN BANC

[ G.R. No. 153888, July 09, 2003 ]

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., HEREIN REPRESENTED BY PROF.

ABDULRAFIH H. SAYEDY, PETITIONER, VS. OFFICE OF THE EXECUTIVE SECRETARY OF
THE OFFICE OF THE PRESIDENT OF THE PHILIPPINES, HEREIN REPRESENTED BY HON.
ALBERTO G. ROMULO, EXECUTIVE SECRETARY, AND THE OFFICE ON MUSLIM AFFAIRS,
HEREIN REPRESENTED BY ITS EXECUTIVE DIRECTOR, HABIB MUJAHAB HASHIM,
RESPONDENTS.

DECISION

CORONA, J.:

Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the

Philippines, Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46,
s. 2001 and the prohibition of herein respondents Office of the Executive Secretary and
Office of Muslim Affairs (OMA) from implementing the subject EO.

Petitioner IDCP, a corporation that operates under Department of Social Welfare and
Development License No. SB-01-085, is a non-governmental organization that extends
voluntary services to the Filipino people, especially to Muslim communities. It claims to
be a federation of national Islamic organizations and an active member of international
organizations such as the Regional Islamic Da'wah Council of Southeast Asia and the
Pacific (RISEAP)[1] and The World Assembly of Muslim Youth. The RISEAP accredited
petitioner to issue halal[2] certifications in the Philippines. Thus, among the functions
petitioner carries out is to conduct seminars, orient manufacturers on halal food and
issue halal certifications to qualified products and manufacturers.

Petitioner alleges that, on account of the actual need to certify food products as halal
and also due to halal food producers' request, petitioner formulated in 1995 internal
rules and procedures based on the Qur'an[3] and the Sunnah[4] for the analysis of food,
inspection thereof and issuance of halal certifications. In that same year, petitioner
began to issue, for a fee, certifications to qualified products and food manufacturers.
Petitioner even adopted for use on its halal certificates a distinct sign or logo registered
in the Philippine Patent Office under Patent No. 4-2000-03664.

On October 26, 2001, respondent Office of the Executive Secretary issued EO

46[5] creating the Philippine Halal Certification Scheme and designating respondent OMA
to oversee its implementation. Under the EO, respondent OMA has the exclusive
authority to issue halal certificates and perform other related regulatory activities.

On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal `Halal'
Certification" was published in the Manila Bulletin, a newspaper of general circulation.
In said article, OMA warned Muslim consumers to buy only products with its official
halal certification since those without said certification had not been subjected to
careful analysis and therefore could contain pork or its derivatives. Respondent OMA
also sent letters to food manufacturers asking them to secure the halal certification only
from OMA lest they violate EO 46 and RA 4109.[6] As a result, petitioner lost revenues
after food manufacturers stopped securing certifications from it.

Hence, this petition for prohibition.

Petitioner contends that the subject EO violates the constitutional provision on the
separation of Church and State.[7] It is unconstitutional for the government to formulate
policies and guidelines on the halal certification scheme because said scheme is a
function only religious organizations, entity or scholars can lawfully and validly perform
for the Muslims. According to petitioner, a food product becomes halal only after the
performance of Islamic religious ritual and prayer. Thus, only practicing Muslims are
qualified to slaughter animals for food. A government agency like herein respondent
OMA cannot therefore perform a religious function like certifying qualified food
products as halal.

Petitioner also maintains that the respondents violated Section 10, Article III of the 1987
Constitution which provides that "(n)o law impairing the obligation of contracts, shall be
passed." After the subject EO was implemented, food manufacturers with existing
contracts with petitioner ceased to obtain certifications from the latter.

Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article
XIII of the 1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Sec. 15. The State shall respect the role of independent people's organizations to enable
the people to pursue and protect, within the democratic framework, their legitimate
and collective interests and aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with demonstrated capacity

to promote the public interest and with identifiable leadership, membership, and
structure.

Sec. 16. The rights of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even
consulting Muslim people's organizations like petitioner before it became effective.

We grant the petition.

OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the
integration of Muslim Filipinos into the mainstream of Filipino society with due regard
to their beliefs, customs, traditions, and institutions."[8] OMA deals with the societal,
legal, political and economic concerns of the Muslim community as a "national cultural
community" and not as a religious group. Thus, bearing in mind the constitutional
barrier between the Church and State, the latter must make sure that OMA does not
intrude into purely religious matters lest it violate the non-establishment clause and the
"free exercise of religion" provision found in Article III, Section 5 of the 1987
Constitution.[9]

Freedom of religion was accorded preferred status by the framers of our fundamental
law. And this Court has consistently affirmed this preferred status, well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with the common good."[10]

Without doubt, classifying a food product as halal is a religious function because the
standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the
exclusive power to classify food products as halal, EO 46 encroached on the religious
freedom of Muslim organizations like herein petitioner to interpret for Filipino Muslims
what food products are fit for Muslim consumption. Also, by arrogating to itself the task
of issuing halal certifications, the State has in effect forced Muslims to accept its own
interpretation of the Qur'an and Sunnah on halal food.

To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues
that the freedom of religion is subservient to the police power of the State. By
delegating to OMA the authority to issue halal certifications, the government allegedly
seeks to protect and promote the muslim Filipinos' right to health, and to instill health
consciousness in them.

We disagree.

Only the prevention of an immediate and grave danger to the security and welfare of
the community can justify the infringement of religious freedom.[11] If the government
fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic framework like ours, the
State must minimize its interference with the affairs of its citizens and instead allow
them to exercise reasonable freedom of personal and religious activity.

In the case at bar, we find no compelling justification for the government to deprive
Muslim organizations, like herein petitioner, of their religious right to classify a product
as halal, even on the premise that the health of Muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal certifications. The
protection and promotion of the Muslim Filipinos' right to health are already provided
for in existing laws and ministered to by government agencies charged with ensuring
that food products released in the market are fit for human consumption, properly
labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of
Muslims.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect
slaughtered animals intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as "The Consumer Act
of 1992," gives to certain government departments the duty to protect the interests of
the consumer, promote his general welfare and to establish standards of conduct for
business and industry.[12] To this end, a food product, before its distribution to the
market, is required to secure the Philippine Standard Certification Mark after the
concerned department inspects and certifies its compliance with quality and safety
standards.[13]

One such government agency designated by RA 7394 is the Bureau of Food and Drugs
(BFD) of the Department of Health (DOH). Under Article 22 of said law, BFD has the duty
to promulgate and enforce rules and regulations fixing and establishing a reasonable
definition and standard of identity, a standard of quality and a standard of fill of
containers for food. The BFD also ensures that food products released in the market are
not adulterated.[14]

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is
tasked to protect the consumer against deceptive, unfair and unconscionable sales acts
or practices as defined in Article 50.[15] DTI also enforces compulsory labeling and fair
packaging to enable the consumer to obtain accurate information as to the nature,
quality and quantity of the contents of consumer products and to facilitate his
comparison of the value of such products.[16]

With these regulatory bodies given detailed functions on how to screen and check the
quality and safety of food products, the perceived danger against the health of Muslim
and non-Muslim Filipinos alike is totally avoided. Of great help are the provisions on
labeling of food products (Articles 74 to 85)[17] of RA 7394. In fact, through these labeling
provisions, the State ably informs the consuming public of the contents of food products
released in the market. Stiff sanctions are imposed on violators of said labeling
requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids Muslim
consumers in differentiating food from non-food products. The NMIC guarantees that
the meat sold in the market has been thoroughly inspected and fit for consumption.
Meanwhile, BFD ensures that food products are properly categorized and have passed
safety and quality standards. Then, through the labeling provisions enforced by the DTI,
Muslim consumers are adequately apprised of the products that contain substances or
ingredients that, according to their Islamic beliefs, are not fit for human intake. These
are the non-secular steps put in place by the State to ensure that the Muslim
consumers' right to health is protected. The halal certifications issued by petitioner and
similar organizations come forward as the official religious approval of a food product fit
for Muslim consumption.

We do not share respondents' apprehension that the absence of a central

administrative body to regulate halal certifications might give rise to schemers who, for
profit, will issue certifications for products that are not actually halal. Aside from the
fact that Muslim consumers can actually verify through the labels whether a product
contains non-food substances, we believe that they are discerning enough to know who
the reliable and competent certifying organizations in their community are. Before
purchasing a product, they can easily avert this perceived evil by a diligent inquiry on
the reliability of the concerned certifying organization.

WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is hereby

declared NULL AND VOID. Consequently, respondents are prohibited from enforcing the
same.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez,

Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Puno, J., concur with the opinion of J., Vitug.
Vitug, J., please see Separate Opinion.
Quisumbing, Sandoval-Gutierrez, J., on official leave

[1]
 According to the petitioner, RISEAP is a federation of Muslim organizations in non-
Muslim countries where Muslims are minorities in Asia and the Pacific.

[2]
 Halal is a Muslim term that means lawful food, things, manners and actions allowed
by God for mankind and enjoined upon the believers (Petition, p. 6; Rollo, p. 8). It is a
term that means "to slaughter for food" (WEBSTER'S THIRD INTERNATIONAL
DICTIONARY, 1986 Ed., p. 1021).

[3]
 The book composed of writings accepted by Muslims as revelations made to
Mohammad by Allah and the divinely authorized basis for the religious, social, civil,
commercial, military, and legal regulations of the Islamic world (WEBSTER'S THIRD
INTERNATIONAL DICTIONARY, 1986 Ed., p. 1255).

[4]
 The body of Islamic custom and practice based on Mohammad's words and deeds
(WEBSTER'S THIRD INTERNATIONAL DICTIONARY, 1986 Ed., p. 2292).
[5]
 EXECUTIVE ORDER NO. 46

AUTHORIZING THE OFFICE ON MUSLIM AFFAIRS TO UNDERTAKE PHILIPPINE HALAL

CERTIFICATION

WHEREAS, it is the policy of the State to protect and promote the Filipino' right to
health and instill health consciousness among them;

xxx xxx xxx

WHEREAS, the establishment of a Philippine Halal Certification Scheme for food and
non-food products will contribute toward:

1. The establishment of a national standards and certification scheme for halal food
and non-food products and a national standards and accreditation scheme for
establishments;

2. The opening of new markets and the development of strong consumer

awareness of, and confidence in, Philippine halal food and non-food products;

3. The development and promotion of Philippine industries through the increase in

the volume and value of Philippine halal food and non-food exports; and

4. The development of Philippine products which comply with halal standards

established in accordance with Shari'ah Law and which are highly competitive
and acceptable to the Muslim Market;

xxx xxx xxx

WHEREAS, the establishment of a Philippine Halal Certification Scheme is in accordance

with our country's commitments to the World Trade Organization (WTO), the Brunei-
Indonesia-Malaysia-Philippines East ASEAN Growth Area (BIMP-EAGA), the ASEAN Free
Trade Area (AFTA), The Asia Pacific Economic Cooperation (APEC), and the Association
of Southeast Asian Nations (ASEAN), specifically, the Consultative Committee on
Standards and Quality and the Senior Officials Meeting-ASEAN Ministers on Agriculture
and Forestry (SOM-AMAF), and with the efforts of SOM-AMAF to provide mechanisms
for identifying halal food and non-food products in order that ASEAN member countries
may better comply with international halal standards and processes;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by

virtue of the powers vested in me by law and the Constitution, do hereby order the
following:

SECTION 1. Designation of the Office on Muslim Affairs to Undertake Philippine Halal

Certification and Regulatory Activities. - The Office on Muslim Affairs is hereby
designated to undertake Philippine halal certification and regulatory activities. The
Office on Muslim Affairs shall oversee the Philippine Halal Certification Scheme.

SECTION 2.  Halal Certification and Regulatory Functions. - The halal certification and
regulatory functions to be exercised by the Office on Muslim Affairs shall involve the
following powers and functions:

1. Formulate policies, guidelines and developmental goals within the context of the
Philippine Halal Certification Scheme;

2. Plan, facilitate, and supervise the implementation and monitoring of components

and developmental activities relating to the Philippine Halal Certification Scheme;

3. Ensure strict implementation of and compliance with halal standards and

guidelines;

4. Coordinate with appropriate agencies, both at local and international level as

may be required, to ensure the enforcement of the Philippine Halal Certification
Scheme and the acceptance of Philippine products certified under the Philippine
Halal Certification Scheme;

5. Issue Halal Certificates to applicants;

6. Validate whether imported halal products complied with halal standards; and

7. Adopt measures to ensure the success of the Philippine Halal Certification

Scheme.

SECTION 3. Training and Research. - A halal training and research facility to support the
Philippine Halal Certification Scheme shall be established. Said facility shall be operated
under the auspices of the Office on Muslim Affairs.

SECTION 4. Funding.  - Funds necessary for the initial halal certification and regulatory
functions of the Office on Muslim Affairs shall be sourced from the Office of the
President, upon submission by the Office on Muslim Affairs of its work and financial
plan. Subsequent annual funding requirement shall be sourced from the General
Appropriations Act and from the income generated by the Office on Muslim Affairs.

SECTION 5. Rules and Regulations; Sanctions.- The Office on Muslim Affairs shall

formulate rules and regulations, and impose sanctions as may be allowed by law to
ensure compliance therewith, for the successful implementation of the Philippine Halal
Certification Scheme; Provided, that the Office on Muslim Affairs shall consider the
pertinent provisions of Republic Act No. 4109 in the formulation and eventual
implementation of said rules and regulations.

SECTION 6. Repealing Clause. - All executive issuances, orders, rules and regulations
which are inconsistent with any provision of this Executive Order are hereby revoked,
amended or modified accordingly.

SECTION 7. Effectivity.  - This Executive Order shall take effect fifteen (15) days after its
publication in two (2) newspapers of national circulation.

City of Manila, October 26, 2001.

By the President:
ALBERTO ROMULO (Sgd.)

Executive Secretary
[6]
 An Act to Convert the Division of Standards Under the Bureau of Commerce into A
Bureau of Standards, to Provide for the Standardization and/or Inspection of Products
and Imports of the Philippines and for other Purposes.

[7]
 Section 6, Article II of the 1987 Philippine Constitution provides that:

Sec. 6. The separation of the Church and State shall be inviolable.

[8]
 Section 1, EO 697.

[9]
 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.

[10]
 Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 [1996] citing Victoriano vs.
Elizalde Rope Workers Union, 59 SCRA 54 [1974].

[11]
 Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72 [1974].

[12]
 Article 2, RA 7394.

[13]
 Article 14, RA 7394.

[14]
 Article 23, RA 7394.

[15]
 ARTICLE 50. Prohibition Against Deceptive Sales Acts or Practices. -- A deceptive act
or practice by a seller or supplier in connection with a consumer transaction violates this
Act whether it occurs before, during or after the transaction. An act or practice shall be
deemed deceptive whenever the producer, manufacturer, supplier or seller, through
concealment, false representation or fraudulent manipulation, induces a consumer to
enter into a sales or lease transaction of any consumer product or service.

Without limiting the scope of the above paragraph, the act or practice of a seller or
supplier is deceptive when it represents that:
a) a consumer product or service has the sponsorship, approval, performance,
characteristics, ingredients, accessories, uses, or benefits it does not have;
b) a consumer product or service is of a particular standard, quality, grade, style,
or model when in fact it is not;
c) a consumer product is new, original or unused, when in fact, it is in a
deteriorated, altered, reconditioned, reclaimed or second-hand state;
d) a consumer product or service is available to the consumer for a reason that is
different from the fact;
e) a consumer product or service has been supplied in accordance with the
previous representation when in fact it is not;
f) a consumer product or service can be supplied in a quantity greater than the
 supplier intends;
g) a service, or repair of a consumer product is needed when in fact it is not;
h) a specific price advantage of a consumer product exists when in fact it does
not;
i) the sales act or practice involves or does not involve a warranty, a disclaimer of
warranties, particular warranty terms or other rights, remedies or obligations if
the indication is false; and
j) the seller or supplier has a sponsorship, approval, or affiliation he does not
have.
[16]
 Article 74, RA 7394.

[17]
 CHAPTER IV

LABELING AND FAIR PACKAGING

ARTICLE 74. Declaration of Policy. -- The State shall enforce compulsory labeling, and fair
packaging to enable the consumer to obtain accurate information as to the nature,
quality and quantity of the contents of consumer products and to facilitate his
comparison of the value of such products.

ARTICLE 75. Implementing Agency. -- The Department of Trade and Industry shall
enforce the provisions of this Chapter and its implementing rules and regulations:
Provided, That with respect to food, drugs, cosmetics, devices and hazardous
substances, it shall be enforced by the concerned department.

ARTICLE 76. Prohibited Acts on Labeling and Packaging. -- It shall be unlawful for any
person, either as principal or agent, engaged in the labeling or packaging of any
consumer product, to display or distribute or to cause to be displayed or distributed in
commerce any consumer product whose package or label does not conform to the
provisions of this Chapter.

The prohibition in this Chapter shall not apply to persons engaged in the business of
wholesale or retail distributors of consumer products except to the extent that such
persons:

a) are engaged in the packaging or labeling of such products;

b) prescribe or specify by any means the manner in which such products are
packaged or labeled; or
c) having knowledge, refuse to disclose the source of the mislabeled or
mispackaged products.

ARTICLE 77. Minimum Labeling Requirements for Consumer Products. -- All consumer
products domestically sold whether manufactured locally or imported shall indicate the
following in their respective labels of packaging:

a) its correct and registered trade name or brand name;

b) its duly registered trademark;
c) its duly registered business name;
d) the address of the manufacturer, importer, repacker of the consumer product
in the Philippines;
e) its general make or active ingredients;
f) the net quality of contents, in terms of weight, measure or numerical count
rounded off to at least the nearest tenths in the metric system;
g) country of manufacture, if imported; and
h) if a consumer product is manufactured, refilled or repacked under license from
a principal, the label shall so state the fact.

The following may be required by the concerned department in accordance with the
rules and regulations they will promulgate under authority of this Act:

a) whether it is flammable or inflammable;

b) directions for use, if necessary;
c) warning of toxicity;
d) wattage, voltage or amperes; or
e) process of manufacture used if necessary.

Any word, statement or other information required by or under authority of the

preceding paragraph shall appear on the label or labeling with such conspicuousness as
compared with other words, statements, designs or devices therein, and in such terms
as to render it likely to be read and understood by the ordinary individual under
customary conditions of purchase or use.

The above requirements shall form an integral part of the label without danger of being
erased or detached under ordinary handling of the product.

ARTICLE 78. Philippine Product Standard Mark. -- The label may contain the Philippine
Product Standard Mark if it is certified to have passed the consumer product standard
prescribed by the concerned department.

ARTICLE 79. Authority of the Concerned Department to Provide for Additional Labeling
and Packaging Requirements. -- Whenever the concerned department determines that
regulations containing requirements other than those prescribed in Article 77 hereof are
necessary to prevent the deception of the consumer or to facilitate value comparisons
as to any consumer product, it may issue such rules and regulations to:

a) establish and define standards for characterization of the size of a package

enclosing any consumer product which may be used to supplement the label
statement of net quality, of contents of packages containing such products but
this clause shall not be construed as authorizing any limitation on the size,
shape, weight, dimensions, or number of packages which may be used to
enclose any product;
b) regulate the placement upon any package containing any product or upon any
label affixed to such product of any printed matter stating or representing by
implication that such product is offered for retail at a price lower than the
ordinary and customary retail price or that a price advantage is accorded to
purchases thereof by reason of the size of the package or the quantity of its
contents;
c) prevent the nonfunctional slack-fill of packages containing consumer products.

For purposes of paragraph (c) of this Article, a package shall be deemed to be

nonfunctionally slack-filled if it is filled to substantially less than its capacity for reasons
other than (1) protection of the contents of such package, (2) the requirements of
machines used for enclosing the contents in such package, or (3) inherent characteristics
of package materials or construction being used.

ARTICLE 80. Special Packaging of Consumer Products for the Protection of Children. --
The concerned department may establish standards for the special packaging of any
consumer product if it finds that:

a) the degree or nature of the hazard to children in the availability of such

product, by reason of its packaging, is such that special packaging is required to
protect children from serious personal injury or serious illness resulting from
handling and use of such product; and
b) the special packaging to be required by such standard is technically feasible,
practicable and appropriate for such product. In establishing a standard under
this Article, the concerned department shall consider:
1) the reasonableness of such standard;
2) available scientific, medical and engineering data concerning special packaging
and concerning accidental, ingestions, illnesses and injuries caused by
consumer product;
3) the manufacturing practices of industries affected by this Article; and
4) the nature and use of consumer products.

ARTICLE 81. Price Tag Requirement. -- It shall be unlawful to offer any consumer product
for retail sale to the public without an appropriate price tag, label or marking publicly
displayed to indicate the price of each article and said products shall not be sold at a
price higher than that stated therein and without discrimination to all buyers: Provided,
That lumber sold, displayed or offered for sale to the public shall be tagged or labeled by
indicating thereon the price and the corresponding official name of the wood: Provided,
further, That if consumer products for sale are too small or the nature of which makes it
impractical to place a price tag thereon price list placed at the nearest point where the
products are displayed indicating the retail price of the same may suffice.

ARTICLE 82. Manner of Placing Price Tags. -- Price tags, labels or markings must be
written clearly, indicating the price of the consumer product per unit in pesos and
centavos.

ARTICLE 83. Regulations for Price Tag Placement. -- The concerned department shall
prescribe rules and regulations for the visible placement of price tags for specific
consumer products and services. There shall be no erasures or alterations of any sort of
price tags, labels or markings.

ARTICLE 84. Additional Labeling Requirements for Food. -- The following additional
labeling requirements shall be imposed by the concerned department for food:

a) expiry or expiration date, where applicable;

b) whether the consumer product is semi-processed, fully processed, ready-to-
cook, ready-to-eat, prepared food or just plain mixture;
c) nutritive value, if any;
d) whether the ingredients used are natural or synthetic, as the case may be;
e) such other labeling requirements as the concerned department may deem
 necessary and reasonable.

ARTICLE 85. Mislabeled Food. -- A food shall also be deemed mislabeled:

a) if its labeling or advertising is false or misleading in any way;

b) if it is offered for sale under the name of another food;
c) if it is an imitation of another food, unless its label bears in type of uniform size
and prominence, the word "imitation" and, immediately thereafter, the name
of the food imitated;
d) its containers is so made, formed, or filled as to be misleading;
e) if in package form unless it bears a label conforming to the requirements of this
Act: Provided, That reasonable variation on the requirements of labeling shall
be permitted and exemptions as to small packages shall be established by the
regulations prescribed by the concerned department of health;
f) if any word, statement or other information required by or under authority of
this Act to appear on the principal display panel of the label or labeling is not
prominently placed thereon with such conspicuousness as compared with
other words, statements, designs or devices in the labeling and in such terms as
to render it likely to be read and understood by the ordinary individual under
customary conditions of purchase and use;
g) if it purports to be or is represented as a food for which a definition or standard
of identity has been prescribed unless:
1) it conforms to such definition and standard; and
2) its labels bears the name of the food specified in the definition
or standards, and insofar as may be required by such regulations, the common
names of optional ingredients other than spices, flavoring and coloring, present
in such food;
h) if it purports to be or represented as:
1) a food for which a standard of quality has been prescribed by
regulations as provided in this Act and its quality fall below such
standard, unless its label bears in such manner and form as such
regulations specify, a statement that it falls below such standard; or
2) a food for which a standard or standards or fill of container have been
prescribed by regulations as provided by this Act and it falls below the
standard of fill of container applicable thereto, unless its label bears,
in such manner and form as such regulations specify, a statement that
it falls below such standard;
i) if it is not subject to the provisions of paragraph (g) of this Article unless its
label bears:
1) the common or usual name of the food, if there be any; and
2) in case it is manufactured or processed from two or more ingredients,
the common or usual name of such ingredient; except the spices,
flavorings and colorings other than those sold as such, may be
designated as spices, flavorings and colorings without naming each:
Provided, That to the extent that compliance with the requirement of
clause (2) of this paragraph is impracticable or results in deception or
unfair competition, exemptions shall be established by regulations
promulgated by the concerned department of health;
j) if it purports to be or is represented for special dietary uses, unless its label
bears such information concerning its vitamin or mineral or other dietary
 properties as the concerned department determines to be, or by regulations
prescribed as necessary in order fully to inform purchasers as its value for such
uses;
k) if it bears or contains any artificial flavoring, artificial coloring, or chemical
preservative, unless it bears labeling, stating that fact: Provided, That to the
extent that compliance with the requirements of this paragraph is
impracticable, exemptions shall be established by regulations promulgated by
the concerned department. The provisions of this paragraph or paragraphs (g)
and (i) with respect to the artificial coloring shall not apply in the case of butter,
cheese or ice cream.

SEPARATE OPINION

VITUG, J.:

I concur, with the understanding as so explained during the deliberations, that the halal
certification, which herein petitioner and other similar organizations have been
accredited to issue, is not taken as a compulsory requirement for muslim food
manufacturers to secure. Adequate safeguards being already in place to ensure the
safety of all food products, food manufacturers would thus have the option, decided
solely on the basis of marketing advantage, whether or not to obtain the certification on
their food products. In fine, the acquisition of halal certificates should remain optional
or only on a voluntary basis on the part of manufacturers of muslim food products.

Source: Supreme Court E-Library | Date created: December 05, 2014

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Supreme Court E-Library

e.ii.    Austria vs. NLRC, August 16, 1999

371 Phil. 340

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.

DECISION

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 latter's motor vehicle which he failed to pay to Diamada.[5] Due to
the assistance of petitioner in collecting Pastor Rodrigo's 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 latter's 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 Montaño 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 employer's 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. Sideño 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 - P 3,461.85
  Leave Pay  
D. Moral Damages - P50,000.00
E. Exemplary  
  Damages - P25,000.00
F. Attorney's 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 Ceasar's and unto God the things that
are God's."[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 petitioner's
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 employer's 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 petitioner's 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 petitioner's 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 worker's 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 body's 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
petitioner's evidence but must stand on the merits of their own defense.
The issue being the legality of petitioner's 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 employer's
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 petitioner's 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 employer's 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
employer's 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
employer's 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 employer's duly authorized representative, we find the same
unmeritorious and, as such, do not warrant petitioner's 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 employer's representatives was never really established or proven by private
respondents. Hence, there is no basis for the allegation that petitioner's act constituted
serious misconduct or that the same was an offense against the person of the
employer's 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. Petitioner's rise from the ranks disclose
that he was actually a hard-worker. Private respondents' evidence,[47] which consisted of
petitioner's Worker's 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. Cañete. 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] 
BLACK'S 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 Dev't. 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 & Dev't. 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).

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e.iii.  Taruc vs. Bishop de la Cruz, March 10, 2005

493 Phil. 292

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.

DECISION

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. Florano’s wife belonged to a political party opposed to
petitioner Taruc’s, thus the animosity between the two factions with Fr. Florano being
identified with his wife’s 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 Ceasar’s and to God what is God’s.” 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.
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e. iv. Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, August 16, 1999

371 Phil. 340

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.

DECISION

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 latter's motor vehicle which he failed to pay to Diamada.[5] Due to
the assistance of petitioner in collecting Pastor Rodrigo's 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 latter's 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 Montaño 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 employer's 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. Sideño 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 - P 3,461.85
  Leave Pay  
D. Moral Damages - P50,000.00
E. Exemplary  
  Damages - P25,000.00
F. Attorney's 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 Ceasar's and unto God the things that
are God's."[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 petitioner's
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 employer's 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 petitioner's 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 petitioner's 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 worker's 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 body's 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
petitioner's evidence but must stand on the merits of their own defense.

The issue being the legality of petitioner's 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 employer's
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 petitioner's 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 employer's 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
employer's 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
employer's 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 employer's duly authorized representative, we find the same
unmeritorious and, as such, do not warrant petitioner's 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 employer's representatives was never really established or proven by private
respondents. Hence, there is no basis for the allegation that petitioner's act constituted
serious misconduct or that the same was an offense against the person of the
employer's 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. Petitioner's rise from the ranks disclose
that he was actually a hard-worker. Private respondents' evidence,[47] which consisted of
petitioner's Worker's 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. Cañete. 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] 
BLACK'S 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 Dev't. 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 & Dev't. 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).

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2.  Freedom of religious profession and worhip
a.  Right to believe
b.  Right to act on one’s belief
3.  “Benevolent neutrality”
a.  Ebralinag vs. Superintendent, 219 SCRA 256

292 Phil. 267; 321 Phil. 967

EN BANC

[ G.R. No. 95770, March 01, 1993 ]

ROEL EBRALINAG, EMILY EBRALINAG, REPRESENTED BY THEIR PARENTS MR. & MRS.
LEONARDO EBRALINAG; JUSTINIANA TANTOG, REPRESENTED BY HER FATHER AMOS
TANTOG; JEMIL OYAO & JOEL OYAO, REPRESENTED BY THEIR PARENTS MR. & MRS.
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, REPRESENTED BY PARENTS MR.
& MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, REPRESENTED BY
THEIR PARENTS MR. & MRS. FAUSTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO,
REPRESENTED BY THEIR PARENTS MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO,
REPRESENTED BY HIS PARENTS MR. & MRS. MANUEL TANACAO; PRECILA PINO,
REPRESENTED BY HER PARENTS MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA
ALFAR, REPRESENTED BY THEIR PARENTS MR. & MRS. HERMINIGILDO ALFAR;
FREDESMINDA ALFAR & GUMERSINDO ALFAR, REPRESENTED BY THEIR PARENTS
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, REPRESENTED BY THEIR PARENTS
MR. & MRS. GENEROSO ALFAR; MARTINO VILLAR, REPRESENTED BY HIS PARENTS MR.
& MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA, REPRESENTED BY
THEIR PARENTS MR. & MRS. CESAR GUINITA; ALVIN DOOP; REPRESENTED BY HIS
PARENTS MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, REPRESENTED BY HER
PARENTS MR. & MRS. RENE LAUDE; LEOREMINDA MONARES, REPRESENTED BY HER
PARENTS, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO, REPRESENTED BY
HER PARENTS MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, REPRESENTED
BY HIS PARENT ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA,
REPRESENTED BY THEIR PARENTS MR. & MRS. ALBERTO TANGAHA; MAXIMO
EBRALINAG, REPRESENTED BY HIS PARENTS, MR. & MRS. PAQUITO EBRALINAG; JUTA
CUMON, GIDEON CUMON & JONATHAN CUMON, REPRESENTED BY THEIR FATHER
RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, REPRESENTED BY THEIR
PARENTS MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA
MARIE SARSOZO, REPRESENTED BY THEIR PARENTS MR. & MRS. VIRGILIO SARSOZO;
MICHAEL JOSEPH & HENRY JOSEPH, REPRESENTED BY PARENT ANNIE JOSEPH;
 EMERSON TABLASON & MASTERLOU TABLASON, REPRESENTED BY THEIR PARENT
EMERLITO TABLASON, PETITIONERS, VS. THE DIVISION SUPERINTENDENT OF SCHOOLS
OF CEBU, RESPONDENT.

[G.R. NO. 95887. MARCH 1, 1993]

MAY AMOLO, REPRESENTED BY HER PARENTS MR. & MRS. ISAIAS AMOLO; REDFORD
ALSADO, JOEBERT ALSADO & RUDYARD ALSADO, REPRESENTED BY THEIR PARENTS
MR. & MRS. ABELARDO ALSADO; NESIA ALSADO, REU ALSADO AND LILIBETH ALSADO,
REPRESENTED BY THEIR PARENTS MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES,
REPRESENTED BY HER PARENTS ISMAILITO NAPOLES AND OPHELIA NAPOLES; JESICA
CARMELOTES, REPRESENTED BY HER PARENTS MR. & MRS. SERGIO CARMELOTES;
BABY JEAN MACAPAS, REPRESENTED BY HER PARENTS MR. & MRS. TORIBIO
MACAPAS; GERALDINE ALSADO, REPRESENTED BY HER PARENTS MR. & MRS. JOEL
ALSADO; RAQUEL DEMOTOR AND LEAH DEMOTOR, REPRESENTED BY THEIR PARENTS
MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA AND MELONEY VILLA, REPRESENTED
BY THEIR PARENTS MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY
GRACE MAHINAY AND MAGDALENE MAHINAY, REPRESENTED BY THEIR PARENTS MR.
& MRS. FELIX MAHINAY; JONALYN ANTIOLA AND JERWIN ANTIOLA, REPRESENTED BY
THEIR PARENTS FELIPE ANTIOLA AND ANECITA ANTIOLA; MARIA CONCEPCION
CABUYAO, REPRESENTED BY HER PARENTS WENIFREDO CABUYAO AND ESTRELLITA
CABUYAO; NOEMI TURNO REPRESENTED BY HER PARENTS MANUEL TURNO AND
VEVENCIA TURNO; SOLOMON PALATULON, SALMERO PALATULON AND ROSALINDA
PALATULON, REPRESENTED BY THEIR PARENTS MARTILLANO PALATULON AND
CARMILA PALATULON, PETITIONERS, VS. THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU AND ANTONIO A. SANGUTAN, RESPONDENTS.

DECISION

GRIÑO-AQUINO, J.:

These two special civil actions for Certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school children
who are members of a religious sect known as Jehovah's Witnesses may be expelled
from school (both public and private), for refusing, on account of their religious beliefs,
to take part in the flag ceremony which includes playing (by a band) or singing the
Philippine national anthem, saluting the Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770, "Rose Ebralinag, et al. vs. Division Superintendent of Schools of Cebu
and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school
and elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar,
and Taburan, Cebu province. All minors, they are assisted by their parents who belong
to the religious group known as Jehovah's Witnesses which claims some 100,000
"baptized publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and
Antonio A. Sangutan," the petitioners are 25 high school and grade school students
enrolled in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses.
Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public
school authorities in Cebu for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by
Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture
and Sports (DECS) making the flag ceremony compulsory in all educational institutions.
Republic Act No. 1265 provides:

"Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which
shall be simple and dignified and shall include the playing or singing of the Philippine
National anthem.

"Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause
to be issued rules and regulations for the proper conduct of the flag ceremony herein
provided.

"Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in
accordance with rules and regulations issued by the Secretary of Education, after proper
notice and hearing, shall subject the educational institution concerned and its head to
public censure as an administrative punishment which shall be published at least once in
a newspaper of general circulation.

"In case of failure to observe for the second time the flag ceremony provided by this Act,
the Secretary of Education, after proper notice and hearing, shall cause the cancellation
of the recognition or permit of the private educational institution responsible for such
failure."

The implementing rules and regulations in Department Order No. 8 provide:

"RULES AND REGULATIONS FOR CONDUCTING THE FLAG

CEREMONY IN ALL EDUCATIONAL INSTITUTIONS

“1. The Filipino Flag shall be displayed by all educational institutions, public and private,
every school day throughout the year. It shall be raised at sunrise and lowered at
sunset. The flagstaff must be straight, slightly and gently tapering at the end, and of
such height as would give the Flag a commanding position in front of the building or
within the compound.

“2. Every public and private educational institution shall hold a flag-raising ceremony
every morning except when it is raining, in which event the ceremony may be conducted
indoors in the best way possible. A retreat shall be held in the afternoon of the same
day. The flag-raising ceremony in the morning shall be conducted in the following
manner:

"a.  Pupils and teachers or students and faculty members who are in school and its
premises shall assemble in formation facing the flag. At command, books shall be put
away or held in the left hand and everybody shall come to attention. Those with hats
shall uncover. No one shall enter or leave the school grounds during the ceremony.

“b.  The assembly shall sing the Philippine National Anthem accompanied by the school
band or without the accompaniment if it has none; or the anthem may be played by the
school band alone. At the first note of the Anthem, the flag shall be raised briskly. While
the flag is being raised, all persons present shall stand at attention and execute a salute.
Boys and men with hats shall salute by placing the hat over the heart. Those without hat
may stand with their arms and hands down and straight at the sides. Those in military or
Boy Scout uniform shall give the salute prescribed by their regulations. The salute shall
be started as the Flag rises, and completed upon last note of the anthem.

“c.  Immediately following the singing of the Anthem, the assembly shall recite in unison
the following patriotic pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools and of private schools which
are intended for Filipino students or whose population is predominantly Filipino.

"English Version"

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.

xxx                                 xxx                               xxx."

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the
national anthem, and recite the patriotic pledge for they believe that those are "acts of
worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously give x
x x to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's
command to "guard ourselves from idols - 1 John 5:21" (p. 9, Rollo). They consider the
flag as an image or idol representing the State (p. 10, Rollo). They think the action of the
local authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and spirit which
the Constitution protects against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's
Witnesses may be expelled from school for disobedience of R.A. No. 1265 and
Department Order No. 8, series of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106
Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This
Court in the Gerona case upheld the expulsion of the students, thus:

"The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and of freedom and liberty which it
and the Constitution guarantee and protect. Under a system of complete separation of
church and state in the government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious ceremony. The flag salute is
no more a religious ceremony than the taking of an oath of office by a public official or
by a candidate for admission to the bar."

"In requiring school pupils to participate in the flag salute, the State thru the Secretary
of Education is not imposing a religion or religious belief or a religious test on said
students. It is merely enforcing a non-discriminatory school regulation applicable to all
alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State is merely
carrying out the duty imposed upon it by the Constitution which charges it with super-
vision over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all schools aim to
develop, among other things, civic conscience and teach the duties of citizenship."

"The children of Jehovah's Witnesses cannot be exempted from participation in the flag
ceremony. They have no valid right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize the rest of the school
population which by far constitutes the great majority."

"The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory laws,
rules add regulations promulgated by competent authority." (pp. 2-3.)

Gerona was reiterated in Balbuna, as follows:

"The Secretary of Education was duly authorized by the Legislature thru Republic Act
1265 to promulgate said Department Order, and its provisions requiring the observance
of the flag salute, not being a religious ceremony, but an act and profession of love and
allegiance and pledge of loyalty to the fatherland which the flag stands for, does not
violate the constitutional provision on freedom of religion." (Balbuna, et al. vs. Secretary
of Education, et al., 110 Phil. 150.)
Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28,
Title VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which
took effect on September 21, 1988 (one year after its publication in the Official Gazette,
Vol. 83, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives legislative
cachet to the ruling in Gerona, thus:

"5.  Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation."

However, the petitioners herein have not raised in issue the constitutionality of the
above provision of the new Administrative Code of 1987. They have targeted only
Republic Act No. 1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private
schools, who refused to sing the Philippine national anthem, salute the Philippine flag
and recite the patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug
of the Cebu Division of DECS, and Dr./Atty. Marcelo M. Bacalso, Assistant Division
Superintendent, recalling this Court's decision in Gerona, issued Division Memorandum
No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing
District Supervisors, High School Principals and Heads of Private Educational Institutions
as follows:

“1.     Reports reaching this Office disclose that there are a number of teachers, pupils,
students, and school employees in public schools who refuse to salute the Philippine
flag or participate in the daily flag ceremony because f some religious belief.

“2.     Such refusal not only undermines Republic Act No. 1265 and the DECS Department
Order No. 8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the
heart of the DECS sustained effort to inculcate patriotism and nationalism.

“3.     Let it be stressed that any belief that considers the flag as an image is not in any
manner whatever a justification for not saluting the Philippine flag or not participating in
flag ceremony. Thus, the Supreme Court of the Philippine says:

"'The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and freedom and liberty which it
and the Constitution guarantee and protect.' (Gerona, et al. vs. Sec. of Education, et al.,
106 Phil. 11.)

“4.  As regards the claim for freedom of belief, which an objectionist may advance, the
Supreme Court asserts:

"'But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and give
way to the latter.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)

“5.     Accordingly, teachers and school employees who choose not to participate in the
daily flag ceremony or to obey the flag salute regulation spelled out in Department
Order No. 8, Series of 1955, shall be considered removed from the service after due
process.

“6.  In strong language about pupils and students who do the same the Supreme Court
has this to say:

"'If they choose not to obey the flag salute regulation, they merely lost the benefits of
public education being maintained at the expense of their fellow Citizens, nothing more.
According to a popular expression, they could take it or leave it! Having elected not to
comply with the regulation about the flag salute they forfeited their right to attend
public schools.' (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 15.)

“7. School administrators shall therefore submit to this Office a report on those who
choose not to participate in flag ceremony or salute the Philippine flag." (pp. 147-148,
Rollo of G.R. No. 95770; Underscoring supplied.)

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children
were asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing
the national anthem, place their right hand on their breast until the end of the song and
recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p.
48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of
G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met

with the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990,
excerpts from which reveal the following:

"After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on
October 2, 1990 and yesterday due to their firm stand not to salute the flag of the
Republic of the Philippines during Flag Ceremony and other occasions, as mandated by
law specifically Republic Act No. 1265, this Office hereby orders the dropping from the
list in the School Register (BPS Form I) of all teachers, all Jehovah Witness pupils from
Grade I up to Grade VI effective today.

"xxx                           xxx                               xxx.

"This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21, 1955 in
accordance with Republic Act No. 1265 and Supreme Court Decision of a case 'Genaro
Gerona, et al., Petitioners and Appellants vs. The Honorable Secretary of Education, et
al., Respondents and Appellees' dated August 12, 1959 against their favor." (p. 149,
Rollo of G.R. No. 95770.)

In the DaanBantayan District, the District Supervisor, Manuel F. Biongcog, ordered the
"dropping from the rolls" of students who "opted to follow their religious belief which is
against the Flag Salute Law" on the theory that "they forfeited their right to attend
public schools." (p. 47, Rollo of G.R. No. 95770.)

"1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990

"Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary
School with the information that this office is sad to order the dropping of Jeremias
Diamos and Jeaneth Diamos, Grades III and IV pupils respectively from the roll since they
opted to follow their religious belief which is against the Flag Salute Law (R.A. 1265) and
DECS Order No. 8, series of 1955, having elected not to comply with the regulation
about the flag salute they forfeited their right to attend public schools (Gerona, et al. vs.
Sec. of Education, et al., 106 Philippines 15). However, should they change their mind to
respect and follow the Flag Salute Law they may be re-accepted."

"(Sgd.) MANUEL F. BIONGCOG

District Supervisor"

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the

Daanbantayan National High School, Agujo Elementary School, Calape Barangay Nation-
al High School, Pinamungajan Provincial High School, Tabuelan Central School,
Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San
Juan Primary School and Northern Central Elementary School of San Fernando, Cebu,
upon order of then Acting Division Superintendent Marcelo Bacalso, prompted some
Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro Cariño but
the latter did not answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled
because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent
of Schools, would not recall the expulsion orders of his predecessor. Instead, he verbally
caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions for
Mandamus, Certiorari and Prohibition alleging that the public respondents acted
without or in excess of their jurisdiction and with grave abuse of discretion - (1) in
ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education, and their right to freedom of
speech, religion and worship (p. 23, Rollo). The petitioners pray that:

"c. Judgment be rendered:

“i. declaring null and void the expulsion or dropping from the rolls of herein petitioners
from their respective schools;

“ii. prohibiting and enjoining respondent from further barring the petitioners from their
classes or otherwise implementing the expulsion ordered on petitioners; and

"iii. compelling the respondent and all persons acting for him to admit and order the re-
admission of petitioners to their respective schools." (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary
restraining order be issued enjoining the respondents from enforcing the expulsion of
the petitioners and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately readmit
the petitioners to their respective classes until further orders from this Court (p. 57,
Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel
F. Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p.
98, Rollo) defending the expulsion orders issued by the public respondents on the
grounds that:

1.  Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-
social school children and consequently disloyal and mutant Filipino citizens.

2.  There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies are
violative of their freedom of religion and worship.

3.  The flag salute is devoid of any religious significance; instead, it inculcates respect
and love of country, for which the flag stands.

4.  The State's compelling interests being pursued by the DECS' lawful regulations in
question do not warrant exemption of the school children of the Jehovah's Witnesses
from the flag salute ceremonies on the basis of their own self-perceived religious
convictions.

5.  The issue is not freedom of speech but enforcement of law and jurisprudence.

6.  State's power to regulate repressive and unlawful religious practices justified, besides
having scriptural basis.

7.  The penalty of expulsion is legal and valid, more so with the enactment of Executive
Order No. 292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year-old decision of this Court
in Gerona upholding the flag salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative
cachet by its incorporation in the Administrative Code of 1987, the present Court
believes that the time has come to reexamine it. The idea that one may be compelled to
salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag
ceremony on pain of being dismissed from one's job or of being expelled from school, is
alien to the conscience of the present generation of Filipinos who cut their teeth on the
Bill of Rights which guarantees their rights to free speech* and the free exercise of
religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section
8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his
Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).

"The right to religious profession and worship has a two-fold aspect, vis., freedom to
believe and freedom to act on one's belief. 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" (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag
ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance of
the flag ceremony. They quietly stand at attention during the flag ceremony to show
their respect for the right of those who choose to participate in the solemn proceedings
(Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they
do not engage in disruptive behavior, there is no warrant for their expulsion.

"The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion
in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave and present
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, that the State has a right
(and duty) to prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.

The situation that the Court direly predicted in Gerona that:

"[T]he flag ceremony will become a thing of the past or perhaps conducted with very
few participants, and the time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag and love of country,
admiration for national heroes, and patriotism -- a pathetic, even tragic situation, and all
because a small portion of the school population imposed its will, demanded and was
granted an exemption." (Gerona, 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses
from saluting the flag, singing the national anthem and reciting the patriotic pledge, this
religious group which admittedly comprises a "small portion of the school population"
will shake up our part of the globe and suddenly produce a nation "untaught and
uninculcated in and unimbued with reverence for the flag, patriotism, love of country
and admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After
all, what the petitioners seek only is exemption from the flag ceremony, not exclusion
from the public schools where they may study the Constitution, the democratic way of
life and form of government, and learn not only the arts, sciences, Philippine history and
culture but also receive training for a vocation or profession and be taught the virtues of
"patriotism, respect for human rights, appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court had feared in
Gerona. Forcing a small religious group, through the iron hand of the law, to participate
in a ceremony that violates their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

"x x x To believe that patriotism will not flourish if patriotic ceremonies are voluntary
and spontaneous instead of a compulsory routine is to make an unflattering estimate of
the appeal of our institutions to free minds. x x x When they [diversity] are so harmless
to others or to the State as those we deal with here, the price is not too great. But
freedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch
the heart of the existing order."
"Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x - -
assuming that such unity and loyalty can be attained through coercion - - is not a goal
that is constitutionally obtainable at the expense of religious liberty. A desirable end
cannot be promoted by prohibited means." (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed.
1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where
they are enrolled will violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of the State to "protect and
promote the right of all citizens to quality education x x x and to make such education
accessible to all" (Sec. 1, Art. XIV).

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we uphheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching of
their church not to join any labor group:

"x x x It is certain that not every conscience can be accomodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought to
be granted unless some 'compelling state interests' intervenes." (Sherbert vs. Berner,
374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.)"

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with
regard to the observance of the flag ceremony out of respect for their religious beliefs,
however "bizarre" those beliefs may seem to others. Nevertheless, their right not to
participate in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA
523, 535, while the highest regard must be afforded their right to the free exercise of
their religion, "this should not be taken to mean that school authorities are powerless to
discipline them" if they should commit breaches of the peace by actions that offend the
sensibilities, both religious and patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates and teachers salute the flag,
sing the national anthem and recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose "a grave and present danger of a
serious evil to public safety, public morals, public health or any other legitimate public
interest that the State has a right (and duty) to prevent" (German vs. Barangan, 135
SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of
the invader, saluted the Japanese flag and bowed before every Japanese soldier.
Perhaps, if petitioners had lived through that dark period of our history, they would not
quibble now about saluting the Philippine flag. For when liberation came in 1944 and
our own flag was proudly hoisted aloft again, it was a beautiful sight to behold that
made our hearts pound with pride and joy over the newly-regained freedom and
sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution
to refuse to salute the Philippine flag on account of their religious beliefs, we hope,
nevertheless, that another foreign invasion of our country will not be necessary in order
for our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion

orders issued by the public respondents against the petitioners are hereby ANNULLED
AND SET ASIDE. The temporary restraining order which was issued by this Court is
hereby made permanent.
SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo,
Melo, and Campos, Jr., JJ., concur.
Cruz, J., see concurring opinion.
Padilla, J., see separate opinion.
Gutierrez, Jr., J., on leave.
Quiason, J., no part.

*
 The flag salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances.

CONCURRING OPINION

CRUZ, J.:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
affirmation of a vital postulate of freedom. I would only add my brief observations
concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that
promulgated it was apparently laboring under the conviction that the State had the right
to determine what was religious and what was not and to dictate to the individual what
he could and could not worship. In pronouncing that the flag was not a religious image
but a symbol of the nation, it was implying that no one had the right to worship it or - as
the petitioners insisted - not to worship it. This was no different from saying that the
cult that reveres Rizal as a divinity should not and cannot do so because he is only a civic
figure deserving honor but not veneration.

It seems to me that every individual is entitled to choose for himself whom or what to
worship or whether to worship at all. This is a personal decision he alone can make. The
individual may worship a spirit or a person or a beast or a tree (or a flag), and the State
cannot prevent him from doing so. For that matter, neither can it compel him to do so.
As long as his beliefs are not externalized in acts that offend the public interest, he
cannot be prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedra that they are not violating the Bible by saluting the flag. This is to
me an unwarranted intrusion into their religious beliefs, which tell them the opposite.
The State cannot interpret the Bible for them: only they can read it as they see fit. Right
or wrong, the meaning they derive from it cannot be revised or reversed except perhaps
by their own acknowledged superiors. But certainly not the State. It has no competence
in this matter. Religion is forbidden territory that the State, for all its power and
authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection

of religious freedom terminated disabilities, it did not create new privileges. It gave
religious equality, not civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes
with their own understanding of their religious obligations. Significantly, as the ponencia
notes, their intransigence does not disturb the peaceful atmosphere of the school or
otherwise prejudice the public order. Their refusal to salute the flag and recite the
patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it.
The petitioners simply stand at attention and keep quiet "to show their respect for the
right of those who choose to participate in the solemn proceedings." It is for this
innocuous conduct that, pursuant to the challenged law and regulations, the teachers
have been dismissed and the students expelled.

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a
symbolic manner of communication that conveys its message as clearly as the written or
spoken word. As a valid form of expression, it cannot be compelled any more than it can
be prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as in this case. The
conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.

SEPARATE OPINION

PADILLA, J.:

I concur in the Court's decision penned by Madame Justice Carolina C. Grino-Aquino

that school teachers and students who cannot salute the flag, sing the national anthem
and recite the pledge of loyalty to the country, on grounds of religious belief or
conviction, may not on this ground alone be dismissed from the service or expelled from
the school.

At the same time, I am really concerned with what could be the far-reaching
consequences of our ruling in that, we may in effect be sanctioning a privileged or elite
class of teachers and students who will hereafter be exempt from participating, even
when they are in the school premises, in the flag ceremony in deference to their
religious scruples. What happens, for instance, if some citizens, based also on their
religious beliefs, were to refuse to pay taxes and license fees to the government?
Perhaps problems of this nature should not be anticipated. They will be resolved when
and if they ever arise. But with today's decision, we may have created more problems
than we have solved.

It cannot be denied that the State has the right and even the duty to promote among its
citizens, especially the youth, love of country, respect for the flag and reverence for its
national heroes. It cannot also be disputed that the State has the right to adopt
reasonable means by which these laudable objectives can be effectively pursued and
achieved. The flag ceremony is one such device intended to inspire patriotism and evoke
the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends.
For a select few to be exempt from the flag ceremony and all that it represents even if
the exemption is predicated on respect for religious scruples, could be divisive in its
impact on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of
religious scruples or beliefs cannot actively participate in the flag ceremony conducted
in the school premises should be excluded beforehand from such ceremony. Instead of
allowing the religious objector to attend the flag ceremony and display therein his
inability to salute the flag, sing the national anthem and recite the pledge of loyalty to
the Republic, he or she should remain in the classroom while honors to the flag are
conducted and manifested in the "quadrangle" or equivalent place within school
premises; or if the flag ceremony must be held in a hall, the religious objector must take
his or her place at the rear of (or outside) the hall while those who actively participate in
the ceremony must take the front places. This arrangement can, in my view, achieve an
accommodation and, to a certain extent, harmonization of a citizen's constitutional right
to freedom of religion and a valid exercise of the State's fundamental and legitimate
authority to require homage and honor to the flag as the symbol of the Nation.

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b.  Estrada vs. Escritor, August 4, 2003

455 Phil. 411

EN BANC

[ A.M. No. P-02-1651 (formerly OCA I.P.I. No. 00-1021-P), August 04, 2003 ]

ALEJANDRO ESTRADA, COMPLAINANT, VS. SOLEDAD S. ESCRITOR, RESPONDENT.

DECISION

PUNO, J.:

The case at bar takes us to a most difficult area of constitutional law where man stands
accountable to an authority higher than the state. To be held on balance are the state's
interest and the respondent's religious freedom. In this highly sensitive area of law, the
task of balancing between authority and liberty is most delicate because to the person
invoking religious freedom, the consequences of the case are not only temporal. The
task is not made easier by the American origin of our religion clauses and the wealth of
U.S. jurisprudence on these clauses for in the United States, there is probably no more
intensely controverted area of constitutional interpretation than the religion clauses.
[1]
 The U.S. Supreme Court itself has acknowledged that in this constitutional area, there
is "considerable internal inconsistency in the opinions of the Court."[2] As stated by a
professor of law, "(i)t is by now notorious that legal doctrines and judicial decisions in
the area of religious freedom are in serious disarray. In perhaps no other area of
constitutional law have confusion and inconsistency achieved such undisputed
sovereignty."[3] Nevertheless, this thicket is the only path to take to conquer the
mountain of a legal problem the case at bar presents. Both the penetrating and
panoramic view this climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom question arose in an
administrative case involving only one person does not alter the paramount importance
of the question for the "constitution commands the positive protection by government
of religious freedom -not only for a minority, however small- not only for a majority,
however large- but for each of us."[4]
I. Facts
The facts of the case will determine whether respondent will prevail in her plea of
religious freedom. It is necessary therefore to lay down the facts in detail, careful not to
omit the essentials.

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to

Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las
Piñas City, requesting for an investigation of rumors that respondent Soledad Escritor,
court interpreter in said court, is living with a man not her husband. They allegedly have
a child of eighteen to twenty years old. Estrada is not personally related either
to Escritor or her partner and is a resident not of Las Piñas City but of Bacoor, Cavite.
Nevertheless, he filed the charge against Escritor as he believes that she is committing
an immoral act that tarnishes the image of the court, thus she should not be allowed to
remain employed therein as it might appear that the court condones her act.[5]

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the
veracity of the allegation" and challenged Estrada to "appear in the open and prove his
allegation in the proper forum."[6] Judge Caoibes set a preliminary conference on
October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her
case to avoid suspicion and bias as she previously filed an administrative complaint
against him and said case was still pending in the Office of the Court Administrator
(OCA). Escritor's motion was denied. The preliminary conference proceeded with
both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-
complaint for immorality against Escritor because in his frequent visits to the Hall of
Justice of Las Piñas City, he learned from conversations therein that Escritor was living
with a man not her husband and that she had an eighteen to twenty-year old son by this
man. This prompted him to write to Judge Caoibes as he believed that employees of the
judiciary should be respectable and Escritor's live-in arrangement did not command
respect.[7]

Respondent Escritor testified that when she entered the judiciary in 1999,[8] she was

already a widow, her husband having died in 1998.[9] She admitted that she has been
living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and
that they have a son. But as a member of the religious sect known as the Jehovah's
Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is
in conformity with their religious beliefs. In fact, after ten years of living together, she
executed on July 28, 1991 a "Declaration of Pledging Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as
my mate in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public authorities and that it is because of
having been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.

I recognize this relationship as a binding tie before `Jehovah' God and before all persons
to be held to and honored in full accord with the principles of God's Word. I will
continue to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances make this possible, I
promise to legalize this union.

Signed this 28th day of July 1991.[10]

Escritor's partner, Quilapio, executed a similar pledge on the same day.[11] Both pledges
were executed in Atimonan, Quezon and signed by three witnesses. At the
time Escritor executed her pledge, her husband was still alive but living with another
woman. Quilapio was likewise married at that time, but had been separated in fact from
his wife. During her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered her
identification of her signature and the signature of Quilapio sufficient authentication of
the documents.[12]

Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr.,
who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17,
2001, the Court, upon recommendation of Acting Court Administrator Zenaida N.
Elepaño, directed Escritor to comment on the charge against her. In her
comment, Escritor reiterated her religious congregation's approval of her conjugal
arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to state with
candor that there is no truth as to the veracity of same allegation. Included herewith are
documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2)
duly signed by both respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the WATCH TOWER
BIBLE and TRACT SOCIETY, Philippine Branch.

Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and
before all persons to be held to and honored in full accord with the principles of God's
Word.

xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to
which undersigned believes to be a high authority in relation to her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that the case be
referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Piñas City for
investigation, report and recommendation. In the course of Judge Maceda's
investigation, Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She offered to supply
the investigating judge some clippings which explain the basis of her congregation's
belief and practice regarding her conjugal arrangement. Escritor started living with
Quilapio twenty years ago when her husband was still alive but living with another
woman. She met this woman who confirmed to her that she was living with her
(Escritor's) husband.[14]

Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also testified. He
had been a presiding minister since 1991 and in such capacity is aware of the rules and
regulations of their congregation. He explained the import of and procedure for
executing a "Declaration of Pledging Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite some
particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties
involved and then we request them to execute a Public Declaration of Pledge of
faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of faithfulness,
 who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized
member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this
document?
A: Actually, sir, the signing of that document, ah, with the couple has consent to
marital relationship (sic) gives the Christian Congregation view that the couple
has put themselves on record before God and man that they are faithful to
each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document
between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of
faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who
contracted with the opposite member of my congregation, opposite sex, and
that this document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a
preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under the
same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to the
marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting
parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we
Christians follow. The basis is herein stated in the Book of Matthew, Chapter
Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said "that everyone
divorcing his wife, except on account of fornication, makes her a subject for
adultery, and whoever marries a divorced woman commits adultery.[15]
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza Congregation
in Las Piñas, in May 2001. The declarations having been executed in Atimonan, Quezon
in 1991, Salazar had no personal knowledge of the personal circumstances
of Escritor and Quilapio when they executed their declarations. However, when the two
transferred to Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the personal circumstances of
the couple had been considered by the Atimonan Congregation when they executed
their declarations.

Escritor and Quilapio's declarations are recorded in the Watch Tower Central office.
They were executed in the usual and approved form prescribed by the Watch Tower
Bible and Tract Society which was lifted from the article, "Maintaining Marriage in
Honor Before God and Men," [16] in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.

The declaration requires the approval of the elders of the Jehovah's Witnesses
congregation and is binding within the congregation all over the world except in
countries where divorce is allowed. The Jehovah's congregation requires that at the
time the declarations are executed, the couple cannot secure the civil authorities'
approval of the marital relationship because of legal impediments. It is thus standard
practice of the congregation to check the couple's marital status before giving
imprimatur to the conjugal arrangement. The execution of the declaration finds
scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended
spouse can remarry. The marital status of the declarants and their respective spouses'
commission of adultery are investigated before the declarations are executed. Thus, in
the case of Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved and the
declaration is valid everywhere, including the Almanza Congregation. That Escritor's and
Quilapio's declarations were approved are shown by the signatures of three witnesses,
the elders in the Atimonan Congregation. Salazar confirmed from the congregation's
branch office that these three witnesses are elders in the Atimonan Congregation.
Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry
on her part, her mate is still not capacitated to remarry. Thus, their declarations remain
valid. Once all legal impediments for both are lifted, the couple can already register their
marriage with the civil authorities and the validity of the declarations ceases. The elders
in the congregations can then solemnize their marriage as authorized by Philippine law.
In sum, therefore, insofar as the congregation is concerned, there is nothing immoral
about the conjugal arrangement between Escritor and Quilapio and they remain
members in good standing in the congregation.[17]

Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the
Jehovah's Witnesses since 1974 and member of the headquarters of the Watch Tower
Bible and Tract Society of the Philippines, Inc., presented the original copy of the
magazine article entitled, "Maintaining Marriage Before God and Men" to
which Escritor and Minister Salazar referred in their testimonies. The article appeared in
the March 15, 1977 issue of the Watchtower magazine published in Pennsylvania, U.S.A.
Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines,
Inc., authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovah's Witnesses congregations which also distribute them to the
public.[18]

The parties submitted their respective memoranda to the investigating judge. Both
stated that the issue for resolution is whether or not the relationship between
respondent Escritor and Quilapio is valid and binding in their own religious
congregation, the Jehovah's Witnesses. Complainant Estrada adds however, that the
effect of the relationship to Escritor's administrative liability must likewise be
determined. Estrada argued, through counsel, that the Declaration of Pledging
Faithfulness recognizes the supremacy of the "proper public authorities" such that she
bound herself "to seek means to . . . legalize their union." Thus, even
assuming arguendo that the declaration is valid and binding in her congregation, it is
binding only to her co-members in the congregation and serves only the internal
purpose of displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice, however,
cannot override the norms of conduct required by law for government employees. To
rule otherwise would create a dangerous precedent as those who cannot legalize their
live-in relationship can simply join the Jehovah's Witnesses congregation and use their
religion as a defense against legal liability.[19]

On the other hand, respondent Escritor reiterates the validity of her conjugal

arrangement with Quilapio based on the belief and practice of her religion, the
Jehovah's Witnesses. She quoted portions of the magazine article entitled, "Maintaining
Marriage Before God and Men," in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the
respondent and her mate greatly affect the administrative liability of respondent.
Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public
authorities in the marriage arrangement. However, it is helpful to understand the
relative nature of Caesar's authority regarding marriage. From country to country,
marriage and divorce legislation presents a multitude of different angles and aspects.
Rather than becoming entangled in a confusion of technicalities, the Christian, or the
one desiring to become a disciple of God's Son, can be guided by basic Scriptural
principles that hold true in all cases.

God's view is of first concern. So, first of all the person must consider whether that one's
present relationship, or the relationship into which he or she contemplates entering, is
one that could meet with God's approval, or whether in itself, it violates the standards
of God's Word. Take, for example, the situation where a man lives with a wife but also
spends time living with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can never be harmonized
with Christian principles, nor could any declaration on the part of the woman or the
man make it so. The only right course is cessation of the relationship. Similarly with an
incestuous relationship with a member of one's immediate family, or a homosexual
relationship or other such situation condemned by God's Word. It is not the lack of any
legal validation that makes such relationships unacceptable; they are in themselves
unscriptural and hence, immoral. Hence, a person involved in such a situation could not
make any kind of "Declaration of Faithfulness," since it would have no merit in God's
eyes.

If the relationship is such that it can have God's approval, then, a second principle to
consider is that one should do all one can to establish the honorableness of one's
marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should
now be taken so that, having obtained the divorce (on whatever legal grounds may be
available), the present union can receive civil validation as a recognized marriage.

Finally, if the marital relationship is not one out of harmony with the principles of God's
Word, and if one has done all that can reasonably be done to have it recognized by civil
authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness
can be signed. In some cases, as has been noted, the extreme slowness of official action
may make accomplishing of legal steps a matter of many, many years of effort. Or it may
be that the costs represent a crushingly heavy burden that the individual would need
years to be able to meet. In such cases, the declaration pledging faithfulness will provide
the congregation with the basis for viewing the existing union as honorable while the
individual continues conscientiously to work out the legal aspects to the best of his
ability.
Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah
God, should be able to approach the matter in a balanced way, neither underestimating
nor overestimating the validation offered by the political state. She always gives primary
concern to God's view of the union. Along with this, every effort should be made to set a
fine example of faithfulness and devotion to one's mate, thus, keeping the marriage
"honorable among all." Such course will bring God's blessing and result to the honor and
praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the investigating judge that complainant's
Memorandum came from Judge Caoibes' chambers[21] whom she claims was merely
using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritor's factual

allegations credible as they were supported by testimonial and documentary evidence.
He also noted that "(b)y strict Catholic standards, the live-in relationship of respondent
with her mate should fall within the definition of immoral conduct, to wit: `that which is
willful, flagrant, or shameless, and which shows a moral indifference to the opinion of
the good and respectable members of the community' (7 C.J.S. 959)' (Delos Reyes vs.
Aznar, 179 SCRA, at p. 666)." He pointed out, however, that "the more relevant question
is whether or not to exact from respondent Escritor, a member of `Jehovah's Witnesses,'
the strict moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar."[22] The investigating judge acknowledged that "religious
freedom is a fundamental right which is entitled to the highest priority and the amplest
protection among human rights, for it involves the relationship of man to his Creator (at
p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernando's separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531)" and thereby recommended the
dismissal of the complaint against Escritor.[23]

After considering the Report and Recommendation of Executive Judge Maceda, the
Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and
with the approval of Court Administrator Presbitero Velasco, concurred with the factual
findings of Judge Maceda but departed from his recommendation to dismiss the
complaint. DCA Lock stressed that although Escritor had become capacitated to marry
by the time she joined the judiciary as her husband had died a year before, "it is due to
her relationship with a married man, voluntarily carried on, that respondent may still be
subject to disciplinary action."[24] Considering the ruling of the Court in Dicdican v.
Fernan, et al.[25] that "court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private conduct in order to
preserve the good name and integrity of the court of justice," DCA Lock found Escritor's
defense of freedom of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months and one day
without pay with a warning that a repetition of a similar act will be dealt with more
severely in accordance with the Civil Service Rules.[26]
II. Issue
Whether or not respondent should be found guilty of the administrative charge of
"gross and immoral conduct." To resolve this issue, it is necessary to determine the sub-
issue of whether or not respondent's right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for which government
employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct" under Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service
shall be suspended or dismissed except for cause as provided by law and after due
process.

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

Not represented by counsel, respondent, in layman's terms, invokes the religious beliefs
and practices and moral standards of her religion, the Jehovah's Witnesses, in asserting
that her conjugal arrangement with a man not her legal husband does not constitute
disgraceful and immoral conduct for which she should be held administratively liable.
While not articulated by respondent, she invokes religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
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.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well to
understand not only its birth in the United States, but its conception in the Old World.
One cannot understand, much less intelligently criticize the approaches of the courts
and the political branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the ancient and
medieval world and in the American experience.[27] This fresh look at the religion clauses
is proper in deciding this case of first impression.

In primitive times, all of life may be said to have been religious. Every significant event in
the primitive man's life, from birth to death, was marked by religious ceremonies. Tribal
society survived because religious sanctions effectively elicited adherence to social
customs. A person who broke a custom violated a taboo which would then bring upon
him "the wrathful vengeance of a superhuman mysterious power."[28] Distinction
between the religious and non-religious would thus have been meaningless to him. He
sought protection from all kinds of evil - whether a wild beast or tribe enemy and
lightning or wind - from the same person. The head of the clan or the Old Man of the
tribe or the king protected his wards against both human and superhuman enemies. In
time, the king not only interceded for his people with the divine powers, but he himself
was looked upon as a divine being and his laws as divine decrees.[29]

Time came, however, when the function of acting as intermediary between human and
spiritual powers became sufficiently differentiated from the responsibility of leading the
tribe in war and policing it in peace as to require the full-time services of a special priest
class. This saw the birth of the social and communal problem of the competing claims of
the king and priest. Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also performed priestly
functions, he carried out these functions because he was the head and representative of
the community.[30]

There being no distinction between the religious and the secular, the same authority
that promulgated laws regulating relations between man and man promulgated laws
concerning man's obligations to the supernatural. This authority was the king who was
the head of the state and the source of all law and who only delegated performance of
rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed
penalties for homicide, larceny, perjury, and other crimes; regulated the fees of
surgeons and the wages of masons and tailors and prescribed rules for inheritance of
property;[31] and also catalogued the gods and assigned them their places in the divine
hierarchy so as to put Hammurabi's own god to a position of equality with existing gods.
[32]
 In sum, the relationship of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost universally the
dominant partner.[33]

With the rise of the Hebrew state, a new term had to be coined to describe the relation
of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the
state was ascribed to God.[34] The Mosaic creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch,
prophet, and priest preceded king and prince. As man of God, Moses decided when the
people should travel and when to pitch camp, when they should make war and when
peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest.
Like the Code of Hammurabi, the Mosaic code combined civil laws with religious
mandates, but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and all-embracing:
sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens
or using false weights, all because God commanded these.

Moses of the Bible led not like the ancient kings. The latter used religion as an engine to
advance the purposes of the state. Hammurabi unified Mesopotamia and established
Babylon as its capital by elevating its city-god to a primary position over the previous
reigning gods.[35] Moses, on the other hand, capitalized on the natural yearnings of the
Hebrew slaves for freedom and independence to further God's purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of
Canaan was a preparation for the building of the temple and the full worship of God.[36]

Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism,
more than anything else, charted not only the future of religion in western civilization,
but equally, the future of the relationship between religion and state in the west. This
fact is acknowledged by many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and universal God
that introduced a religious exclusivism leading to compulsion and persecution in the
realm of religion. Ancient religions were regarded as confined to each separate people
believing in them, and the question of change from one religious belief to another did
not arise. It was not until an exclusive fellowship, that the questions of proselytism,
change of belief and liberty of religion arose.[37] (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period,
religion was not only superior to the state, but it was all of the state. The Law of God as
transmitted through Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion.
Saul and David each received their kingdom from Samuel the prophet and disciple of Eli
the priest, but soon the king dominated prophet and priest. Saul disobeyed and even
sought to slay Samuel the prophet of God.[38] Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to further the state's
purposes. He reformed the order of priesthood established by Moses because the high
priest under that order endorsed the claim of his rival to the throne.[39]

The subordination of religion to the state was also true in pre-Christian Rome which
engaged in emperor-worship. When Augustus became head of the Roman state and the
priestly hierarchy, he placed religion at a high esteem as part of a political plan to
establish the real religion of pre-Christian Rome - the worship of the head of the state.
He set his great uncle Julius Caesar among the gods, and commanded that worship of
Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When
Augustus died, he also joined the ranks of the gods, as other emperors before him.[40]

The onset of Christianity, however, posed a difficulty to the emperor as the Christians'
dogmatic exclusiveness prevented them from paying homage to publicly accepted gods.
In the first two centuries after the death of Jesus, Christians were subjected to
persecution. By the time of the emperor Trajan, Christians were considered outlaws.
Their crime was "hatred of the human race", placing them in the same category as
pirates and brigands and other "enemies of mankind" who were subject to summary
punishments.[41]

In 284, Diocletian became emperor and sought to reorganize the empire and make its
administration more efficient. But the closely-knit hierarchically controlled church
presented a serious problem, being a state within a state over which he had no control.
He had two options: either to force it into submission and break its power or enter into
an alliance with it and procure political control over it. He opted for force and revived
the persecution, destroyed the churches, confiscated sacred books, imprisoned the
clergy and by torture forced them to sacrifice.[42] But his efforts proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine joined
with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of
toleration to Christians "on condition that nothing is done by them contrary to
discipline."[43] A year later, after Galerius died, Constantine and Licius jointly issued the
epochal Edict of Milan (312 or 313), a document of monumental importance in the
history of religious liberty. It provided "that liberty of worship shall not be
denied to any, but that the mind and will of every individual shall be free to manage
divine affairs according to his own choice." (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted "that every person who cherishes the
desire to observe the Christian religion shall freely and unconditionally proceed to
observe the same without let or hindrance." Furthermore, it was provided that the
"same free and open power to follow their own religion or worship is granted also to
others, in accordance with the tranquillity of our times, in order that every person may
have free opportunity to worship the object of his choice."(emphasis supplied)[44]

Before long, not only did Christianity achieve equal status, but acquired privilege, then
prestige, and eventually, exclusive power. Religion became an engine of state policy as
Constantine considered Christianity a means of unifying his complex empire. Within
seven years after the Edict of Milan, under the emperor's command, great Christian
edifices were erected, the clergy were freed from public burdens others had to bear,
and private heathen sacrifices were forbidden.

The favors granted to Christianity came at a price: state interference in religious

affairs. Constantine and his successors called and dismissed church councils, and
enforced unity of belief and practice. Until recently the church had been the victim of
persecution and repression, but this time it welcomed the state's persecution and
repression of the nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.

Both in theory as in practice, the partnership between church and state was not easy. It
was a constant struggle of one claiming dominance over the other. In time,
however, after the collapse and disintegration of the Roman Empire, and while
monarchical states were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and universal power. Not
surprisingly, therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leo's crowning of Charlemagne, became the
church's accepted principle of its relationship to the state in the Middle Ages. As viewed
by the church, the union of church and state was now a union of the state in the church.
The rulers of the states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself crowned his own son as
successor to nullify the inference of supremacy.[45] The whole history of medieval
Europe was a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At about the second
quarter of the 13th century, the Inquisition was established, the purpose of which was
the discovery and extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.

The corruption and abuses of the Catholic Church spurred the Reformation aimed at
reforming the Catholic Church and resulting in the establishment of Protestant
churches. While Protestants are accustomed to ascribe to the Reformation the rise of
religious liberty and its acceptance as the principle governing the relations between a
democratic state and its citizens, history shows that it is more accurate to say that the
"same causes that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the principle of
separation of church and state."[46] Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just as
Protestants living in the countries of papists pleaded for toleration of religion, so did the
papists that lived where Protestants were dominant.[47] Papist and Protestant
governments alike accepted the idea of cooperation between church and state and
regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.[48] Certainly, Luther, leader of the Reformation, stated that
"neither pope, nor bishop, nor any man whatever has the right of making one syllable
binding on a Christian man, unless it be done with his own consent."[49] But when the
tables had turned and he was no longer the hunted heretic, he likewise stated when he
made an alliance with the secular powers that "(h)eretics are not to be disputed with,
but to be condemned unheard, and whilst they perish by fire, the faithful ought to
pursue the evil to its source, and bathe their hands in the blood of the Catholic bishops,
and of the Pope, who is a devil in disguise."[50] To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities in the
Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the
use of the state as an engine to further religion. In establishing theocracy in Geneva,
Calvin made absence from the sermon a crime, he included criticism of the clergy in the
crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.[51]

There were, however, those who truly advocated religious liberty. Erasmus, who
belonged to the Renaissance than the Reformation, wrote that "(t)he terrible papal
edict, the more terrible imperial edict, the imprisonments, the confiscations, the
recantations, the fagots and burnings, all these things I can see accomplish nothing
except to make the evil more widespread."[52] The minority or dissident sects also
ardently advocated religious liberty. The Anabaptists, persecuted and despised, along
with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in
the 17th century, endorsed the supremacy and freedom of the individual conscience.
They regarded religion as outside the realm of political governments.[53] The English
Baptists proclaimed that the "magistrate is not to meddle with religion or matters of
conscience, nor compel men to this or that form of religion."[54]

Thus, out of the Reformation, three rationalizations of church-state relations may be

distinguished: the Erastian  (after the German doctor Erastus), the theocratic, and
the separatist. The first assumed state superiority in ecclesiastical affairs and the use of
religion as an engine of state policy as demonstrated by Luther's belief that civic
cohesion could not exist without religious unity so that coercion to achieve religious
unity was justified. The second was founded on ecclesiastical supremacy and the use of
state machinery to further religious interests as promoted by Calvin. The third, which
was yet to achieve ultimate and complete expression in the New World, was
discernibly in its incipient form in the arguments of some dissident minorities that the
magistrate should not intermeddle in religious affairs.[55] After the Reformation,
Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England,
perhaps more than in any other country, Erastianism was at its height. To illustrate, a
statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed
on all clergymen the duty of seeing to it that no person was buried in a shroud made of
any substance other than wool.[56] Under Elizabeth, supremacy of the crown over the
church was complete: ecclesiastical offices were regulated by her proclamations,
recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death
for high treason, the thirty-nine Articles of the Church of England were adopted and
English Protestantism attained its present doctrinal status.[57] Elizabeth was to be
recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or
ecclesiastical things or causes as temporal." She and her successors were vested, in their
dominions, with "all manner of jurisdictions, privileges, and preeminences, in any wise
touching or concerning any spiritual or ecclesiastical jurisdiction."[58] Later, however,
Cromwell established the constitution in 1647 which granted full liberty to all
Protestant sects, but denied toleration to Catholics.[59] In 1689, William III issued
the Act of Toleration which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief
Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally
permitted to sit in Parliament.[60]

When the representatives of the American states met in Philadelphia in 1787 to draft
the constitutional foundation of the new republic, the theocratic state which had
flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely gone. The prevailing church-state relationship in Europe was Erastianism
embodied in the system of jurisdictionalism whereby one faith was favored as the
official state-supported religion, but other faiths were permitted to exist with freedom
in various degrees. No nation had yet adopted as the basis of its church-state relations
the principle of the mutual independence of religion and government and the
concomitant principle that neither might be used as an engine to further the policies
of the other, although the principle was in its seminal form in the arguments of some
dissident minorities and intellectual leaders of the Renaissance. The religious wars of
16th and 17th century Europe were a thing of the past by the time America declared its
independence from the Old World, but their memory was still vivid in the minds of the
Constitutional Fathers as expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of
America had been filled with turmoil, civil strife, and persecution generated in large part
by established sects determined to maintain their absolute political and religious
supremacy. With the power of government supporting them, at various times and
places, Catholics had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of these had from time to
time persecuted Jews. In efforts to force loyalty to whatever religious group happened
to be on top and in league with the government of a particular time and place, men and
women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for
which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established churches, non-
attendance at those churches, expressions of non-belief in their doctrines, and failure to
pay taxes and tithes to support them.[61]
In 1784, James Madison captured in this statement the entire history of church-state
relations in Europe up to the time the United States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions.[62]
In sum, this history shows two salient features: First, with minor exceptions, the history
of church-state relationships was characterized by persecution, oppression, hatred,
bloodshed, and war, all in the name of the God of Love and of the Prince of Peace.
Second, likewise with minor exceptions, this history witnessed the unscrupulous use of
religion by secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the favors and
mundane benefits conferred by ambitious princes and emperors in exchange for
religion's invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its birth in
American constitutional democracy and in human history.[63]
V. Factors Contributing to the Adoption of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated
England, established many of the American colonies. British thought pervaded these
colonies as the immigrants brought with them their religious and political ideas from
England and English books and pamphlets largely provided their cultural fare.[64] But
although these settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some of these
settlers themselves transplanted into American soil the oppressive practices they
escaped from. The charters granted by the English Crown to the individuals and
companies designated to make the laws which would control the destinies of the
colonials authorized them to erect religious establishments, which all, whether believers
or not, were required to support or attend.[65] At one time, six of the colonies
established a state religion. Other colonies, however, such as Rhode Island and
Delaware tolerated a high degree of religious diversity. Still others, which originally
tolerated only a single religion, eventually extended support to several different faiths.
[66]

This was the state of the American colonies when the unique American experiment of
separation of church and state came about. The birth of the experiment cannot be
attributed to a single cause or event. Rather, a number of interdependent practical and
ideological factors contributed in bringing it forth. Among these were the "English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of
most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary
War, the Williams-Penn tradition and the success of their experiments, the writings of
Locke, the social contract theory, the Great Awakening, and the influence of European
rationalism and deism."[67] Each of these factors shall be briefly discussed.

First, the practical factors. England's policy of opening the gates of the American
colonies to different faiths resulted in the multiplicity of sects in the colonies. With an
Erastian justification, English lords chose to forego protecting what was considered to
be the true and eternal church of a particular time in order to encourage trade and
commerce. The colonies were large financial investments which would be profitable
only if people would settle there. It would be difficult to engage in trade with persons
one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its exclusiveness,
encouraging them "to think less of the Church and more of the State and of
commerce."[68] The diversity brought about by the colonies' open gates encouraged
religious freedom and non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live together.
Secondly, because of the daily exposure to different religions, the passionate conviction
in the exclusive rightness of one's religion, which impels persecution for the sake of
one's religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment could not
survive.[69]

But while there was a multiplicity of denomination, paradoxically, there was a scarcity of
adherents. Only about four percent of the entire population of the country had a church
affiliation at the time the republic was founded.[70] This might be attributed to the
drifting to the American colonies of the skepticism that characterized European
Enlightenment.[71] Economic considerations might have also been a factor. The
individualism of the American colonist, manifested in the multiplicity of sects, also
resulted in much unaffiliated religion which treated religion as a personal non-
institutional matter. The prevalence of lack of church affiliation contributed to religious
liberty and disestablishment as persons who were not connected with any church were
not likely to persecute others for similar independence nor accede to compulsory
taxation to support a church to which they did not belong.[72]

However, for those who were affiliated to churches, the colonial policy regarding their
worship generally followed the tenor of the English Act of Toleration of 1689. In
England, this Act conferred on Protestant dissenters the right to hold public services
subject to registration of their ministers and places of worship.[73] Although the
toleration accorded to Protestant dissenters who qualified under its terms was only a
modest advance in religious freedom, it nevertheless was of some influence to the
American experiment.[74] Even then, for practical considerations, concessions had to be
made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an

evangelical religious revival originating in New England, caused a break with formal
church religion and a resistance to coercion by established churches. This movement
emphasized an emotional, personal religion that appealed directly to the individual,
putting emphasis on the rights and duties of the individual conscience and its
answerability exclusively to God. Thus, although they had no quarrel with orthodox
Christian theology as in fact they were fundamentalists, this group became staunch
advocates of separation of church and state.[75]

Then there was the Williams-Penn tradition. Roger Williams was the founder of the
colony of Rhode Island where he established a community of Baptists, Quakers and
other nonconformists. In this colony, religious freedom was not based on practical
considerations but on the concept of mutual independence of religion and government.
In 1663, Rhode Island obtained a charter from the British crown which declared that
settlers have it "much on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie in religious
concernments."[76] In Williams' pamphlet, The Bloudy Tenent of Persecution for cause of
Conscience, discussed in a Conference between Truth and Peace,[77] he articulated the
philosophical basis for his argument of religious liberty. To him, religious freedom and
separation of church and state did not constitute two but only one principle. Religious
persecution is wrong because it "confounds the Civil and Religious" and because
"States . . . are proved essentially Civil. The "power of true discerning the true fear of
God" is not one of the powers that the people have transferred to Civil Authority.
[78]
 Williams' Bloudy Tenet  is considered an epochal milestone in the history of religious
freedom and the separation of church and state.[79]

William Penn, proprietor of the land that became Pennsylvania, was also an ardent
advocate of toleration, having been imprisoned for his religious convictions as a
member of the despised Quakers. He opposed coercion in matters of conscience
because "imposition, restraint and persecution for conscience sake, highly invade the
Divine prerogative." Aside from his idealism, proprietary interests made toleration in
Pennsylvania necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At the end
of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn
was responsible in large part for the "Concessions and agreements of the Proprietors,
Freeholders, and inhabitants of West Jersey, in America", a monumental document in
the history of civil liberty which provided among others, for liberty of conscience.[80] The
Baptist followers of Williams and the Quakers who came after Penn continued the
tradition started by the leaders of their denominations. Aside from the Baptists and the
Quakers, the Presbyterians likewise greatly contributed to the evolution of separation
and freedom.[81] The Constitutional fathers who convened in Philadelphia in 1787, and
Congress and the states that adopted the First Amendment in 1791 were very familiar
with and strongly influenced by the successful examples of Rhode Island and
Pennsylvania.[82]

Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was so widely
accepted as to be deemed self-evident truth in America's Declaration of Independence.
With the doctrine of natural rights and equality set forth in the Declaration of
Independence, there was no room for religious discrimination. It was difficult to justify
inequality in religious treatment by a new nation that severed its political bonds with
the English crown which violated the self-evident truth that all men are created equal.[83]

The social contract theory was applied by many religious groups in arguing against
establishment, putting emphasis on religion as a natural right that is entirely personal
and not within the scope of the powers of a political body. That Locke and the social
contract theory were influential in the development of religious freedom and separation
is evident from the memorial presented by the Baptists to the Continental Congress in
1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in every one
the better to preserve himself, his liberty and property. The power of the society, or
Legislature constituted by them, can never be supposed to extend any further than the
common good, but is obliged to secure every one's property. To give laws, to receive
obedience, to compel with the sword, belong to none but the civil magistrate; and on
this ground we affirm that the magistrate's power extends not to establishing any
articles of faith or forms of worship, by force of laws; for laws are of no force without
penalties. The care of souls cannot belong to the civil magistrate, because his power
consists only in outward force; but pure and saving religion consists in the inward
persuasion of the mind, without which nothing can be acceptable to God.[84] (emphasis
supplied)
The idea that religion was outside the jurisdiction of civil government was acceptable to
both the religionist and rationalist. To the religionist, God or Christ did not desire that
government have that jurisdiction ("render unto Caesar that which is Caesar's"; "my
kingdom is not of this world") and to the rationalist, the power to act in the realm of
religion was not one of the powers conferred on government as part of the social
contract.[85]

Not only the social contract theory drifted to the colonies from Europe. Many of the
leaders of the Revolutionary and post-revolutionary period were also influenced by
European deism and rationalism,[86] in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine,
John Adams, Washington, Franklin, Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on
secular interests and the relegation of historic theology to the background.[87] For these
men of the enlightenment, religion should be allowed to rise and fall on its own, and the
state must be protected from the clutches of the church whose entanglements has
caused intolerance and corruption as witnessed throughout history.[88] Not only the
leaders but also the masses embraced rationalism at the end of the eighteenth century,
accounting for the popularity of Paine's Age of Reason.[89]

Finally, the events leading to religious freedom and separation in Virginia contributed
significantly to the American experiment of the First Amendment. Virginia was the "first
state in the history of the world to proclaim the decree of absolute divorce between
church and state."[90] Many factors contributed to this, among which were that half to
two-thirds of the population were organized dissenting sects, the Great Awakening had
won many converts, the established Anglican Church of Virginia found themselves on
the losing side of the Revolution and had alienated many influential laymen with its
identification with the Crown's tyranny, and above all, present in Virginia was a group of
political leaders who were devoted to liberty generally,[91] who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason,
James Madison and above the rest, Thomas Jefferson.

The first major step towards separation in Virginia was the adoption of the following
provision in the Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the manner of discharging
it, can be directed only by reason and conviction, not by force or violence; and
therefore, all men are equally entitled to the free exercise of religion according to the
dictates of conscience; and that it is the mutual duty of all to practice Christian
forbearance, love, and charity towards each other.[92] (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of establishment.
Baptists, Presbyterians and Lutherans flooded the first legislative assembly with
petitions for abolition of establishment. While the majority of the population were
dissenters, a majority of the legislature were churchmen. The legislature compromised
and enacted a bill in 1776 abolishing the more oppressive features of establishment and
granting exemptions to the dissenters, but not guaranteeing separation. It repealed the
laws punishing heresy and absence from worship and requiring the dissenters to
contribute to the support of the establishment.[93] But the dissenters were not satisfied;
they not only wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the established
church would not allow that only they would pay taxes while the rest did not, the
legislature enacted in 1779 a bill making permanent the establishment's loss of its
exclusive status and its power to tax its members; but those who voted for it did so in
the hope that a general assessment bill would be passed. Without the latter, the
establishment would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which "society for the
purpose of Religious Worship" he wished to support. On the basis of this list, collections
were to be made by the sheriff and turned over to the clergymen and teachers
designated by the religious congregation. The assessment of any person who failed to
enroll in any society was to be divided proportionately among the societies.[94] The bill
evoked strong opposition.

In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of the Christian
Religion" was introduced requiring all persons "to pay a moderate tax or contribution
annually for the support of the Christian religion, or of some Christian church,
denomination or communion of Christians, or for some form of Christian
worship."[95] This likewise aroused the same opposition to the 1779 bill. The most telling
blow against the 1784 bill was the monumental "Memorial and Remonstrance against
Religious Assessments" written by Madison and widely distributed before the
reconvening of legislature in the fall of 1785.[96] It stressed natural rights, the
government's lack of jurisdiction over the domain of religion, and the social contract
as the ideological basis of separation while also citing practical considerations such as
loss of population through migration. He wrote, viz:
Because we hold it for a `fundamental and undeniable truth,' that religion, or the duty
which we owe to our creator, and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence. The religion, then, of every man, must
be left to the conviction and conscience of every man; and it is the right of every man
to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is
unalienable, because the opinions of men, depending only on the evidence
contemplated in their own minds, cannot follow the dictates of other men; it is
unalienable, also, because what is here a right towards men, is a duty towards the
creator. It is the duty of every man to render the creator such homage, and such only
as he believes to be acceptable to him; this duty is precedent, both in order of time
and degree of obligation, to the claims of civil society. Before any man can be
considered as a member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters into any
subordinate association, must always do it with a reservation of his duty to the general
authority, much more must every man who becomes a member of any particular civil
society do it with the saving his allegiance to the universal sovereign.[97] (emphases
supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the
great number of signatures appended to the Memorial. The assessment bill was speedily
defeated.

Taking advantage of the situation, Madison called up a much earlier 1779 bill of
Jefferson which had not been voted on, the "Bill for Establishing Religious Freedom",
and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts to
influence it by temporal punishments or burdens, or by civil incapacitations, tend not
only to beget habits of hypocrisy and meanness, and are a departure from the plan of
the Holy Author of our religion, who being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty power to do;

xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to

frequent or support any religious worship, place or ministry whatsoever, nor shall be
enforced, restrained, molested or burdened in his body or goods, nor shall otherwise
suffer on account of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of religion, and that
the same shall in no wise diminish, enlarge or affect their civil capacities.[98] (emphases
supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any
thought of a general or particular establishment in Virginia.[99] But the passage of this
law was obtained not only because of the influence of the great leaders in Virginia but
also because of substantial popular support coming mainly from the two great
dissenting sects, namely the Presbyterians and the Baptists. The former were never
established in Virginia and an underprivileged minority of the population. This made
them anxious to pull down the existing state church as they realized that it was
impossible for them to be elevated to that privileged position. Apart from these
expediential considerations, however, many of the Presbyterians were sincere
advocates of separation[100] grounded on rational, secular arguments and to the
language of natural religion.[101] Influenced by Roger Williams, the Baptists, on the other
hand, assumed that religion was essentially a matter of concern of the individual and his
God, i.e., subjective, spiritual and supernatural, having no relation with the social order.
[102]
 To them, the Holy Ghost was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary ti the spirit of the
Gospel.[103] Thus, separation was necessary.[104] Jefferson's religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme Court has
not just once acknowledged that the provisions of the First Amendment of the U.S.
Constitution had the same objectives and intended to afford the same protection
against government interference with religious liberty as the Virginia Statute of
Religious Liberty.

Even in the absence of the religion clauses, the principle that government had no power
to legislate in the area of religion by restricting its free exercise or establishing it was
implicit in the Constitution of 1787. This could be deduced from the prohibition of any
religious test for federal office in Article VI of the Constitution and the assumed lack of
power of Congress to act on any subject not expressly mentioned in the Constitution.
[105]
 However, omission of an express guaranty of religious freedom and other natural
rights nearly prevented the ratification of the Constitution.[106] In the ratifying
conventions of almost every state, some objection was expressed to the absence of a
restriction on the Federal Government as regards legislation on religion.[107] Thus, in
1791, this restriction was made explicit with the adoption of the religion clauses in the
First Amendment as they are worded to this day, with the first part usually referred to
as the Establishment Clause and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof.
VI. Religion Clauses in the United States: Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment religion
clauses comes an equally broad disagreement as to what these clauses specifically
require, permit and forbid. No agreement has been reached by those who have studied
the religion clauses as regards its exact meaning and the paucity of records in Congress
renders it difficult to ascertain its meaning.[108] Consequently, the jurisprudence in this
area is volatile and fraught with inconsistencies whether within a Court decision or
across decisions.

One source of difficulty is the difference in the context in which the First Amendment
was adopted and in which it is applied today. In the 1780s, religion played a primary role
in social life - i.e., family responsibilities, education, health care, poor relief, and other
aspects of social life with significant moral dimension - while government played a
supportive and indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today, government plays
this primary role and religion plays the supportive role.[109] Government runs even family
planning, sex education, adoption and foster care programs.[110] Stated otherwise and
with some exaggeration, "(w)hereas two centuries ago, in matters of social life which
have a significant moral dimension, government was the handmaid of religion, today
religion, in its social responsibilities, as contrasted with personal faith and collective
worship, is the handmaid of government."[111] With government regulation of individual
conduct having become more pervasive,  inevitably some of those regulations would
reach conduct that for some individuals are religious. As a result, increasingly, there may
be inadvertent collisions between purely secular government actions and religion clause
values.[112]

Parallel to this expansion of government has been the expansion of religious

organizations in population, physical institutions, types of activities undertaken, and
sheer variety of denominations, sects and cults. Churches run day-care centers,
retirement homes, hospitals, schools at all levels, research centers, settlement houses,
halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass
media programs. In these activities, religious organizations complement and compete
with commercial enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches have also concerned
themselves with social and political issues as a necessary outgrowth of religious faith as
witnessed in pastoral letters on war and peace, economic justice, and human life, or in
ringing affirmations for racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion and
government. Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations and activities
exist and the laws affecting them are made. It is no longer easy for individuals to live
solely among their own kind or to shelter their children from exposure to competing
values. The result is disagreement over what laws should require, permit or prohibit;
[113]
 and agreement that if the rights of believers as well as non-believers are all to be
respected and given their just due, a rigid, wooden interpretation of the religion clauses
that is blind to societal and political realities must be avoided.[114]

Religion cases arise from different circumstances. The more obvious ones arise from a
government action which purposely aids or inhibits religion. These cases are easier to
resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases
poses difficulty in ascertaining proof of intent to aid or inhibit religion.[115] The more
difficult religion clause cases involve government action with a secular purpose and
general applicability which incidentally or inadvertently aids or burdens religious
exercise. In Free Exercise Clause cases, these government actions are referred to as
those with "burdensome effect" on religious exercise even if the government action is
not religiously motivated.[116] Ideally, the legislature would recognize the religions and
their practices and would consider them, when practical, in enacting laws of general
application. But when the legislature fails to do so, religions that are threatened and
burdened turn to the courts for protection.[117] Most of these free exercise claims
brought to the Court are for exemption, not invalidation of the facially neutral law that
has a "burdensome" effect.[118]
With the change in political and social context and the increasing inadvertent collisions
between law and religious exercise, the definition of religion for purposes of
interpreting the religion clauses has also been modified to suit current
realities. Defining religion is a difficult task for even theologians, philosophers and
moralists cannot agree on a comprehensive definition. Nevertheless, courts must define
religion for constitutional and other legal purposes.[119] It was in the 1890 case of Davis
v. Beason[120] that the United States Supreme Court first had occasion to define
religion, viz:
The term `religion' has reference to one's views of his relations to his Creator, and to
the obligations they impose of reverence for his being and character, and of obedience
to his will. It is often confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the Constitution, in
declaring that Congress shall make no law respecting the establishment of religion, or
forbidding the free exercise thereof, was intended to allow everyone under the
jurisdiction of the United States to entertain such notions respecting his relations to his
Maker and the duties they impose as may be approved by his judgment and conscience,
and to exhibit his sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular attitudes in 1890.

In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion
"embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths."[123] By the 1960s,
American pluralism in religion had flourished to include non-theistic creeds from Asia
such as Buddhism and Taoism.[124] In 1961, the Court, in Torcaso v. Watkins,
[125]
 expanded the term "religion" to non-theistic beliefs such as Buddhism, Taoism,
Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional
problem in United States v. Seeger[126] which involved four men who claimed
"conscientious objector" status in refusing to serve in the Vietnam War. One of the four,
Seeger, was not a member of any organized religion opposed to war, but when
specifically asked about his belief in a Supreme Being, Seeger stated that "you could call
(it) a belief in a Supreme Being or God. These just do not happen to be the words that I
use." Forest Peter, another one of the four claimed that after considerable meditation
and reflection "on values derived from the Western religious and philosophical
tradition," he determined that it would be "a violation of his moral code to take human
life and that he considered this belief superior to any obligation to the state." The Court
avoided a constitutional question by broadly interpreting not the Free Exercise Clause,
but the statutory definition of religion in the Universal Military Training and Service Act
of 1940 which exempt from combat anyone "who, by reason of religious training and
belief, is conscientiously opposed to participation in war in any form." Speaking for the
Court, Justice Clark ruled, viz:
Congress, in using the expression `Supreme Being' rather than the designation `God,'
was merely clarifying the meaning of religious tradition and belief so as to embrace all
religions and to exclude essentially political, sociological, or philosophical views
(and) the test of belief `in relation to a Supreme Being' is whether a given belief that is
sincere and meaningful occupies a place in the life of its possessor parallel to the
orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were conscientious
objectors possessed of such religious belief and training.

Federal and state courts have expanded the definition of religion in Seeger to include

even non-theistic beliefs such as Taoism or Zen Buddhism. It has been proposed that
basically, a creed must meet four criteria to qualify as religion under the First
Amendment. First, there must be belief in God or some parallel belief that occupies a
central place in the believer's life. Second, the religion must involve a moral code
transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.[127] Fourth, there must be some associational ties,
[128]
 although there is also a view that religious beliefs held by a single person rather than
being part of the teachings of any kind of group or sect are entitled to the protection of
the Free Exercise Clause.[129]

Defining religion is only the beginning of the difficult task of deciding religion clause
cases. Having hurdled the issue of definition, the court then has to draw lines to
determine what is or is not permissible under the religion clauses. In this task,
the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides
of the same coin.[130] In devoting two clauses to religion, the Founders were stating not
two opposing thoughts that would cancel each other out, but two complementary
thoughts that apply in different ways in different circumstances.[131] The purpose of the
religion clauses - both in the restriction it imposes on the power of the government to
interfere with the free exercise of religion and the limitation on the power of
government to establish, aid, and support religion - is the protection and promotion of
religious liberty.[132] The end, the goal, and the rationale of the religion clauses is this
liberty.[133] Both clauses were adopted to prevent government imposition of religious
orthodoxy; the great evil against which they are directed is government-induced
homogeneity.[134] The Free Exercise Clause directly articulates the common objective of
the two clauses and the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most familiar and for
which government historically had demonstrated a propensity.[135] In other words, free
exercise is the end, proscribing establishment is a necessary means to this end to
protect the rights of those who might dissent from whatever religion is established.[136] It
has even been suggested that the sense of the First Amendment is captured if it were to
read as "Congress shall make no law respecting an establishment of religion
or otherwise prohibiting the free exercise thereof" because the fundamental and single
purpose of the two religious clauses is to "avoid any infringement on the free exercise of
religions"[137] Thus, the Establishment Clause mandates separation of church and state to
protect each from the other, in service of the larger goal of preserving religious liberty.
The effect of the separation is to limit the opportunities for any religious group to
capture the state apparatus to the disadvantage of those of other faiths, or of no faith at
all[138] because history has shown that religious fervor conjoined with state power is
likely to tolerate far less religious disagreement and disobedience from those who hold
different beliefs than an enlightened secular state.[139] In the words of the U.S. Supreme
Court, the two clauses are interrelated, viz: "(t)he structure of our government has, for
the preservation of civil liberty, rescued the temporal institutions from religious
interference. On the other hand, it has secured religious liberty from the invasion of the
civil authority."[140]
In upholding religious liberty as the end goal in religious clause cases, the line the
court draws to ensure that government does not establish and instead remains
neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to insure that
no religion be sponsored or favored, none commanded and none inhibited.
[141]
 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably different,[142] even
opposing, strains of jurisprudence on the religion clauses: separation (in the form of
strict separation or the tamer version of strict neutrality or
separation)  and benevolent neutrality or accommodation. A view of the landscape of
U.S. religion clause cases would be useful in understanding these two strains, the scope
of protection of each clause, and the tests used in religious clause cases. Most of these
cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v.
United States.[143] This landmark case involved Reynolds, a Mormon who proved that it
was his religious duty to have several wives and that the failure to practice polygamy by
male members of his religion when circumstances would permit would be punished
with damnation in the life to come. Reynolds' act of contracting a second marriage
violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he
was convicted. The Court affirmed Reynolds' conviction, using what in jurisprudence
would be called the belief-action test which allows absolute protection to belief but not
to action. It cited Jefferson's Bill Establishing Religious Freedom which, according to the
Court, declares "the true distinction between what properly belongs to the Church and
what to the State."[144] The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of opinion, and
to restrain the profession or propagation of principles on supposition of their ill
tendency, is a dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and good order.
[145]
 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left free to
reach actions which were in violation of social duties or subversive of good order. . .

Laws are made for the government of actions, and while they cannot interfere with
mere religious belief and opinions, they may with practices. Suppose one believed that
human sacrifice were a necessary part of religious worship, would it be seriously
contended that the civil government under which he lived could not interfere to prevent
a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the
funeral pile of her dead husband, would it be beyond the power of the civil government
to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the
United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this would
be to make the professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself. Government could
exist only in name under such circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by the Free Exercise
Clause from regulating individual religious beliefs, but placed no restriction on the ability
of the state to regulate religiously motivated conduct. It was logical for belief to be
accorded absolute protection because any statute designed to prohibit a particular
religious belief unaccompanied by any conduct would most certainly be motivated only
by the legislature's preference of a competing religious belief. Thus, all cases of
regulation of belief would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state regulations of conduct are for
public welfare purposes and have nothing to do with the legislature's religious
preferences. Any burden on religion that results from state regulation of conduct arises
only when particular individuals are engaging in the generally regulated conduct
because of their particular religious beliefs. These burdens are thus usually inadvertent
and did not figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any problem.
[147]
 The Free Exercise Clause thus gave no protection against the proscription of actions
even if considered central to a religion unless the legislature formally outlawed the
belief itself.[148]

This belief-action distinction was held by the Court for some years as shown by cases
where the Court upheld other laws which burdened the practice of the Mormon religion
by imposing various penalties on polygamy such as the Davis case and Church of Latter
Day Saints v. United States.[149] However, more than a century since Reynolds was
decided, the Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings in the earlier
Free Exercise cases have gone unchallenged. The belief-action distinction is still of some
importance though as there remains an absolute prohibition of governmental
proscription of beliefs.[150]

The Free Exercise Clause accords absolute protection to individual religious convictions
and beliefs[151] and proscribes government from questioning a person's beliefs or
imposing penalties or disabilities based solely on those beliefs. The Clause extends
protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous
Court struck down a state law requiring as a qualification for public office an oath
declaring belief in the existence of God. The protection also allows courts to look into
the good faith of a person in his belief, but prohibits inquiry into the truth of a person's
religious beliefs. As held in United States v. Ballard,[153] "(h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put to the
proof of their religious doctrines or beliefs."

Next to belief which enjoys virtually absolute protection, religious speech and
expressive religious conduct are accorded the highest degree of protection. Thus, in
the 1940 case of Cantwell v. Connecticut,[154] the Court struck down a state law
prohibiting door-to-door solicitation for any religious or charitable cause without prior
approval of a state agency. The law was challenged by Cantwell, a member of the
Jehovah's Witnesses which is committed to active proselytizing. The Court invalidated
the state statute as the prior approval necessary was held to be a censorship of religion
prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields the tenets of one may seem the rankest error to his neighbor. To persuade
others to his point of view, the pleader, as we know, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or state, and even to
false statement. But the people of this nation have ordained in the light of history, that,
in spite of the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens of a
democracy.[155]
Cantwell took a step forward from the protection afforded by the Reynolds case in that
it not only affirmed protection of belief but also freedom to act for the propagation of
that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the second cannot be. Conduct remains
subject to regulation for the protection of society. . . In every case, the power to
regulate must be so exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom. (emphasis supplied)[156]
The Court stated, however, that government had the power to regulate the times,
places, and manner of solicitation on the streets and assure the peace and safety of the
community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled that police
could not prohibit members of the Jehovah's Witnesses from peaceably and orderly
proselytizing on Sundays merely because other citizens complained. In another case
likewise involving the Jehovah's Witnesses, Niemotko v. Maryland,[158] the Court
unanimously held unconstitutional a city council's denial of a permit to the Jehovah's
Witnesses to use the city park for a public meeting. The city council's refusal was
because of the "unsatisfactory" answers of the Jehovah's Witnesses to questions about
Catholicism, military service, and other issues. The denial of the public forum was
considered blatant censorship. While protected, religious speech in the public forum is
still subject to reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be limited to
certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic
as held in the case of Heffron v. International Society for Krishna Consciousness.[159]

The least protected under the Free Exercise Clause is religious conduct, usually in the
form of unconventional religious practices. Protection in this realm depends on the
character of the action and the government rationale for regulating the action.[160] The
Mormons' religious conduct of polygamy is an example of unconventional religious
practice. As discussed in the Reynolds case above, the Court did not afford protection to
the practice. Reynolds was reiterated in the 1890 case of Davis again involving
Mormons, where the Court held, viz: "(c)rime is not the less odious because sanctioned
by what any particular sect may designate as religion."[161]

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test,

regulation of religiously dictated conduct would be upheld no matter how central the
conduct was to the exercise of religion and no matter how insignificant was the
government's non-religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic belief-action distinction
and instead recognized the deliberate-inadvertent distinction, i.e., the distinction
between deliberate state interference of religious exercise for religious reasons which
was plainly unconstitutional and government's inadvertent interference with religion in
pursuing some secular objective.[162] In the 1940 case of Minersville School District v.
Gobitis,[163] the Court upheld a local school board requirement that all public school
students participate in a daily flag salute program, including the Jehovah's Witnesses
who were forced to salute the American flag in violation of their religious training, which
considered flag salute to be worship of a "graven image." The Court recognized that the
general requirement of compulsory flag salute inadvertently burdened the Jehovah
Witnesses' practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the "basis of national
security." Thus, although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to hold that the Free
Exercise Clause presented no problem to interference with religion that was inadvertent
no matter how serious the interference, no matter how trivial the state's non-religious
objectives, and no matter how many alternative approaches were available to the state
to pursue its objectives with less impact on religion, so long as government was acting in
pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v.

Barnette[164] which involved a similar set of facts and issue. The Court recognized that
saluting the flag, in connection with the pledges, was a form of utterance and the flag
salute program was a compulsion of students to declare a belief. The Court ruled that
"compulsory unification of opinions leads only to the unanimity of the graveyard" and
exempt the students who were members of the Jehovah's Witnesses from saluting the
flag. A close scrutiny of the case, however, would show that it was decided not on the
issue of religious conduct as the Court said, "(n)or does the issue as we see it turn on
one's possession of particular religious views or the sincerity with which they are held.
While religion supplies appellees' motive for enduring the discomforts of making the
issue in this case, many citizens who do not share these religious views hold such a
compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)
[165]
 The Court pronounced, however, that, "freedoms of speech and of press, of
assembly, and of worship . . . are susceptible only of restriction only to prevent grave
and immediate danger to interests which the state may lawfully protect."[166] The Court
seemed to recognize the extent to which its approach in Gobitis subordinated the
religious liberty of political minorities - a specially protected constitutional value - to the
common everyday economic and public welfare objectives of the majority in the
legislature. This time, even inadvertent interference with religion must pass judicial
scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing
to override religious liberty. But the seeds of this heightened scrutiny would only grow
to a full flower in the 1960s.[167]

Nearly a century after Reynolds employed the belief-action test, the Warren Court

began the modern free exercise jurisprudence.[168] A two-part balancing test was
established in Braunfeld v. Brown[169] where the Court considered the constitutionality
of applying Sunday closing laws to Orthodox Jews whose beliefs required them to
observe another day as the Sabbath and abstain from commercial activity on Saturday.
Chief Justice Warren, writing for the Court, found that the law placed a severe burden
on Sabattarian retailers. He noted, however, that since the burden was the indirect
effect of a law with a secular purpose, it would violate the Free Exercise Clause only if
there were alternative ways of achieving the state's interest. He employed a two-part
balancing test of validity where the first step was for plaintiff to show that the
regulation placed a real burden on his religious exercise. Next, the burden would be
upheld only if the state showed that it was pursuing an overriding secular goal by the
means which imposed the least burden on religious practices.[170] The Court found that
the state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this interest
but to require Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case
of Sherbert v. Verner.[171] This test was similar to the two-part balancing test in
Braunfeld,[172] but this latter test stressed that the state interest was not merely any
colorable state interest, but must be paramount and compelling to override the free
exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to work on
Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state legislation.
If, therefore, the decision of the South Carolina Supreme Court is to withstand
appellant's constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of appellant's religion
may be justified by a `compelling state interest in the regulation of a subject within
the State's constitutional power to regulate. . .' NAACP v. Button, 371 US 415, 438 9 L
ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient
to merely show a rational relationship of the substantial infringement to the religious
right and a colorable state interest. "(I)n this highly sensitive constitutional area,
`[o]nly the gravest abuses, endangering paramount interests, give occasion for
permissible limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315."[174] The Court found that there was no such compelling state interest to override
Sherbert's religious liberty. It added that even if the state could show that Sherbert's
exemption would pose serious detrimental effects to the unemployment compensation
fund and scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge this burden. The Court
thus carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert's benefits would force her to choose
between receiving benefits and following her religion. This choice placed "the same kind
of burden upon the free exercise of religion as would a fine imposed against (her) for
her Saturday worship." This germinal case of Sherbert firmly established the exemption
doctrine,[175] viz:
It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought to
be granted unless some `compelling state interest' intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early
as Braunfeld), the Court moved from the doctrine that inadvertent or incidental
interferences with religion raise no problem under the Free Exercise Clause to the
doctrine that such interferences violate the Free Exercise Clause in the absence of a
compelling state interest - the highest level of constitutional scrutiny short of a holding
of a per se  violation. Thus, the problem posed by the belief-action test and
the deliberate-inadvertent distinction was addressed.[176]

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court,
the rationale in Sherbert continued to be applied. In Thomas v. Review
Board[177] and Hobbie v. Unemployment Appeals Division,[178] for example, the Court
reiterated the exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation from an
employee who resigned or was discharged due to unwillingness to depart from religious
practices and beliefs that conflicted with job requirements. But not every governmental
refusal to allow an exemption from a regulation which burdens a sincerely held religious
belief has been invalidated, even though strict or heightened scrutiny is applied.
In United States v. Lee,[179] for instance, the Court using strict scrutiny and referring
to Thomas, upheld the federal government's refusal to exempt Amish employers who
requested for exemption from paying social security taxes on wages on the ground of
religious beliefs. The Court held that "(b)ecause the broad public interest in maintaining
a sound tax system is of such a high order, religious belief in conflict with the payment
of taxes affords no basis for resisting the tax."[180] It reasoned that unlike in Sherbert, an
exemption would significantly impair government's achievement of its objective - "the
fiscal vitality of the social security system;" mandatory participation is indispensable to
attain this objective. The Court noted that if an exemption were made, it would be hard
to justify not allowing a similar exemption from general federal taxes where the
taxpayer argues that his religious beliefs require him to reduce or eliminate his
payments so that he will not contribute to the government's war-related activities, for
example.

The strict scrutiny and compelling state interest test significantly increased the degree
of protection afforded to religiously motivated conduct. While not affording absolute
immunity to religious activity, a compelling secular justification was necessary to uphold
public policies that collided with religious practices. Although the members of the Court
often disagreed over which governmental interests should be considered compelling,
thereby producing dissenting and separate opinions in religious conduct cases,
this general test established a strong presumption in favor of the free exercise of
religion.[181]

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the
Court upheld the religious practice of the Old Order Amish faith over the state's
compulsory high school attendance law. The Amish parents in this case did not permit
secular education of their children beyond the eighth grade. Chief Justice Burger, writing
for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a legitimate
religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise
Clause. Long before there was general acknowledgement of the need for universal
education, the Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm, even if less
explicit, prohibition against the establishment of any religion. The values underlying
these two provisions relating to religion have been zealously protected, sometimes even
at the expense of other interests of admittedly high social importance. . .

The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion. . .

. . . our decisions have rejected the idea that that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in the exercise
of their undoubted power to promote the health, safety, and general welfare, or the
Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the
State is not to deny that there are areas of conduct protected by the Free Exercise
Clause of the First Amendment and thus beyond the power of the State to control,
even under regulations of general applicability. . . .This case, therefore, does not
become easier because respondents were convicted for their "actions" in refusing to
send their children to the public high school; in this context belief and action cannot be
neatly confined in logic-tight compartments. . . [183]
The onset of the 1990s, however, saw a major setback in the protection afforded by
the Free Exercise Clause. In Employment Division, Oregon Department of Human
Resources v. Smith,[184] the sharply divided Rehnquist Court dramatically departed from
the heightened scrutiny and compelling justification approach and imposed serious
limits on the scope of protection of religious freedom afforded by the First Amendment.
In this case, the well-established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in conflict with the state's
interest in prohibiting the use of illicit drugs. Oregon's controlled substances statute
made the possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social service agency in
Oregon. Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for
hundreds of years. The social service agency fired Smith and Black citing their use of
peyote as "job-related misconduct". They applied for unemployment compensation, but
the Oregon Employment Appeals Board denied their application as they were
discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled
that "if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a
generally applicable and otherwise valid law, the First Amendment has not been
offended." In other words, the Free Exercise Clause would be offended only if a
particular religious practice were singled out for proscription. The majority opinion
relied heavily on the Reynolds case and in effect, equated Oregon's drug prohibition law
with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion
held, viz:
We have never invalidated any governmental action on the basis of the Sherbert test
except the denial of unemployment compensation.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment

compensation field, we would not apply it to require exemptions from a generally
applicable criminal law. . .

We conclude today that the sounder approach, and the approach in accord with the
vast majority of our precedents, is to hold the test inapplicable to such challenges. The
government's ability to enforce generally applicable prohibitions of socially harmful
conduct, like its ability to carry out other aspects of public policy, "cannot depend on
measuring the effects of a governmental action on a religious objector's spiritual
development." . . .To make an individual's obligation to obey such a law contingent
upon the law's coincidence with his religious beliefs except where the State's interest
is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto
himself," . . . - contradicts both constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of
the compelling governmental interest test was the most controversial part of the
decision. Although she concurred in the result that the Free Exercise Clause had not
been offended, she sharply criticized the majority opinion as a dramatic departure "from
well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our
Nation's fundamental commitment to religious liberty." This portion of her concurring
opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from
the Court's decision. Justice O'Connor asserted that "(t)he compelling state interest test
effectuates the First Amendment's command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear
and compelling government interest `of the highest order'." Justice Blackmun
registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He
charged the majority with "mischaracterizing" precedents and "overturning. . . settled
law concerning the Religion Clauses of our Constitution." He pointed out that the Native
American Church restricted and supervised the sacramental use of peyote. Thus, the
state had no significant health or safety justification for regulating the sacramental drug
use. He also observed that Oregon had not attempted to prosecute Smith or Black, or
any Native Americans, for that matter, for the sacramental use of peyote. In conclusion,
he said that "Oregon's interest in enforcing its drug laws against religious use of peyote
(was) not sufficiently compelling to outweigh respondents' right to the free exercise of
their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's

standard in Smith virtually eliminated the requirement that the government justify with
a compelling state interest the burdens on religious exercise imposed by laws neutral
toward religion. The Smith doctrine is highly unsatisfactory in several respects and has
been criticized as exhibiting a shallow understanding of free exercise jurisprudence.
[185]
 First, the First amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny. But regulatory interference
with a minority religion as a result of ignorance or sensitivity of the religious and
political majority is no less an interference with the minority's religious freedom. If the
regulation had instead restricted the majority's religious practice, the majoritarian
legislative process would in all probability have modified or rejected the regulation.
Thus, the imposition of the political majority's non-religious objectives at the expense of
the minority's religious interests implements the majority's religious viewpoint at the
expense of the minority's. Second, government impairment of religious liberty would
most often be of the inadvertent kind as in Smith considering the political culture where
direct and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent
interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-
Smith doctrine simply defies common sense. The state should not be allowed to
interfere with the most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective. This is especially
true when there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion.[186]

Thus, the Smith decision has been criticized not only for increasing the power of the
state over religion but as discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,[187] contrary to the original
theory of the First Amendment.[188] Undeniably, claims for judicial exemption emanate
almost invariably from relatively politically powerless minority religions
and Smith virtually wiped out their judicial recourse for exemption.[189] Thus,
the Smith decision elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free Exercise
Clause to disappear.[190] So much was the uproar that a majority in Congress was
convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA
prohibited government at all levels from substantially burdening a person's free exercise
of religion, even if such burden resulted from a generally applicable rule, unless the
government could demonstrate a compelling state interest and the rule constituted the
least restrictive means of furthering that interest.[191] RFRA, in effect, sought to overturn
the substance of the Smith ruling and restore the status quo prior to Smith. Three years
after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA
unconstitutional in City of Boerne v. Flores.[192] The Court ruled that "RFRA contradicts
vital principles necessary to maintain separation of powers and the federal balance." It
emphasized the primacy of its role as interpreter of the Constitution and unequivocally
rejected, on broad institutional grounds, a direct congressional challenge of final judicial
authority on a question of constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah[193] which

was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the
Santeria, a blend of Roman Catholicism and West African religions brought to the
Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill,
torment, torture, or mutilate an animal in public or private ritual or ceremony not for
the primary purpose of food consumption." The ordinance came as a response to the
local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for
the majority, carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of the Santeria in
that it forbade animal slaughter only insofar as it took place within the context of
religious rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause, religious
belief is absolutely protected, religious speech and proselytizing are highly protected
but subject to restraints applicable to non-religious speech, and unconventional
religious practice receives less protection; nevertheless conduct, even if its violates a
law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause

The Court's first encounter with the Establishment Clause was in the 1947 case
of Everson v. Board of Education.[195] Prior cases had made passing reference to the
Establishment Clause[196] and raised establishment questions but were decided on other
grounds.[197] It was in the Everson case that the U.S. Supreme Court adopted Jefferson's
metaphor of "a wall of separation between church and state" as encapsulating the
meaning of the Establishment Clause. The often and loosely used phrase "separation of
church and state" does not appear in the U.S. Constitution. It became part of U.S.
jurisprudence when the Court in the 1878 case of Reynolds v. United States[198] quoted
Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the
history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and his God;
that he owes account to none other for his faith or his worship; that the legislative
powers of the Government reach actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American people which declared that their
Legislature should `make no law respecting an establishment of religion or prohibiting
the free exercise thereof,' thus building a wall of separation between Church and State.
[199]
 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from
an acknowledged leader of the advocates of the measure, it may be accepted almost as
an authoritative declaration of the scope and effect of the amendment thus
secured."[200]

The interpretation of the Establishment Clause has in large part been in cases involving
education, notably state aid to private religious schools and prayer in public schools.
[201]
 In Everson v. Board of Education, for example, the issue was whether a New Jersey
local school board could reimburse parents for expenses incurred in transporting their
children to and from Catholic schools. The reimbursement was part of a general
program under which all parents of children in public schools and nonprofit private
schools, regardless of religion, were entitled to reimbursement for transportation costs.
Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on
the child benefit theory, i.e., that the school board was merely furthering the state's
legitimate interest in getting children "regardless of their religion, safely and
expeditiously to and from accredited schools." The Court, after narrating the history of
the First Amendment in Virginia, interpreted the Establishment Clause, viz:
The `establishment of religion' clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over another. Neither
can force nor influence a person to go to or remain away from church against his will or
force him to profess a belief or disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church attendance or non-
attendance. No tax in any amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever form they may adopt
to teach or practice religion. Neither a state nor the Federal Government can, openly or
secretly participate in the affairs of any religious organizations or groups and vice
versa. In the words of Jefferson, the clause against establishment of religion by law
was intended to erect "a wall of separation between Church and State."[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall must be
kept high and impregnable. We could not approve the slightest breach. New Jersey has
not breached it here.[203]
By 1971, the Court integrated the different elements of the Court's Establishment
Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-
pronged test in Lemon v. Kurtzman[204] in determining the constitutionality of policies
challenged under the Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of teachers' salaries,
textbooks, and instructional materials in secular subjects and a Rhode Island statute
providing salary supplements to teachers in parochial schools. The Lemon test requires
a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative purpose;
second, its primary or principal effect must be one that neither advances nor inhibits
religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct
1923 [1968]); finally, the statute must not foster `an excessive entanglement with
religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
[1970])" (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania
statutory program and Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.

The most controversial of the education cases involving the Establishment Clause are
the school prayer decisions. "Few decisions of the modern Supreme Court have been
criticized more intensely than the school prayer decisions of the early 1960s."[206] In the
1962 case of Engel v. Vitale,[207] the Court invalidated a New York Board of Regents
policy that established the voluntary recitation of a brief generic prayer by children in
the public schools at the start of each school day. The majority opinion written by
Justice Black stated that "in this country it is no part of the business of government to
compose official prayers for any group of the American people to recite as part of a
religious program carried on by government." In fact, history shows that this very
practice of establishing governmentally composed prayers for religious services was one
of the reasons that caused many of the early colonists to leave England and seek
religious freedom in America. The Court called to mind that the first and most
immediate purpose of the Establishment Clause rested on the belief that a union of
government and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School District v.
Schempp[208] and Murray v. Curlett[209] where the Court struck down the practice of Bible
reading and the recitation of the Lord's prayer in the Pennsylvania and Maryland
schools. The Court held that to withstand the strictures of the Establishment Clause, a
statute must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome `neutrality' of which this Court's cases speak thus stems from a
recognition of the teachings of history that powerful sects or groups might bring about a
fusion of governmental and religious functions or a concert or dependency of one upon
the other to the end that official support of the State of Federal Government would be
placed behind the tenets of one or of all orthodoxies. This the Establishment Clause
prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which
recognizes the value of religious training, teaching and observance and, more
particularly, the right of every person to freely choose his own course with reference
thereto, free of any compulsion from the state.[210]
The school prayer decisions drew furious reactions. Religious leaders and conservative
members of Congress and resolutions passed by several state legislatures condemned
these decisions.[211] On several occasions, constitutional amendments have been
introduced in Congress to overturn the school prayer decisions. Still, the Court has
maintained its position and has in fact reinforced it in the 1985 case of Wallace v.
Jaffree[212] where the Court struck down an Alabama law that required public school
students to observe a moment of silence "for the purpose of meditation or voluntary
prayer" at the start of each school day.

Religious instruction in public schools has also pressed the Court to interpret the
Establishment Clause. Optional religious instruction within public school premises and
instructional time were declared offensive of the Establishment Clause in the 1948 case
of McCollum v. Board of Education,[213] decided just a year after the seminal Everson
case. In this case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer classes in
religious instruction to public school students in grades four to nine. Religion classes
were attended by pupils whose parents signed printed cards requesting that their
children be permitted to attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from
thirty to forty minutes during regular class hours in the regular classrooms of the school
building. The religious teachers were employed at no expense to the school authorities
but they were subject to the approval and supervision of the superintendent of schools.
Students who did not choose to take religious instruction were required to leave their
classrooms and go to some other place in the school building for their secular studies
while those who were released from their secular study for religious instruction were
required to attend the religious classes. The Court held that the use of tax-supported
property for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education amounted to a
prohibited use of tax-established and tax-supported public school system to aid religious
groups spread their faith. The Court rejected the claim that the Establishment Clause
only prohibited government preference of one religion over another and not an
impartial governmental assistance of all religions. In Zorach v. Clauson,[214] however, the
Court upheld released time programs allowing students in public schools to leave
campus upon parental permission to attend religious services while other students
attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First
Amendment does not require that in every and all respects there shall be a separation
of Church and State." The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and the force of
the public school was used to promote that instruction. . . We follow the McCollum
case. But we cannot expand it to cover the present released time program unless
separation of Church and State means that public institutions can make no adjustments
of their schedules to accommodate the religious needs of the people. We cannot read
into the Bill of Rights such a philosophy of hostility to religion.[215]
In the area of government displays or affirmations of belief, the Court has given leeway
to religious beliefs and practices which have acquired a secular meaning and have
become deeply entrenched in history. For instance, in McGowan v. Maryland,[216] the
Court upheld laws that prohibited certain businesses from operating on Sunday despite
the obvious religious underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this day of rest happened to
be the day of worship for most Christians, the Court held, viz:

It is common knowledge that the first day of the week has come to have special
significance as a rest day in this country. People of all religions and people with no
religion regard Sunday as a time for family activity, for visiting friends and relatives, for
later sleeping, for passive and active entertainments, for dining out, and the like.[217]

In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraska's

policy of beginning legislative sessions with prayers offered by a Protestant chaplain
retained at the taxpayers' expense. The majority opinion did not rely on the Lemon test
and instead drew heavily from history and the need for accommodation of popular
religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years, there can be
no doubt that the practice of opening legislative sessions with prayer has become the
fabric of our society. To invoke Divine guidance on a public body entrusted with making
the laws is not, in these circumstances, an "establishment" of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely held among
the people of this country. As Justice Douglas observed, "(w)e are a religious people
whose institutions presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306, 313
[1952])[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would "inevitably be
embarrassed if it were to attempt to strike down a practice that occurs in nearly every
legislature in the United States, including the U.S. Congress."[220] That Marsh was not an
aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,
[221]
 the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision,
the majority opinion hardly employed the Lemon test and again relied on history and
the fact that the creche had become a "neutral harbinger of the holiday season" for
many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption. By
tradition, church and charitable institutions have been exempt from local property taxes
and their income exempt from federal and state income taxes. In the 1970 case of Walz
v. Tax Commission,[222] the New York City Tax Commission's grant of property tax
exemptions to churches as allowed by state law was challenged by Walz on the theory
that this required him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:
It has not singled out one particular church or religious group or even churches as such;
rather, it has granted exemptions to all houses of religious worship within a broad class
of property owned by non-profit, quasi-public corporations . . . The State has an
affirmative policy that considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the public interest.
[223]

The Court added that the exemption was not establishing religion but "sparing the
exercise of religion from the burden of property taxation levied on private profit
institutions"[224] and preventing excessive entanglement between state and religion. At
the same time, the Court acknowledged the long-standing practice of religious tax
exemption and the Court's traditional deference to legislative bodies with respect to the
taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning
with pre-Revolutionary colonial times, than for the government to exercise . . . this
kind of benevolent neutrality toward churches and religious exercise generally so long
as none was favored over others and none suffered interference.[225] (emphasis
supplied)
C. Strict Neutrality v. Benevolent Neutrality

To be sure, the cases discussed above, while citing many landmark decisions in the
religious clauses area, are but a small fraction of the hundreds of religion clauses cases
that the U.S. Supreme Court has passed upon. Court rulings contrary to or making
nuances of the above cases may be cited. Professor McConnell poignantly recognizes
this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead
the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a moment of silence in the schools for children
to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional
for a state to require employers to accommodate their employees' work schedules to
their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10
[1985]) but constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath leads to
discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the
government to give money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to
teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is
constitutional for the government to provide religious school pupils with books (Board
of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter,
433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of
Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip
(Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-mandated
standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US
646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub.
Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226]
But the purpose of the overview is not to review the entirety of the U.S. religion clause
jurisprudence nor to extract the prevailing case law regarding particular religious beliefs
or conduct colliding with particular government regulations. Rather, the cases discussed
above suffice to show that, as legal scholars observe, this area of jurisprudence
has demonstrated two main standards used by the Court in deciding religion clause
cases: separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with the
separationists, strict or tame.[227] But the accommodationists have also attracted a
number of influential scholars and jurists.[228] The two standards producing two streams
of jurisprudence branch out respectively from the history of the First Amendment in
England and the American colonies and climaxing in Virginia as narrated in this opinion
and officially acknowledged by the Court in Everson, and from American societal life
which reveres religion and practices age-old religious traditions. Stated
otherwise, separation - strict or tame - protects the principle of church-state separation
with a rigid reading of the principle while benevolent neutrality protects religious
realities, tradition and established practice with a flexible reading of the principle.
[229]
 The latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress intended to allow
government support of religion, at least as long as that support did not discriminate in
favor of one particular religion. . . the Supreme Court has overlooked many important
pieces of history. Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and fasting during his
presidency, and he sponsored Jefferson's bill for punishing Sabbath breakers; moreover,
while president, Jefferson allowed federal support of religious missions to the Indians. . .
And so, concludes one recent book, `there is no support in the Congressional records
that either the First Congress, which framed the First Amendment, or its principal
author and sponsor, James Madison, intended that Amendment to create a state of
complete independence between religion and government. In fact, the evidence in the
public documents goes the other way.[230] (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent neutrality that
gives room for accommodation, less than twenty-four hours after Congress adopted the
First Amendment's prohibition on laws respecting an establishment of religion, Congress
decided to express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a national day
of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one
on the ground that the move was a "mimicking of European customs, where they made
a mere mockery of thanksgivings", the other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further recorded discussion.[231] Thus,
accommodationists also go back to the framers to ascertain the meaning of the First
Amendment, but prefer to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19th century and that
America was less specifically Christian during those years than at any other time before
or since,[232] accommodationaists claim that American citizens at the time of the
Constitution's origins were a remarkably religious people in particularly Christian terms.
[233]

The two streams of jurisprudence - separationist or accommodationist - are anchored

on a different reading of the "wall of separation." The strict separtionist view holds
that Jefferson meant the "wall of separation" to protect the state from the church.
Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized
by the rationalism and anticlericalism of that philosophic bent.[234] He has often been
regarded as espousing Deism or the rationalistic belief in a natural religion and natural
law divorced from its medieval connection with divine law, and instead adhering to a
secular belief in a universal harmony.[235] Thus, according to this Jeffersonian view, the
Establishment Clause being meant to protect the state from the church, the state's
hostility towards religion allows no interaction between the two.[236] In fact, when
Jefferson became President, he refused to proclaim fast or thanksgiving days on the
ground that these are religious exercises and the Constitution prohibited the
government from intermeddling with religion.[237] This approach erects an absolute
barrier to formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state adjust its
secular programs to alleviate burdens the programs placed on believers.[238] Only the
complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views thus a strict
"wall of separation" is necessary.[239] Strict separation faces difficulties, however, as it is
deeply embedded in history and contemporary practice that enormous amounts of aid,
both direct and indirect, flow to religion from government in return for huge amounts of
mostly indirect aid from religion. Thus, strict separationists are caught in an awkward
position of claiming a constitutional principle that has never existed and is never likely
to.[240]

A tamer version of the strict separationist view, the strict neutrality or separationist

view is largely used by the Court, showing the Court's tendency to press relentlessly
towards a more secular society.[241] It finds basis in the Everson case where the Court
declared that Jefferson's "wall of separation" encapsulated the meaning of the First
Amendment but at the same time held that the First Amendment "requires the state to
be neutral in its relations with groups of religious believers and non-believers; it does
not require the state to be their adversary. State power is no more to be used so as to
handicap religions than it is to favor them." (emphasis supplied)[242] While the strict
neutrality approach is not hostile to religion, it is strict in holding that religion may not
be used as a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only secular criteria
may be the basis of government action. It does not permit, much less require,
accommodation of secular programs to religious belief.[243] Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of the first
amendment is that the freedom and separation clauses should be read as a single
precept that government cannot utilize religion as a standard for action or inaction
because these clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden.[244]
The Court has repeatedly declared that religious freedom means government neutrality
in religious matters and the Court has also repeatedly interpreted this policy of
neutrality to prohibit government from acting except for secular purposes and in ways
that have primarily secular effects.[245]

Prayer in public schools is an area where the Court has applied strict neutrality and
refused to allow any form of prayer, spoken or silent, in the public schools as
in Engel and Schempp.[246] The McCollum case prohibiting optional religious instruction
within public school premises during regular class hours also demonstrates strict
neutrality. In these education cases, the Court refused to uphold the government action
as they were based not on a secular but on a religious purpose. Strict neutrality was also
used in Reynolds and Smith which both held that if government acts in pursuit of a
generally applicable law with a secular purpose that merely incidentally burdens
religious exercise, the First Amendment has not been offended. However, if the strict
neutrality standard is applied in interpreting the Establishment Clause, it could de
facto void religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Schempp, strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or even active, hostility to
the religious" which is prohibited by the Constitution.[247] Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision into
law by guaranteeing the free exercise of religion but not, say, of philosophy or science.
The strict neutrality approach all but erases this distinction. Thus it is not surprising that
the Supreme Court has rejected strict neutrality, permitting and sometimes mandating
religious classifications.[248]
The separationist approach, whether strict or tame, is caught in a dilemma because
while the Jeffersonian wall of separation "captures the spirit of the American ideal of
church-state separation", in real life church and state are not and cannot be totally
separate.[249] This is all the more true in contemporary times when both the government
and religion are growing and expanding their spheres of involvement and activity,
resulting in the intersection of government and religion at many points.[250]

Consequently, the Court has also decided cases employing benevolent

neutrality. Benevolent neutrality which gives room for accommodation is buttressed by
a different view of the "wall of separation" associated with Williams, founder of the
Rhode Island colony. In Mark DeWolfe Howe's classic, The Garden and the Wilderness,
he asserts that to the extent the Founders had a wall of separation in mind, it was unlike
the Jeffersonian wall that is meant to protect the state from the church; instead, the
wall is meant to protect the church from the state,[251] i.e., the "garden" of the church
must be walled in for its own protection from the "wilderness" of the world[252] with its
potential for corrupting those values so necessary to religious commitment.[253] Howe
called this the "theological" or "evangelical" rationale for church-state separation while
the wall espoused by "enlightened" statesmen such as Jefferson and Madison, was a
"political" rationale seeking to protect politics from intrusions by the church.[254] But it
has been asserted that this contrast between the Williams and Jeffersonian positions is
more accurately described as a difference in kinds or styles of religious thinking, not as a
conflict between "religious" and "secular (political)"; the religious style was biblical and
evangelical in character while the secular style was grounded in natural religion, more
generic and philosophical in its religious orientation.[255]

The Williams wall is, however, breached for the church is in the state and so the
remaining purpose of the wall is to safeguard religious liberty. Williams' view would
therefore allow for interaction between church and state, but is strict with regard to
state action which would threaten the integrity of religious commitment.[256] His
conception of separation is not total such that it provides basis for certain interactions
between church and state dictated by apparent necessity or practicality.[257] This
"theological" view of separation is found in Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between the
garden of the church and the wilderness of the world, God hath ever broke down the
wall itself, removed the candlestick, and made his garden a wilderness, as this day. And
that therefore if He will eer please to restore His garden and paradise again, it must of
necessity be walled in peculiarly unto Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has been said by
the Court is this: that we will not tolerate either governmentally established religion or
governmental interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist without sponsorship and
without interference.[259] (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every and all respects there shall
be a separation of Church and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion
would be aliens to each other - hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the Constitution. Prayers in our
legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom
oaths- these and all other references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with which the Court opens
each session: `God save the United States and this Honorable Court.

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We

guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule
of public events, it follows the best of our traditions. For it then respects the religious
nature of our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to
religion and to throw its weight against efforts to widen their effective scope of religious
influence.[261] (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that religion serves
a function essential to the survival of society itself, thus there is no human society
without one or more ways of performing the essential function of religion. Although for
some individuals there may be no felt need for religion and thus it is optional or even
dispensable, for society it is not, which is why there is no human society without one or
more ways of performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate religion(s) in their
ideology.[262] As one sociologist wrote:
It is widely held by students of society that there are certain functional prerequisites
without which society would not continue to exist. At first glance, this seems to be
obvious - scarcely more than to say that an automobile could not exist, as a going
system, without a carburetor. . . Most writers list religion among the functional
prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society
without something which modern social scientists would classify as a religion...Religion
is as much a human universal as language."[264]
Benevolent neutrality thus recognizes that religion plays an important role in the public
life of the United States as shown by many traditional government practices which,
to strict neutrality, pose Establishment Clause questions. Among these are the
inscription of "In God We Trust" on American currency, the recognition of America as
"one nation under God" in the official pledge of allegiance to the flag, the Supreme
Court's time-honored practice of opening oral argument with the invocation "God save
the United States and this honorable Court," and the practice of Congress and every
state legislature of paying a chaplain, usually of a particular Protestant denomination to
lead representatives in prayer.[265] These practices clearly show the preference for one
theological viewpoint -the existence of and potential for intervention by a god - over the
contrary theological viewpoint of atheism. Church and government agencies also
cooperate in the building of low-cost housing and in other forms of poor relief, in the
treatment of alcoholism and drug addiction, in foreign aid and other government
activities with strong moral dimension.[266] The persistence of these de
facto establishments are in large part explained by the fact that throughout history, the
evangelical theory of separation, i.e., Williams' wall, has demanded respect for these de
facto establishments.[267] But the separationists have a different explanation. To
characterize these as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions
explain some of these practices as "`de minimis' instances of government endorsement
or as historic governmental practices that have largely lost their religious significance or
at least have proven not to lead the government into further involvement with religion.
[268]

With religion looked upon with benevolence and not hostility, benevolent

neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into account not
to promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or effect therefore is
to remove a burden on, or facilitate the exercise of, a person's or institution's religion.
As Justice Brennan explained, the "government [may] take religion into account...to
exempt, when possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may
flourish."[269] (emphasis supplied) Accommodation is forbearance and not alliance. it
does not reflect agreement with the minority, but respect for the conflict between the
temporal and spiritual authority in which the minority finds itself.[270]

Accommodation is distinguished from strict neutrality in that the latter holds that
government should base public policy solely on secular considerations, without regard
to the religious consequences of its actions. The debate between accommodation and
strict neutrality is at base a question of means: "Is the freedom of religion best achieved
when the government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those practices? Or is it
best advanced through a policy of `religious blindness' - keeping government aloof from
religious practices and issues?" An accommodationist holds that it is good public policy,
and sometimes constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other hand, the strict
neutrality adherent believes that it is good public policy, and also constitutionally
required, for the government to avoid religion-specific policy even at the cost of
inhibiting religious exercise.[271]

There are strong and compelling reasons, however, to take

the accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the First
Amendment. The religion clauses contain two parallel provisions, both specifically
directed at "religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most
plausibly as warding off two equal and opposite threats to religious freedom -
government action that promotes the (political) majority's favored brand of religion and
government action that impedes religious practices not favored by the majority.
The substantive end in view is the preservation of the autonomy of religious life and not
just the formal process value of ensuring that government does not act on the basis of
religious bias. On the other hand, strict neutrality interprets the religion clauses as
allowing government to do whatever it desires to or for religion, as long as it does the
same to or for comparable secular entities. Thus, for example, if government prohibits
all alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses violate the religion
clauses, so to speak, since the religion clauses single out religion by name for special
protection. Second, the accommodationist position best achieves the purposes of the
First Amendment. The principle underlying the First Amendment is that freedom to
carry out one's duties to a Supreme Being is an inalienable right, not one dependent
on the grace of legislature. Although inalienable, it is necessarily limited by the rights of
others, including the public right of peace and good order. Nevertheless it is a
substantive right and not merely a privilege against discriminatory legislation. The
accomplishment of the purpose of the First Amendment requires more than the
"religion blindness" of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and intense. Laws that are
suitable for secular entities are sometimes inappropriate for religious entities, thus the
government must make special provisions to preserve a degree of independence for
religious entities for them to carry out their religious missions according to their
religious beliefs. Otherwise, religion will become just like other secular entities subject
to pervasive regulation by majoritarian institutions. Third, the accommodationist
interpretation is particularly necessary to protect adherents of minority religions from
the inevitable effects of majoritarianism, which include ignorance and indifference and
overt hostility to the minority. In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come into conflict with the
religious scruples of those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this effect is unavoidable
as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions. Because of plural
traditions, legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not always be the
case when the religious practice is either unknown at the time of enactment or is for
some reason unpopular. In these cases, a constitutional interpretation
that allows accommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to religious
faiths that are less able to protect themselves in the political arena. Fourth, the
accommodationist position is practical as it is a commonsensical way to deal with the
various needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely with religious
freedom. Aside from laws against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in construction areas can
effectively exclude Amish and Sikhs from the workplace, or employment anti-
discrimination laws can conflict with the Roman Catholic male priesthood, among
others. Exemptions from such laws are easy to craft and administer and contribute
much to promoting religious freedom at little cost to public policy. Without exemptions,
legislature would be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with legislation it considers
beneficial to society as a whole. Exemption seems manifestly more reasonable than
either of the alternative: no exemption or no law.[272]

Benevolent neutrality gives room for different kinds of accommodation: those which

are constitutionally compelled, i.e., required by the Free Exercise Clause; and those
which are discretionary or legislative, i.e., and those not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause.[273] Some Justices of the
Supreme Court have also used the term accommodation to describe government
actions that acknowledge or express prevailing religious sentiments of the community
such as display of a religious symbol on public property or the delivery of a prayer at
public ceremonial events.[274] Stated otherwise, using benevolent neutrality as a
standard could result to three situations of accommodation: those
where accommodation is required, those where it is permissible, and those where it
is prohibited. In the first situation, accommodation is required  to preserve free exercise
protections and not unconstitutionally infringe on religious liberty or create penalties for
religious freedom. Contrary to the Smith declaration that free exercise exemptions are
"intentional government advancement", these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious adherent to be left
alone. The state must create exceptions to laws of general applicability when these laws
threaten religious convictions or practices in the absence of a compelling state interest.
[275]
 By allowing such exemptions, the Free Exercise Clause does not give believers the
right or privilege to choose for themselves to override socially-prescribed decision; it
allows them to obey spiritual rather than temporal authority[276] for those who seriously
invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is
a matter less of rights than duties; more precisely, it is a matter of rights derived from
duties. To deny a person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course, those denied will
usually not find the reason for the denial compelling. "Because they may turn out to be
right about the duty in question, and because, even if they are wrong, religion bears
witness to that which transcends the political order, such denials should be rare and
painfully reluctant."[277]

The Yoder case is an example where the Court held that the state must accommodate
the religious beliefs of the Amish who objected to enrolling their children in high school
as required by law. The Sherbert case is another example where the Court held that the
state unemployment compensation plan must accommodate the religious convictions of
Sherbert.[278] In these cases of "burdensome effect", the modern approach of the Court
has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens the religious
exercise pursues a particularly important or compelling government goal through the
least restrictive means. If the state's objective could be served as well or almost as well
by granting an exemption to those whose religious beliefs are burdened by the
regulation, such an exemption must be given.[279] This approach of the Court on
"burdensome effect" was only applied since the 1960s. Prior to this time, the Court took
the separationist view that as long as the state was acting in pursuit of non-religious
ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause
did not pose a hindrance such as in Reynolds.[280] In the second situation where
accommodation is permissible, the state may, but is not required to, accommodate
religious interests. The Walz case illustrates this situation where the Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not
rule that the state was required to provide tax exemptions. The Court declared that
"(t)he limits of permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise Clause."[281] The
Court held that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property taxes. Other examples
are the Zorach case allowing released time in public schools and Marsh allowing
payment of legislative chaplains from public funds. Finally, in the situation where
accommodation is prohibited, establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free
Exercise Clause does not mean that all claims for free exercise exemptions are valid.
[282]
 An example where accommodation was prohibited is McCollum where the Court
ruled against optional religious instruction in the public school premises.[283] In effect,
the last situation would arrive at a strict neutrality conclusion.

In the first situation where accommodation is required, the approach follows this basic
framework:
If the plaintiff can show that a law or government practice inhibits the free exercise of
his religious beliefs, the burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some important (or `compelling') secular
objective and that it is the least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimant's
beliefs must be `sincere', but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant's religious denomination. `Only
beliefs rooted in religion are protected by the Free Exercise Clause'; secular beliefs,
however sincere and conscientious, do not suffice.[284]
In other words, a three-step process (also referred to as the "two-step balancing
process" supra when the second and third steps are combined) as in Sherbert is
followed in weighing the state's interest and religious freedom when these collide.
Three questions are answered in this process. First, "(h)as the statute or government
action created a burden on the free exercise of religion?" The courts often look into
the sincerity of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimant's belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation. As evidence of
sincerity, the U.S. Supreme Court has considered historical evidence as
in Wisconsin where the Amish people had held a long-standing objection to enrolling
their children in ninth and tenth grades in public high schools. In another case, Dobkin v.
District of Columbia,[285] the Court denied the claim of a party who refused to appear in
court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might erroneously
deny some claims because of a misjudgment of sincerity, this is not as argument to
reject all claims by not allowing accommodation as a rule. There might be injury to the
particular claimant or to his religious community, but for the most part, the injustice is
done only in the particular case.[286] Aside from the sincerity, the court may look into the
centrality of those beliefs, assessing them not on an objective basis but in terms of the
opinion and belief of the person seeking exemption. In Wisconsin, for example, the
Court noted that the Amish people's convictions against becoming involved in public
high schools were central to their way of life and faith. Similarly, in Sherbert, the Court
concluded that the prohibition against Saturday work was a "cardinal
principle."[287] Professor Lupu puts to task the person claiming exemption, viz:
On the claimant's side, the meaning and significance of the relevant religious practice
must be demonstrated. Religious command should outweigh custom, individual
conscience should count for more than personal convenience, and theological principle
should be of greater significance than institutional ease. Sincerity matters, (footnote
omitted) and longevity of practice - both by the individual and within the individual's
religious tradition - reinforces sincerity. Most importantly, the law of free exercise must
be inclusive and expansive, recognizing non-Christian religions - eastern, Western,
aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and
accepting of the intensity and scope of fundamentalist creed.[288]
Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this
infringement of religious liberty?" In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must
do more than assert the objectives at risk if exemption is given; it must precisely show
how and to what extent those objectives will be undermined if exemptions are granted.
[289]
 The person claiming religious freedom, on the other hand, will endeavor to show
that the interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves balancing,
i.e., weighing the interest of the state against religious liberty to determine which is
more compelling under the particular set of facts. The greater the state's interests, the
more central the religious belief would have to be to overcome it. In assessing the state
interest, the court will have to determine the importance of the secular interest and the
extent to which that interest will be impaired by an exemption for the religious practice.
Should the court find the interest truly compelling, there will be no requirement that
the state diminish the effectiveness of its regulation by granting the exemption.[290]

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state?"[291] The analysis requires the state
to show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties. In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it was a
forbidden burden on religious liberty, noting that less drastic means of insuring peace
and tranquility existed. As a whole, in carrying out the compelling state interest test,
the Court should give careful attention to context, both religious and regulatory, to
achieve refined judgment.[292]

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of
secular government and religious freedom create tensions that make constitutional law
on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic
society.[293]
VII. Religion Clauses in the Philippines
A. History

Before our country fell under American rule, the blanket of Catholicism covered the
archipelago. There was a union of church and state and Catholicism was the state
religion under the Spanish Constitution of 1876. Civil authorities exercised religious
functions and the friars exercised civil powers.[294] Catholics alone enjoyed the right of
engaging in public ceremonies of worship.[295] Although the Spanish Constitution itself
was not extended to the Philippines, Catholicism was also the established church in our
country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal
Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six
of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes
against the state religion.[296] The coming of the Americans to our country, however,
changed this state-church scheme for with the advent of this regime, the unique
American experiment of "separation of church and state" was transported to Philippine
soil.

Even as early as the conclusion of the Treaty of Paris between the United States and
Spain on December 10, 1898, the American guarantee of religious freedom had been
extended to the Philippines. The Treaty provided that "the inhabitants of the territories
over which Spain relinquishes or cedes her sovereignty shall be secured in the free
exercise of religion."[297] Even the Filipinos themselves guaranteed religious freedom a
month later or on January 22, 1899 upon the adoption of the Malolos Constitution of
the Philippine Republic under General Emilio Aguinaldo. It provided that "the State
recognizes the liberty and equality of all religion (de todos los cultos) in the same
manner as the separation of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns of government.[298]

With the Philippines under the American regime, President McKinley

issued Instructions to the Second Philippine Commission, the body created to take over
the civil government in the Philippines in 1900. The Instructions guaranteed religious
freedom, viz:
That no law shall be made respecting the establishment of religion or prohibiting the
free exercise thereof, and that the free exercise and enjoyment of religious profession
and worship without discrimination or preference shall forever be allowed ... that no
form of religion and no minister of religion shall be forced upon the community or upon
any citizen of the Islands, that, on the other hand, no minister of religion shall be
interfered with or molested in following his calling.[299]
This provision was based on the First Amendment of the United States Constitution.
Likewise, the Instructions declared that "(t)he separation between State and Church
shall be real, entire and absolute."[300]

Thereafter, every organic act of the Philippines contained a provision on freedom of

religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of
1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that free exercise and enjoyment of religious worship, without
discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 "caused the
complete separation of church and state, and the abolition of all special privileges and
all restrictions theretofor conferred or imposed upon any particular religious sect."[302]

The Jones Law of 1916 carried the same provision, but expanded it with a restriction
against using public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and
worship without discrimination or preference, shall forever be allowed; and no religious
test shall be required for the exercise of civil or political rights. No public money or
property shall ever be appropriated, applied, donated, or used, directly or indirectly, for
the use, benefit, or support of any sect, church, denomination, sectarian institution, or
system of religion, or for the use, benefit or support of any priest, preacher, minister, or
other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie Law of
1934 which guaranteed independence to the Philippines and authorized the drafting of
a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting
their constitution preparatory to the grant of independence. The law prescribed that
"(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or
religious organization shall be molested in person or property on account of religious
belief or mode of worship."[303]

The Constitutional Convention then began working on the 1935 Constitution. In their

proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights
acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first
introduced religious toleration in our country. President McKinley's Instructions to the
Second Philippine Commission reasserted this right which later was incorporated into
the Philippine Bill of 1902 and in the Jones Law."[304] In accordance with the Tydings-
McDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section
7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof, and 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.
This provision, borrowed from the Jones Law, was readily approved by the Convention.
[305]
 In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said
that modifications in phraseology of the Bill of Rights in the Jones Law were avoided
whenever possible because "the principles must remain couched in a language
expressive of their historical background, nature, extent and limitations as construed
and interpreted by the great statesmen and jurists that vitalized them."[306]

The 1973 Constitution which superseded the 1935 Constitution contained an almost

identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz:
Sec. 8. 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.
This time, however, the General Provisions in Article XV added in Section 15 that "(t)he
separation of church and state shall be inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses
were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5.
[307]
 Likewise, the provision on separation of church and state was included verbatim in
the 1987 Constitution, but this time as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to
adopt the historical background, nature, extent and limitations of the First Amendment
of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not
surprising that nearly all the major Philippine cases involving the religion clauses turn to
U.S. jurisprudence in explaining the nature, extent and limitations of these clauses.
However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence
on religion clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for
the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence

In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin

with the definition of "religion". "Religion" is derived from the Middle English religioun,
from Old French religion, from Latin religio, vaguely referring to a "bond between man
and the gods."[308] This pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible.[309] While the U.S. Supreme Court has
had to take up the challenge of defining the parameters and contours of "religion" to
determine whether a non-theistic belief or act is covered by the religion clauses, this
Court has not been confronted with the same issue. In Philippine jurisprudence, religion,
for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937,
the Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined
"religion" as a "profession of faith to an active power that binds and elevates man to his
Creator." Twenty years later, the Court cited the Aglipay definition in American Bible
Society v. City of Manila,[311] a case involving the Free Exercise clause. The latter also
cited the American case of Davis in defining religion, viz: "(i)t has reference to one's
views of his relations to His Creator and to the obligations they impose of reverence to
His being and character and obedience to His Will." The Beason definition, however, has
been expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and prohibits any
degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion. The Free Exercise Clause principally guarantees voluntarism, although the
Establishment Clause also assures voluntarism by placing the burden of the
advancement of religious groups on their intrinsic merits and not on the support of the
state.[312]

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early
case of Gerona v. Secretary of Education[313] is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however strange,
bizarre and unreasonable the same may appear to others, even heretical when weighed
in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in
the American Bible Society case. In that case, plaintiff American Bible Society was a
foreign, non-stock, non-profit, religious missionary corporation which sold bibles and
gospel portions of the bible in the course of its ministry. The defendant City of Manila
required plaintiff to secure a mayor's permit and a municipal license as ordinarily
required of those engaged in the business of general merchandise under the city's
ordinances. Plaintiff argued that this amounted to "religious censorship and restrained
the free exercise and enjoyment of religious profession, to wit: the distribution and sale
of bibles and other religious literature to the people of the Philippines."

After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint
of such right can only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive evil which the
State has the right to prevent. (Tanada and Fernando on the Constitution of the
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and present danger"
rule in the religious freedom area, and in Philippine jurisprudence, for that matter.
[315]
 The case did not clearly show, however, whether the Court proceeded to apply the
test to the facts and issues of the case, i.e., it did not identify the secular value the
government regulation sought to protect, whether the religious speech posed a clear
and present danger to this or other secular value protected by government, or whether
there was danger but it could not be characterized as clear and present. It is one thing
to apply the test and find that there is no clear and present danger, and quite another
not to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances were not applicable
to plaintiff as it was not engaged in the business or occupation of selling said
"merchandise" for profit. To add, the Court, citing Murdock v. Pennsylvania,[316] ruled
that applying the ordinance requiring it to secure a license and pay a license fee or tax
would impair its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a privilege is the
power to control or suppress its enjoyment." Thus, in American Bible Society, the "clear
and present danger" rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also involving the sale of
religious books, the Court distinguished the American Bible Society case from the facts
and issues in Tolentino and did not apply the American Bible Society ruling.
In Tolentino, the Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held,
however, that the fixed amount of registration fee was not imposed for the exercise of a
privilege like a license tax which American Bible Society ruled was violative of religious
freedom. Rather, the registration fee was merely an administrative fee to defray part of
the cost of registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,[318] the Court also declared prefatorily that
"the Free Exercise of Religion Clause does not prohibit imposing a generally applicable
sales and use tax on the sale of religious materials by a religious organization." In the
Court's resolution of the motion for reconsideration of the Tolentino decision, the Court
noted that the burden on religious freedom caused by the tax was just similar to any
other economic imposition that might make the right to disseminate religious doctrines
costly.

Two years after American Bible Society came the 1959 case of Gerona v. Secretary of
Education,[319] this time involving conduct expressive of religious belief colliding with a
rule prescribed in accordance with law. In this case, petitioners were members of the
Jehovah's Witnesses. They challenged a Department Order issued by the Secretary of
Education implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioner's children refused
to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge,
hence they were expelled from school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on account of their religious belief that
the Philippine flag is an image and saluting the same is contrary to their religious belief.
The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions of society
and with the law, then the former must yield to the latter. The Government steps in
and either restrains said exercise or even prosecutes the one exercising it. (emphasis
supplied)[320]
The Court then proceeded to determine if the acts involved constituted a religious
ceremony in conflict with the beliefs of the petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a religious ceremony
must rest with the courts. It cannot be left to a religious group or sect, much less to a
follower of said group or sect; otherwise, there would be confusion and
misunderstanding for there might be as many interpretations and meaning to be given
to a certain ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and good faith, may
want to give to such ritual or ceremony.[321]
It was held that the flag was not an image, the flag salute was not a religious ceremony,
and there was nothing objectionable about the singing of the national anthem as it
speaks only of love of country, patriotism, liberty and the glory of suffering and dying for
it. The Court upheld the questioned Order and the expulsion of petitioner's children,
stressing that:
Men may differ and do differ on religious beliefs and creeds, government policies, the
wisdom and legality of laws, even the correctness of judicial decisions and decrees; but
in the field of love of country, reverence for the flag, national unity and patriotism, they
can hardly afford to differ, for these are matters in which they are mutually and vitally
interested, for to them, they mean national existence and survival as a nation or
national extinction.[322]
In support of its ruling, the Court cited Justice Frankfurter's dissent in the Barnette
case, viz:
The constitutional protection of religious freedom x x x gave religious equality, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and cannot
mean exemption from or non-compliance with reasonable and non-discriminatory laws,
rules and regulations promulgated by competent authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is
incumbent upon the Court to determine whether a certain ritual is religious or not;
(2) religious freedom will not be upheld if it clashes with the established institutions of
society and with the law such that when a law of general applicability (in this case the
Department Order) incidentally burdens the exercise of one's religion, one's right to
religious freedom cannot justify exemption from compliance with the law. The Gerona
ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.[325]

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers
Union.[326] In this unanimously decided en banc case, Victoriano was a member of the
Iglesia ni Cristo which prohibits the affiliation of its members with any labor
organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the
Elizalde Rope Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the application and coverage of a
closed shop agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned from the
union after Republic Act No. 3350 took effect. The union notified the company of
Victoriano's resignation, which in turn notified Victoriano that unless he could make a
satisfactory arrangement with the union, the company would be constrained to dismiss
him from the service. Victoriano sought to enjoin the company and the union from
dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional
for impairing the obligation of contracts and for granting an exemption offensive of the
Establishment Clause. With respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right and liberty
(Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to prevent an immediate
and grave danger to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent necessary.
[327]
 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the constitutional
provision on establishment and free exercise of religion, declared, viz:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by law
of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses of
the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good. (footnote omitted). Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965,
83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the state's secular goals,
the statute is valid despite its indirect burden on religious observance, unless the state
can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366
U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449)[328] (emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that "government is not precluded from
pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." It also cited Board of Education v. Allen,[330] which held
that in order to withstand the strictures of constitutional prohibition, a statute must
have a secular legislative purpose and a primary effect that neither advances nor inhibits
religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed
out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that certain persons be
refused work, or be dismissed from work, or be dispossessed of their right to work and
of being impeded to pursue a modest means of livelihood, by reason of union security
agreements. . . . The primary effects of the exemption from closed shop agreements in
favor of members of religious sects that prohibit their members from affiliating with a
labor organization, is the protection of said employees against the aggregate force of
the collective bargaining agreement, and relieving certain citizens of a burden on their
religious beliefs, and . . . eliminating to a certain extent economic insecurity due to
unemployment.[331]
The Court stressed that "(a)lthough the exemption may benefit those who are members
of religious sects that prohibit their members from joining labor unions, the benefit
upon the religious sects is merely incidental and indirect."[332] In enacting Republic Act
No. 3350, Congress merely relieved the exercise of religion by certain persons of a
burden imposed by union security agreements which Congress itself also imposed
through the Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some "compelling state interest"
intervenes. The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption."[333]

A close look at Victoriano would show that the Court mentioned several tests in
determining when religious freedom may be validly limited. First, the Court mentioned
the test of "immediate and grave danger to the security and welfare of the community"
and "infringement of religious freedom only to the smallest extent necessary" to justify
limitation of religious freedom. Second, religious exercise may be indirectly burdened by
a general law which has for its purpose and effect the advancement of the state's
secular goals, provided that there is no other means by which the state can accomplish
this purpose without imposing such burden. Third, the Court referred to the
"compelling state interest" test which grants exemptions when general laws conflict
with religious exercise, unless a compelling state interest intervenes.

It is worth noting, however, that the first two tests were mentioned only for the
purpose of highlighting the importance of the protection of religious freedom as the
secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular
purpose insofar as it relieved the burden on religious freedom caused by another law,
i.e, the Industrial Peace Act providing for union shop agreements. The first two tests
were only mentioned in Victoriano but were not applied by the Court to the facts and
issues of the case. The third, the "compelling state interest" test was employed by the
Court to determine whether the exemption provided by Republic Act No. 3350 was not
unconstitutional. It upheld the exemption, stating that there was no "compelling state
interest" to strike it down. However, after careful consideration of the Sherbert
case from which Victoriano borrowed this test, the inevitable conclusion is that the
"compelling state interest" test was not appropriate and could not find application in
the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in
seeking exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment benefits. It was
the appellees, members of the South Carolina Employment Commission, a government
agency, who propounded the state interest to justify overriding Sherbert's claim of
religious freedom. The U.S. Supreme Court, considering Sherbert's and the
Commission's arguments, found that the state interest was not sufficiently compelling
to prevail over Sherbert's free exercise claim. This situation did not obtain in
the Victoriano case where it was the government itself, through Congress, which
provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of
religion. Thus, the government could not argue against the exemption on the basis of a
compelling state interest as it would be arguing against itself; while Victoriano would
not seek exemption from the questioned law to allow the free exercose of religion as
the law in fact provides such an exemption. In sum, although Victoriano involved a
religious belief and conduct, it did not involve a free exercise issue where the Free
Exercise Clause is invoked to exempt him from the burden imposed by a law on his
religious freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et

al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas,
[334]
 Anucension v. National Labor Union, et al.,[335] and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.[336]

Then came German v. Barangan in 1985 at the height of the anti-administration rallies.

Petitioners were walking to St. Jude Church within the Malacanang security area to pray
for "an end to violence" when they were barred by the police. Invoking their
constitutional freedom of religious worship and locomotion, they came to the Court on
a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The
Court was divided on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that they were using their
religious liberty to express their opposition to the government. Citing Cantwell, the
Court distinguished between freedom to believe and freedom to act on matters of
religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the second cannot be.
[337]

The Court reiterated the Gerona ruling, viz:

In the case at bar, petitioners are not denied or restrained of their freedom of belief or
choice of their religion, but only in the manner by which they had attempted to
translate the same to action. This curtailment is in accord with the pronouncement of
this Court in Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and give
way to the latter. The government steps in and either restrains said exercise or even
prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was "necessary to
maintain the smooth functioning of the executive branch of the government, which
petitioners' mass action would certainly disrupt"[338] and denied the petition. Thus,
without considering the tests mentioned in Victoriano, German went back to the
Gerona rule that religious freedom will not be upheld if it clashes with the established
institutions of society and the law.

Then Associate Justice Teehankee registered a dissent which in subsequent

jurisprudence would be cited as a test in religious freedom cases. His dissent stated in
relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in the
landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in
resolving the issues.

1. The right to freely exercise one's religion is guaranteed in Section 8 of our Bill of
Rights. (footnote omitted) Freedom of worship, alongside with freedom of
expression and 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 felicitously
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.' (J.B.L. Reyes, 125 SCRA at pp. 569-570)

2. In the free exercise of such preferred rights, there is to be no prior restraint

although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior restraint
or limitation on the exercise of these basic rights is the existence of a grave and
present 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, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).
[339]
 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent
was taken involved the rights to free speech and assembly, and not the exercise of
religious freedom. At issue in that case was a permit sought by retired Justice J.B.L.
Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful
march and rally from the Luneta to the gates of the U.S. Embassy.
Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble and petition the
government for redress of grievances.[340]

In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again
came before the Court in Ebralinag v. The Division Superintendent of Schools.[341] A
unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona,
this case involved several Jehovah's Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the "grave and imminent danger"
test laid down in Justice Teehankee's dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of religious
freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion
in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present
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, that the State has a right
(and duty) to prevent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's Witnesses from saluting the
flag, singing the national anthem and reciting the patriotic pledge, this religious group
which admittedly comprises a `small portion of the school population' will shake up our
part of the globe and suddenly produce a nation `untaught and uninculcated in and
unimbued with reverence for the flag, patriotism, love of country and admiration for
national heroes' (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the
petitioners seek only is exemption from the flag ceremony, not exclusion from the
public schools where they may study the Constitution, the democratic way of life and
form of government, and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation or profession and be taught the virtues of
`patriotism, respect for human rights, appreciation of national heroes, the rights and
duties of citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners from
Philippine schools will bring about the very situation that this Court has feared in
Gerona. Forcing a small religious group, through the iron hand of the law, to participate
in a ceremony that violates their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x-
assuming that such unity and loyalty can be attained through coercion- is not a goal that
is constitutionally obtainable at the expense of religious liberty. A desirable end cannot
be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).[344]
Towards the end of the decision, the Court also cited the Victoriano case and its use of
the "compelling state interest" test in according exemption to the Jehovah's
Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching of
their church not to join any group:
`x x x It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scruples of conscience, exemptions ought to
be granted unless some `compelling state interest' intervenes.' (Sherbert vs. Verner, 374
U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)'
We hold that a similar exemption may be accorded to the Jehovah's Witnesses with
regard to the observance of the flag ceremony out of respect for their religious beliefs,
however `bizarre' those beliefs may seem to others.[345]
The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones of the right
to free speech and assembly, was transported to Ebralinag which did not involve prior
restraint of religious worship, speech or assembly. Although, it might be observed that
the Court faintly implied that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to participate in the
flag ceremony "is alien to the conscience of the present generation of Filipinos who cut
their teeth on the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship;" the Court then stated in a footnote that
the "flag salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances."[346]

The "compelling state interest" test was not fully applied by the Court in Ebralinag. In
the Solicitor General's consolidated comment, one of the grounds cited to defend the
expulsion orders issued by the public respondents was that "(t)he State's compelling
interests being pursued by the DEC's lawful regulations in question do not warrant
exemption of the school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions."[347] The Court,
however, referred to the test only towards the end of the decision and did not even
mention what the Solicitor General argued as the compelling state interest, much less
did the Court explain why the interest was not sufficiently compelling to override
petitioners' religious freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court
of Appeals, et al.[348] Although there was a dissent with respect to the applicability of the
"clear and present danger" test in this case, the majority opinion in unequivocal terms
applied the "clear and present danger" test to religious speech. This case involved the
television program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon
petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified these as "X" or
not for public viewing on the ground that they "offend and constitute an attack against
other religions which is expressly prohibited by law." Invoking religious freedom,
petitioner alleged that the Board acted without jurisdiction or with grave abuse of
discretion in requiring it to submit the VTR tapes of its television program and x-rating
them. While upholding the Board's power to review the Iglesia television show,
the Court was emphatic about the preferred status of religious freedom. Quoting
Justice Cruz' commentary on the constitution, the Court held that freedom to believe is
absolute but freedom to act on one's belief, where it affects the public, is subject to the
authority of the state. The commentary quoted Justice Frankfurter's dissent
in Barnette which was quoted in Gerona, viz: "(t)he 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."[349] Nevertheless, the
Court was quick to add the criteria by which the state can regulate the exercise of
religious freedom, that is, when the exercise will bring about the "clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or public
welfare."[350]

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile
to all prior restraints on speech, including religious speech and the x-rating was a
suppression of petitioner's freedom of speech as much as it was an interference with its
right to free exercise of religion. Citing Cantwell, the Court recognized that the different
religions may criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in
the American Bible Society case and the test of "immediate and grave danger" with
"infringement only to the smallest extent necessary to avoid danger" in Victoriano and
pointed out that the reviewing board failed to apply the "clear and present danger" test.
Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify the
conclusion that the subject video tapes constitute impermissible attacks against another
religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but only by the
showing of a substantive and imminent evil which has taken the life of a reality already
on ground.
Replying to the challenge on the applicability of the "clear and present danger" test to
the case, the Court acknowledged the permutations that the test has undergone, but
stressed that the test is still applied to four types of speech: "speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial"[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply the clear
and present danger test to the case at bar which concerns speech that attacks other
religions and could readily provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as holding that religious
freedom cannot be invoked to seek exemption from compliance with a law that burdens
one's religious exercise. It also reiterated the "clear and present danger" test
in American Bible Society and the "grave and imminent danger" in Victoriano, but this
time clearly justifying its applicability and showing how the test was applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law
offensive to religious freedom, but carving out an exception or upholding an exception
to accommodate religious exercise where it is justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought to be
protected by the Establishment Clause, namely, voluntarism and insulation of the
political process from interfaith dissension. The first, voluntarism, has both a personal
and a social dimension. As a personal value, it refers to the inviolability of the human
conscience which, as discussed above, is also protected by the free exercise clause.
From the religious perspective, religion requires voluntarism because compulsory faith
lacks religious efficacy. Compelled religion is a contradiction in terms.[354] As a social
value, it means that the "growth of a religious sect as a social force must come from the
voluntary support of its members because of the belief that both spiritual and secular
society will benefit if religions are allowed to compete on their own intrinsic merit
without benefit of official patronage. Such voluntarism cannot be achieved unless the
political process is insulated from religion and unless religion is insulated from
politics."[355] Non-establishment thus calls for government neutrality in religious
matters to uphold voluntarism and avoid breeding interfaith dissension.[356]

The neutrality principle was applied in the first significant non-establishment case

under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine
Independent Church challenged the issuance and sale of postage stamps
commemorating the Thirty-Third International Eucharistic Congress of the Catholic
Church on the ground that the constitutional prohibition against the use of public
money for religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No. 4052[358] which
appropriated a sum for the cost of plates and printing of postage stamps with new
designs and authorized the Director of Posts to dispose of the sum in a manner and
frequency "advantageous to the Government." The printing and issuance of the postage
stamps in question appears to have been approved by authority of the President. Justice
Laurel, speaking for the Court, took pains explaining religious freedom and the role of
religion in society, and in conclusion, found no constitutional infirmity in the issuance
and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of separation of
church and state. Without the necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that our history, not to speak of the
history of mankind, has taught us that the union of church and state is prejudicial to
both, for occasions might arise when the state will use the church, and the church the
state, as a weapon in the furtherance of their respective ends and aims . . . It is almost
trite to say now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their oath to
support and defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and
recognized implications. It should be stated that what is guaranteed by our Constitution
is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of

profound reverence for religion and is not a denial of its influence in human affairs.
Religion as a profession of faith to an active power that binds and elevates man to his
Creator is recognized. And, in so far as it instills into the minds the purest principles of
morality, its influence is deeply felt and highly appreciated. When the Filipino people,
in the preamble of their Constitution, implored "the aid of Divine Providence, in order
to establish a government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations. The
elevating influence of religion in human society is recognized here as elsewhere. In
fact, certain general concessions are indiscriminately accorded to religious sects and
denominations. . .[359]

xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if
any, received by the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not be embarrassed
in its activities simply because of incidental results, more or less religious in character,
if the purpose had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its subordination
to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295;
20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine
that a law or government action with a legitimate secular purpose does not offend the
Establishment Clause even if it incidentally aids a particular religion.

Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court

found that the separation of church and state was not at issue as the controversy was
over who should have custody of a saint's image, it nevertheless made pronouncements
on the separation of church and state along the same line as the Aglipay ruling. The
Court held that there was nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered to the barrio resolutions of
the barangay involved in the case stating that the barrio fiesta is a socio-religious affair,
the celebration of which is an "ingrained tradition in rural communities" that "relieves
the monotony and drudgery of the lives of the masses." Corollarily, the Court found
nothing illegal about any activity intended to facilitate the worship of the patron saint
such as the acquisition and display of his image bought with funds obtained through
solicitation from the barrio residents. The Court pointed out that the image of the
patron saint was "purchased in connection with the celebration of the barrio fiesta
honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any
religion nor interfering with religious matters or the religious beliefs of the barrio
residents." Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public funds and
which has some religious tint is violative of the constitutional provisions regarding
separation of church and state, freedom of worship and banning the use of public
money or property.
Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a novel issue
involving the religion clauses. In this case, Section 2175 of the Revised Administrative
Code of 1917 disqualifying ecclesiastics from appointment or election as municipal
officer was challenged. After protracted deliberation, the Court was sharply divided on
the issue. Seven members of the Court, one short of the number necessary to declare a
law unconstitutional, approached the problem from a free exercise perspective and
considered the law a religious test offensive of the constitution. They were Justices
Fernando, Teehankee, Muñoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero.
Then Associate Justice Fernando, the ponente, stated, viz: "The challenged
Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to
any elective or appointive office, is, on its face, inconsistent with the religious freedom
guaranteed by the Constitution." Citing Torcaso v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What
was there involved was the validity of a provision in the Maryland Constitution
prescribing that `no religious test ought ever to be required as a disqualification for any
office or profit or trust in this State, other than a declaration of belief in the existence of
God ***.' Such a constitutional requirement was assailed as contrary to the First
Amendment of the United States Constitution by an appointee to the office of notary
public in Maryland, who was refused a commission as he would not declare a belief in
God. He failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have been
otherwise. As emphatically declared by Justice Black: `this Maryland religious test for
public office unconstitutionally invades the appellant's freedom of belief and religion
and therefore cannot be enforced against him.

The analogy appears to be obvious. In that case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and therefore professing a religious faith
suffices to disqualify for a public office. There is thus an incompatibility between the
Administrative Code provision relied upon by petitioner and an express constitutional
mandate.[364]
On the other hand, the prevailing five other members of the Court - Chief Justice Castro,
Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-
establishment perspective and upheld the law as a safeguard against the constant
threat of union of church and state that has marked Philippine history. Justice Makasiar
stated: "To allow an ecclesiastic to head the executive department of a municipality is to
permit the erosion of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect." Consequently, the Court upheld the validity of
Section 2175 of the Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.

Another type of cases interpreting the establishment clause deals with intramural
religious disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein
was the right of control over certain properties of the Philippine Independent Church,
the resolution of which necessitated the determination of who was the legitimate
bishop of the church. The Court cited American Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court plainly violates the law it professes
to administer, or is in conflict with the law of the land, it will not be followed by the civil
courts. . . In some instances, not only have the civil courts the right to inquire into the
jurisdiction of the religious tribunals and the regularity of their procedure, but they have
subjected their decisions to the test of fairness or to the test furnished by the
constitution and the law of the church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and respondent
de los Reyes was the duly elected head of the Church, based on their internal laws. To
finally dispose of the property issue, the Court, citing Watson v. Jones,[368] declared that
the rule in property controversies within religious congregations strictly independent of
any other superior ecclesiastical association (such as the Philippine Independent Church)
is that the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority should
prevail; if it adopts adherence to duly constituted authorities within the congregation,
then that should be followed. Applying these rules, Fonacier lost the case. While the
Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and
disciplinary differences raised, viz:
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.[369]
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between
the Free Exercise Clause and the Establishment Clause in their application. There is a
natural antagonism between a command not to establish religion and a command not
to inhibit its practice; this tension between the religion clauses often leaves the courts
with a choice between competing values in religion cases.[370]

One set of facts, for instance, can be differently viewed from the Establishment Clause
perspective and the Free Exercise Clause point of view, and decided in opposite
directions. In Pamil, the majority gave more weight to the religious liberty of the priest
in holding that the prohibition of ecclesiastics to assume elective or appointive
government positions was violative of the Free Exercise Clause. On the other hand, the
prevailing five justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.

Tension is also apparent when a case is decided to uphold the Free Exercise Clause and
consequently exemptions from a law of general applicability are afforded by the Court
to the person claiming religious freedom; the question arises whether the exemption
does not amount to support of the religion in violation of the Establishment Clause. This
was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court
ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of the Seventh-
day Adventist religion in South Carolina, for the extension of unemployment benefits to
Sabbatarians in common with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious differences, and does not
represent that involvement of religious with secular institutions which it is the object of
the Establishment Clause to forestall.[371] (emphasis supplied)
Tension also exists when a law of general application provides exemption in order to
uphold free exercise as in the Walz case where the appellant argued that the exemption
granted to religious organizations, in effect, required him to contribute to religious
bodies in violation of the Establishment Clause. But the Court held that the exemption
was not a case of establishing religion but merely upholding the Free Exercise Clause by
"sparing the exercise of religion from the burden of property taxation levied on private
profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion clauses, both
of which are cast in absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other.[372]
Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption
afforded by law to religious sects who prohibit their members from joining unions did
not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted consistently with the
spirit of the constitutional provision. It acted merely to relieve the exercise of
religion, by certain persons, of a burden that is imposed by union security agreements.
[373]
 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment Clause but
the Court nevertheless upholds it. In Schempp, Justice Brennan stated: "(t)here are
certain practices, conceivably violative of the Establishment Clause, the striking down of
which might seriously interfere with certain religious liberties also protected by the First
Amendment."

How the tension between the Establishment Clause and the Free Exercise Clause will be
resolved is a question for determination in the actual cases that come to the Court. In
cases involving both the Establishment Clause and the Free Exercise Clause, the two
clauses should be balanced against each other. The courts must review all the relevant
facts and determine whether there is a sufficiently strong free exercise right that should
prevail over the Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given an edge not only
because of abundant historical evidence in the colonial and early national period of the
United States that the free exercise principle long antedated any broad-based support
of disestablishment, but also because an Establishment Clause concern raised by merely
accommodating a citizen's free exercise of religion seems far less dangerous to the
republic than pure establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two religion clauses, the
courts convey a message of hostility to the religion that in that case cannot be freely
exercised.[374] American professor of constitutional law, Laurence Tribe, similarly
suggests that the free exercise principle "should be dominant in any conflict with the
anti-establishment principle." This dominance would be the result of commitment to
religious tolerance instead of "thwarting at all costs even the faintest appearance of
establishment."[375] In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern society is characterized
by the expanding regulatory arm of government that reaches a variety of areas of
human conduct and an expanding concept of religion. To adequately meet the demands
of this modern society, the societal values the religion clauses are intended to protect
must be considered in their interpretation and resolution of the tension. This, in fact,
has been the approach followed by the Philippine Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and
American Religion Clause History, Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution. The religion
clauses in the First Amendment were contained in every organic Act of the Philippines
under the American regime. When the delegates of the 1934 Constitutional Convention
adopted a Bill of Rights in the 1935 Constitution, they purposely retained the
phraseology of the religion clauses in the First Amendment as contained in the Jones
Law in order to adopt its historical background, nature, extent and limitations. At that
time, there were not too many religion clause cases in the United States as the U.S.
Supreme Court decided an Establishment Clause issue only in the 1947 Everson case.
The Free Exercise Clause cases were also scarce then. Over the years, however, with the
expanding reach of government regulation to a whole gamut of human actions and the
growing plurality and activities of religions, the number of religion clause cases in the
U.S. exponentially increased. With this increase came an expansion of the interpretation
of the religion clauses, at times reinforcing prevailing case law, at other times modifying
it, and still at other times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs separation while the
second employs benevolent neutrality in interpreting the religious clauses. Alongside
this change in the landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and
later, the 1987 Constitution. Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S. jurisprudence. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited
the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus,
when a religion clause case comes before the Court, a separationist approach or
a benevolent neutrality approach might be adopted and each will have U.S. authorities
to support it. Or, one might conclude that as the history of the First Amendment as
narrated by the Court in Everson supports the separationist approach, Philippine
jurisprudence should also follow this approach in light of the Philippine religion clauses'
history. As a result, in a case where the party claims religious liberty in the face of a
general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions, however, are not
and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by
other provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a whole and
apparently conflicting provisions should be reconciled and harmonized in a manner that
will give to all of them full force and effect.[377] From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality
approach in interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.[378]

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same

time that the 1935 Constitution provided for an Establishment Clause, it also provided
for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all
lands, buildings, and improvements used exclusively for religious, charitable, or
educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative Code
provided for a similar exemption. To the same effect, the Tydings-McDuffie Law
contained a limitation on the taxing power of the Philippine government during the
Commonwealth period.[379] The original draft of the Constitution placed this provision in
an ordinance to be appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional
guarantee for such an exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that "if churches,
convents [rectories or parsonages] and their accessories are always necessary for
facilitating the exercise of such [religious] freedom, it would also be natural that their
existence be also guaranteed by exempting them from taxation."[380] The amendment
was readily approved with 83 affirmative votes against 15 negative votes.[381]

The Philippine constitutional provision on tax exemption is not found in the U.S.
Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of
exemption to withstand Establishment Clause scrutiny by stating that church property
was not singled out but was exempt along with property owned by non-profit, quasi-
public corporations because the state upheld the secular policy "that considers these
groups as beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest." The Court also stated that the
exemption was meant to relieve the burden on free exercise imposed by property
taxation. At the same time, however, the Court acknowledged that the exemption was
an exercise of benevolent neutrality to accommodate a long-standing tradition of
exemption. With the inclusion of the church property tax exemption in the body of the
1935 Constitution and not merely as an ordinance appended to the Constitution,
the benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as stated in the
deliberations, was an acknowledgment of the necessity of the exempt institutions to the
exercise of religious liberty, thereby evincing benevolence towards religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

(3) No public money, or property shall ever be appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution or system of religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3 of the
Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any sect, church denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or dignitary as such...[382]
In the deliberations of this draft provision, an amendment was proposed to strike down
everything after "church denomination."[383] The proposal intended to imitate the silence
of the U.S. Constitution on the subject of support for priests and ministers. It was also
an imitation of the silence of the Malolos Constitution to restore the situation under the
Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary
army received pay from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations were
made to chaplains of the national penitentiary and the Auditor General upheld its
validity on the basis of a similar United States practice. But it was also pointed out that
the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones
Law.[384] To settle the question on the constitutionality of payment of salaries of religious
officers in certain government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and approved. The
provision garnered 74 affirmative votes against 34 negative votes.[385] As pointed out in
the deliberations, the U.S. Constitution does not provide for this exemption. However,
the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality
approach, implicitly approved the state of Texas' payment of prison chaplains' salaries
as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh
case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at taxpayers' expense.
The constitutional provision exempting religious officers in government institutions
affirms the departure of the Philippine Constitution from the U.S. Constitution in its
adoption of benevolent neutrality in Philippine jurisdiction. While the provision
prohibiting aid to religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the

Philippine Establishment Clause, the 1935 Constitution provides for optional religious
instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as now
authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established in the
town where a public school is situated, either in person or by a designated teacher of
religion, to teach religion for one-half hour three times a week, in the school building, to
those public-school pupils whose parents or guardians desire it and express their desire
therefor in writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three positions on the
issue of religious instruction in public schools. The first held that the teaching of religion
in public schools should be prohibited as this was a violation of the principle of
separation of church and state and the prohibition against the use of public funds for
religious purposes. The second favored the proposed optional religious instruction as
authorized by the Administrative Code and recognized that the actual practice of
allowing religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the schools.[386] The
third wanted religion to be included as a course in the curriculum of the public schools
but would only be taken by pupils at the option of their parents or guardians. After
several rounds of debate, the second camp prevailed, thus raising to constitutional
stature the optional teaching of religion in public schools, despite the opposition to the
provision on the ground of separation of church and state.[387] As in the provisions on
church property tax exemption and compensation of religious officers in government
institutions, the U.S. Constitution does not provide for optional religious instruction in
public schools. In fact, in the McCollum case, the Court, using strict
neutrality, prohibited this kind of religious instruction where the religion teachers
would conduct class within the school premises. The constitutional provision on optional
religious instruction shows that Philippine jurisdiction rejects the strict neutrality
approach which does not allow such accommodation of religion.

Finally, to make certain the Constitution's benevolence to religion, the Filipino people
"implored (ing) the aid of Divine Providence (,) in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation, promote
the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors
of the constitution as to the evil sought to be prevented and the objects sought to be
accomplished by the provisions thereof."[388] There was no debate on the inclusion of a
"Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the
Filipino people implored the aid of Divine Providence, "(t)hey thereby manifested their
intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations."[389] The 1935 Constitution's religion clauses, understood
alongside the other provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.[390]

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article
VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from
taxation, with the modification that the property should not only be used directly, but
also actually and exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar
provision on salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious
instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the
modification that optional religious instruction shall be conducted "as may be provided
by law" and not "as now authorized by law" as stated in the 1935 Constitution. The 1973
counterpart, however, made explicit in the constitution that the religious instruction in
public elementary and high schools shall be done "(a)t the option expressed in writing
by the parents or guardians, and without cost to them and the government." With the
adoption of these provisions in the 1973 Constitution, the benevolent neutrality
approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the
General Provisions of the 1973 Constitution this provision made its maiden appearance:
"(t)he separation of church and state shall be inviolable." The 1973 Constitution
retained the portion of the preamble "imploring the aid of Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the
Committee on Church and State of the 1971 Constitutional Convention, the question
arose as to whether the "absolute" separation of Church and State as enunciated in
the Everson case and reiterated in Schempp - i.e., neutrality not only as between one
religion and another but even as between religion and non-religion - is embodied in the
Philippine Constitution. The sub-committee's answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the "elevating influence of religion in
human society" and the Filipinos' imploring of Divine Providence in the 1935
Constitution, the sub-committee asserted that the state may not prefer or aid one
religion over another, but may aid all religions equally or the cause of religion in general.
[391]
 Among the position papers submitted to the Committee on Church on State was a
background paper for reconsideration of the religion provisions of the constitution by
Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion
and in fact recognizes the value of religion and accommodates religious values.
[392]
 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but
benevolent neutrality. While the Committee introduced the provision on separation of
church and state in the General Provisions of the 1973 Constitution, this was nothing
new as according to it, this principle was implied in the 1935 Constitution even in the
absence of a similar provision.[393]

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption
of church property was retained with minor modification in Article VI, Section 28(3) of
the 1987 Constitution. The same is true with respect to the prohibition on the use of
public money and property for religious purposes and the salaries of religious officers
serving in the enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing the
government to spend public money for purposes which might have religious
connections but which would benefit the public generally. Citing the Aglipay
case, Commissioner Rodrigo explained that if a public expenditure would benefit the
government directly, such expense would be constitutional even if it results to an
incidental benefit to religion. With that explanation, Commissioner Bacani no longer
pursued his proposal.[394]

The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was expressly
provided that optional instruction shall be conducted "within the regular class hours"
and "without additional cost to the government". There were protracted debates on
what additional cost meant, i.e., cost over and above what is needed for normal
operations such as wear and tear, electricity, janitorial services,[395] and when during the
day instruction would be conducted.[396] In deliberating on the phrase "within the regular
class hours," Commissioner Aquino expressed her reservations to this proposal as this
would violate the time-honored principle of separation of church and state. She cited
the McCullom case where religious instruction during regular school hours was stricken
down as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson where the U.S.
Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the rule on
non-establishment of religion, because if it were not necessary to make this exception
for purposes of allowing religious instruction, then we could just drop the amendment.
But, as a matter of fact, this is necessary because we are trying to introduce something
here which is contrary to American practices.[397] (emphasis supplied)
"(W)ithin regular class hours" was approved.

The provision on the separation of church and state was retained but placed under the
Principles in the Declaration of Principles and State Policies in Article II, Section 6. In
opting to retain the wording of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence `The separation of
Church and State is inviolable,' is almost a useless statement; but at the same time it is a
harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we
look at the jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the non-establishment clause in the
Bill of Rights.[398]
The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to
"Almighty God." There was considerable debate on whether to use "Almighty God"
which Commissioner Bacani said was more reflective of Filipino religiosity, but
Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal God.[399] "God of History",
"Lord of History" and "God" were also proposed, but the phrase "Almighty God"
prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987
Constitution is not hostile nor indifferent to religion;[400] its wall of separation is not a
wall of hostility or indifference.[401]

The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church
property, salary of religious officers in government institutions, optional religious
instruction and the preamble all reveal without doubt that the Filipino people, in
adopting these constitutions, did not intend to erect a high and impregnable wall of
separation between the church and state.[402] The strict neutrality approach which
examines only whether government action is for a secular purpose and does not
consider inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos manifested their
adherence to the benevolent neutrality approach in interpreting the religion clauses, an
approach that looks further than the secular purposes of government action and
examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the elevating
influence of religion in society; at the same time, it acknowledges that government must
pursue its secular goals. In pursuing these goals, however, government might adopt
laws or actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these religious
exercises as required by the Free Exercise Clause. It allows these breaches in the wall of
separation to uphold religious liberty, which after all is the integral purpose of the
religion clauses. The case at bar involves this first type of accommodation where an
exemption is sought from a law of general applicability that inadvertently burdens
religious exercise.

Although our constitutional history and interpretation mandate benevolent neutrality,

benevolent neutrality does not mean that the Court ought to grant exemptions every
time a free exercise claim comes before it. But it does mean that the Court will not
look with hostility or act indifferently towards religious beliefs and practices and that
it will strive to accommodate them when it can within flexible constitutional limits; it
does mean that the Court will not simply dismiss a claim under the Free Exercise
Clause because the conduct in question offends a law or the orthodox view for this
precisely is the protection afforded by the religion clauses of the Constitution, i.e.,
that in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion clauses justify
it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed.[403] We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only because
of its merits as discussed above, but more importantly, because our constitutional
history and interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious
liberty "not only for a minority, however small- not only for a majority, however large-
but for each of us" to the greatest extent possible within flexible constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has also been
recognized in Philippine jurisprudence, albeit not expressly called "benevolent
neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating
influence of religion in human society" but acknowledged the Constitutional provisions
on exemption from tax of church property, salary of religious officers in government
institutions, and optional religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and
Sundays legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and denominations,
but also acknowledged that government participation in long-standing traditions which
have acquired a social character - "the barrio fiesta is a socio-religious affair" - does not
offend the Establishment Clause. In Victoriano, the Court upheld the exemption from
closed shop provisions of members of religious sects who prohibited their members
from joining unions upon the justification that the exemption was not a violation of the
Establishment Clause but was only meant to relieve the burden on free exercise of
religion. In Ebralinag, members of the Jehovah's Witnesses were exempt from saluting
the flag as required by law, on the basis not of a statute granting exemption but of the
Free Exercise Clause without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin, Philippine
constitutional law has departed from the U.S. jurisprudence of employing a
separationist or strict neutrality approach. The Philippine religion clauses have taken a
life of their own, breathing the air of benevolent neutrality and accommodation. Thus,
the wall of separation in Philippine jurisdiction is not as high and impregnable as the
wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses are a
unique American experiment which understandably came about as a result of America's
English background and colonization, the life that these clauses have taken in this
jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national
soul, history and tradition. After all, "the life of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence unmistakably

show that benevolent neutrality is the lens with which the Court ought to view religion
clause cases, it must be stressed that the interest of the state should also be afforded
utmost protection. To do this, a test must be applied to draw the line between
permissible and forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious liberty, the law
must set a limit when their exercise offends the higher interest of the state. To do
otherwise is self-defeating for unlimited freedom would erode order in the state and
foment anarchy, eventually destroying the very state its members established to protect
their freedoms. The very purpose of the social contract by which people establish the
state is for the state to protect their liberties; for this purpose, they give up a portion of
these freedoms - including the natural right to free exercise - to the state. It was
certainly not the intention of the authors of the constitution that free exercise could be
used to countenance actions that would undo the constitutional order that guarantees
free exercise.[405]

The all important question then is the test that should be used in ascertaining the limits
of the exercise of religious freedom. Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear and present danger"
test but did not employ it. Nevertheless, this test continued to be cited in subsequent
cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the "immediate and grave danger" test
as well as the doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the law. The
case also used, albeit inappropriately, the "compelling state interest" test.
After Victoriano, German went back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden
case of American Bible Society. Not surprisingly, all the cases which employed the
"clear and present danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule that religious
freedom will not prevail over established institutions of society and law. Gerona,
however, which was the authority cited by German has been overruled
by Ebralinag which employed the "grave and immediate danger" test. Victoriano was
the only case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society,

Ebralinag and Iglesia ni Cristo where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct has different effects
on the state's interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the hierarchy
of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson.[406] This right is sacred for an invocation of the Free Exercise Clause is an
appeal to a higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty,[407] thus the Filipinos
implore the "aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed.[408] In determining which shall
prevail between the state's interest and religious liberty, reasonableness shall be the
guide.[409] The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays.
In the end, the "compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty will not be
preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit
relations are guilty of "disgraceful and immoral conduct" for which he/she may be held
administratively liable.[410] In these cases, there was not one dissent to the majority's
ruling that their conduct was immoral. The respondents themselves did not foist the
defense that their conduct was not immoral, but instead sought to prove that they did
not commit the alleged act or have abated from committing the act. The facts of the
1975 case of De Dios v. Alejo[411] and the 1999 case of Maguad v. De Guzman,[412] are
similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has
not registered any objection to the illicit relation, there is no proof of scandal or offense
to the moral sensibilities of the community in which the respondent and the partner live
and work, and the government employee is capacitated to marry while the partner is
not capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for "disgraceful and immoral conduct"
and only considered the foregoing circumstances to mitigate the penalty.
Respondent Escritor does not claim that there is error in the settled jurisprudence that
an illicit relation constitutes disgraceful and immoral conduct for which a government
employee is held liable. Nor is there an allegation that the norms of morality with
respect to illicit relations have shifted towards leniency from the time these precedent
cases were decided. The Court finds that there is no such error or shift, thus we find no
reason to deviate from these rulings that such illicit relationship constitutes "disgraceful
and immoral conduct" punishable under the Civil Service Law. Respondent having
admitted the alleged immoral conduct, she, like the respondents in the above-cited
cases, could be held administratively liable. However, there is a distinguishing factor
that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent
invokes religious freedom since her religion, the Jehovah's Witnesses, has, after
thorough investigation, allowed her conjugal arrangement with Quilapio based on the
church's religious beliefs and practices. This distinguishing factor compels the Court to
apply the religious clauses to the case at bar.

Without holding that religious freedom is not in issue in the case at bar, both the
dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr.
Justice Vitug dwell more on the standards of morality than on the religion clauses in
deciding the instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any
definition of morality beyond Socrates' simple formulation is bound to offend one or
another of the many rival theories regarding what it means to live morally.[413] The
answer to the question of how we ought to live necessarily considers that man does not
live in isolation, but in society. Devlin posits that a society is held together by a
community of ideas, made up not only of political ideas but also of ideas about the
manner its members should behave and govern their lives. The latter are their morals;
they constitute the public morality. Each member of society has ideas about what is
good and what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society on
common agreement, the agreement collapses, the society will disintegrate. Society is
kept together by the invisible bonds of common thought so that if the bonds are too
loose, the members would drift apart. A common morality is part of the bondage and
the bondage is part of the price of society; and mankind, which needs society, must pay
its price.[414] This design is parallel with the social contract in the realm of politics: people
give up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement about the
powers of government and their liberties and embody this agreement in a constitution,
hence referred to as the fundamental law of the land. A complete break of this
fundamental agreement such as by revolution destroys the old order and creates a new
one.[415] Similarly, in the realm of morality, the breakdown of the fundamental
agreement about the manner a society's members should behave and govern their lives
would disintegrate society. Thus, society is justified in taking steps to preserve its moral
code by law as it does to preserve its government and other essential institutions.
[416]
 From these propositions of Devlin, one cannot conclude that Devlin negates diversity
in society for he is merely saying that in the midst of this diversity, there should
nevertheless be a "fundamental agreement about good and evil" that will govern how
people in a society ought to live. His propositions, in fact, presuppose diversity hence
the need to come to an agreement; his position also allows for change of morality from
time to time which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in establishing
and maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may be amended
from time to time. Hart's argument propounded in Mr. Justice Vitug's separate opinion
that, "Devlin's view of people living in a single society as having common moral
foundation (is) overly simplistic" because "societies have always been diverse" fails to
recognize the necessity of Devlin's proposition in a democracy. Without fundamental
agreement on political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.

In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate
the order of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance.[417] Thus,
when public deliberation on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups.[418] Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies -- including protection of religious freedom "not only for a
minority, however small- not only for a majority, however large- but for each of us" --
the majority imposes upon itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting minorities.[419] In the realm of
religious exercise, benevolent neutrality that gives room for accommodation carries
out this promise, provided the compelling interests of the state are not eroded for the
preservation of the state is necessary to the preservation of religious liberty. That is
why benevolent neutrality is necessary in a pluralistic society such as the United States
and the Philippines to accommodate those minority religions which are politically
powerless. It is not surprising that Smith is much criticized for it blocks the judicial
recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he
law is the witness and deposit of our moral life."[420] "In a liberal democracy, the law
reflects social morality over a period of time."[421] Occasionally though, a
disproportionate political influence might cause a law to be enacted at odds with public
morality or legislature might fail to repeal laws embodying outdated traditional moral
views.[422] Law has also been defined as "something men create in their best moments to
protect themselves in their worst moments."[423] Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to modification and
reversal to better reflect the public morals of a society at a given time. After all, "the life
of the law...has been experience," in the words of Justice Holmes. This is not to say
though that law is all of morality. Law deals with the minimum standards of human
conduct while morality is concerned with the maximum. A person who regulates his
conduct with the sole object of avoiding punishment under the law does not meet the
higher moral standards set by society for him to be called a morally upright person.
[424]
 Law also serves as "a helpful starting point for thinking about a proper or ideal public
morality for a society"[425] in pursuit of moral progress.

In Magno v. Court of Appeals, et al.,[426] we articulated the relationship between law

and public morality. We held that under the utilitarian theory, the "protective theory" in
criminal law, "criminal law is founded upon the moral disapprobation x x x of actions
which are immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This disapprobation
is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. x x x That which we call punishment is only an
external means of emphasizing moral disapprobation: the method of punishment is in
reality the amount of punishment."[427] Stated otherwise, there are certain standards of
behavior or moral principles which society requires to be observed and these form the
bases of criminal law. Their breach is an offense not only against the person injured but
against society as a whole.[428] Thus, even if all involved in the misdeed are consenting
parties, such as in the case at bar, the injury done is to the public morals and the public
interest in the moral order.[429] Mr. Justice Vitug expresses concern on this point in his
separate opinion. He observes that certain immoral acts which appear private and not
harmful to society such as sexual congress "between a man and a prostitute, though
consensual and private, and with no injured third party, remains illegal in this country."
His opinion asks whether these laws on private morality are justified or they constitute
impingement on one's freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondent's conduct, which constitutes
concubinage,[430] is private in the sense that there is no injured party or the offended
spouse consents to the concubinage, the inescapable fact is that the legislature has
taken concubinage out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the constitutionality of this
law is not being raised in the case at bar. In the definition of the crime of concubinage,
consent of the injured party, i.e., the legal spouse, does not alter or negate the crime
unlike in rape[431] where consent of the supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in concubinage negates the prosecution of
the action,[432] but does not alter the legislature's characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that, "(t)he ponencia has
taken pains to distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only concern itself
with secular morality." The Court does not draw this distinction in the case at bar. The
distinction relevant to the case is not, as averred and discussed by the separate opinion,
"between secular and private morality," but between public and secular morality on the
one hand, and religious morality on the other, which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We
recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et
al., where we explained that for those wrongs which are not punishable by law, Articles
19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with
Human Relations, provide for the recognition of the wrong and the concomitant
punishment in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due and observe honesty and good faith.

xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage. (emphasis supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved),
would vouchsafe adequate legal remedy for that untold numbers of moral wrongs
which is impossible for human foresight to provide for specifically in the statutes.

But, it may be asked, would this proposed article obliterate the boundary line between
morality and law? The answer is that, in the last analysis, every good law draws its
breath of life from morals, from those principles which are written with words of fire in
the conscience of man. If this premise is admitted, then the proposed rule is a prudent
earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs
which cause damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its ancient
moorings, one can not but feel that it is safe and salutary to transmute, as far as may
be, moral norms into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social order than
that a person may with impunity cause damage to his fellow-men so long as he does not
break any law of the State, though he may be defying the most sacred postulates of
morality. What is more, the victim loses faith in the ability of the government to afford
him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the
German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the
morality it sanctions. Religious morality proceeds from a person's "views of his relations
to His Creator and to the obligations they impose of reverence to His being and
character and obedience to His Will," in accordance with this Court's definition of
religion in American Bible Society citing Davis. Religion also dictates "how we ought to
live" for the nature of religion is not just to know, but often, to act in accordance with
man's "views of his relations to His Creator."[434] But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion or the
other, and implies the affirmative "establishment" of a civil order for the resolution of
public moral disputes. This agreement on a secular mechanism is the price of ending the
"war of all sects against all"; the establishment of a secular public moral order is the
social contract produced by religious truce.[435]

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the
Code of Professional Responsibility for lawyers[436], or "public morals" in the Revised
Penal Code,[437] or "morals" in the New Civil Code,[438] or "moral character" in the
Constitution,[439] the distinction between public and secular morality on the one hand,
and religious morality, on the other, should be kept in mind.[440] The morality referred to
in the law is public and necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate may influence the civil
public order but public moral disputes may be resolved only on grounds articulable in
secular terms."[441] Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require conformity to
what some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse
that belief and thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. Expansive religious freedom therefore requires
that government be neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.[442]

In other words, government action, including its proscription of immorality as expressed

in criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society" and not because the
conduct is proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on those engaged
in public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human
mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven.[443] Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny of the
religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer
examination shows a discriminatory and prohibitory religious purpose, the law will be
struck down for being offensive of the religion clauses as in Church of the Lukumi
Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting
animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine constitution's religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals and interests but at
the same time strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.

Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach

when it states that in deciding the case at bar, the approach should consider that, "(a)s a
rule . . . moral laws are justified only to the extent that they directly or indirectly serve
to protect the interests of the larger society. It is only where their rigid application
would serve to obliterate the value which society seeks to uphold, or defeat the purpose
for which they are enacted would, a departure be justified." In religion clause parlance,
the separate opinion holds that laws of general applicability governing morals should
have a secular purpose of directly or indirectly protecting the interests of the state. If
the strict application of these laws (which are the Civil Service Law and the laws on
marriage) would erode the secular purposes of the law (which the separate opinion
identifies as upholding the sanctity of marriage and the family), then in a benevolent
neutrality framework, an accommodation of the unconventional religious belief and
practice (which the separate opinion holds should be respected on the ground of
freedom of belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required by the Free
Exercise Clause. The separate opinion then makes a preliminary discussion of the values
society seeks to protect in adhering to monogamous marriage, but concludes that these
values and the purposes of the applicable laws should be thoroughly examined and
evidence in relation thereto presented in the OCA. The accommodation approach in the
case at bar would also require a similar discussion of these values and presentation of
evidence before the OCA by the state that seeks to protect its interest on marriage and
opposes the accommodation of the unconventional religious belief and practice
regarding marriage.

The distinction between public and secular morality as expressed - albeit not exclusively
- in the law, on the one hand, and religious morality, on the other, is important because
the jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this
realm where it has authority. More concretely, should the Court declare respondent's
conduct as immoral and hold her administratively liable, the Court will be holding that in
the realm of public morality, her conduct is reprehensible or there are state interests
overriding her religious freedom. For as long as her conduct is being judged within this
realm, she will be accountable to the state. But in so ruling, the Court does not and
cannot say that her conduct should be made reprehensible in the realm of her church
where it is presently sanctioned and that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting her conduct are correct. On the other
hand, should the Court declare her conduct permissible, the Court will be holding that
under her unique circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality thus her conduct
should not be penalized. But the Court is not ruling that the tenets and practice of her
religion are correct nor that other churches which do not allow respondent's conjugal
arrangement should likewise allow such conjugal arrangement or should not find
anything immoral about it and therefore members of these churches are not
answerable for immorality to their Supreme Being. The Court cannot speak more than
what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot
inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared
that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law,
custom and rule of a church...are unquestionably ecclesiastical matters which are
outside the province of the civil courts."[444] But while the state, including the Court,
accords such deference to religious belief and exercise which enjoy protection under the
religious clauses, the social contract and the constitutional order are designed in such a
way that when religious belief flows into speech and conduct that step out of the
religious sphere and overlap with the secular and public realm, the state has the power
to regulate, prohibit and penalize these expressions and embodiments of belief insofar
as they affect the interests of the state. The state's inroad on religion exercise in excess
of this constitutional design is prohibited by the religion clauses; the Old World,
European and American history narrated above bears out the wisdom of this
proscription.

Having distinguished between public and secular morality and religious morality, the
more difficult task is determining which immoral acts under this public and secular
morality fall under the phrase "disgraceful and immoral conduct" for which a
government employee may be held administratively liable. The line is not easy to draw
for it is like "a line that divides land and sea, a coastline of irregularities and
indentations."[445] But the case at bar does not require us to comprehensively delineate
between those immoral acts for which one may be held administratively liable and
those to which administrative liability does not attach. We need not concern ourselves
in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and
cowardice" are immoral acts which constitute grounds for administrative liability. Nor
need we expend too much energy grappling with the propositions that not all immoral
acts are illegal or not all illegal acts are immoral, or different jurisdictions have different
standards of morality as discussed by the dissents and separate opinions, although
these observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the "law is the
witness and deposit of our moral life," then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that morality is
relative in different jurisdictions only affirms the truth that there is morality in a
particular jurisdiction; without, however, discounting the truth that underneath the
moral relativism are certain moral absolutes such as respect for life and truth-telling,
without which no society will survive. Only one conduct is in question before this Court,
i.e., the conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both immoral and
illegal. Lest the Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention upon the sole
conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme.

Justice Ynares-Santiago groped for standards of morality and stated that the
"ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards" but did not articulate how these standards are to be ascertained.
Instead, it held that, "(f)or those in the service of the Government, provisions of law and
court precedents . . . have to be considered." It identified the Civil Service Law and the
laws on adultery and concubinage as laws which respondent's conduct has offended and
cited a string of precedents where a government employee was found guilty of
committing a "disgraceful and immoral conduct" for maintaining illicit relations and was
thereby penalized. As stated above, there is no dispute that under settled jurisprudence,
respondent's conduct constitutes "disgraceful and immoral conduct." However, the
cases cited by the dissent do not involve the defense of religious freedom which
respondent in the case at bar invokes. Those cited cases cannot therefore serve as
precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States[446] in laying

down the standard of morality, viz: "(w)hether an act is immoral within the meaning of
the statute is not to be determined by respondent's concept of morality. The law
provides the standard; the offense is complete if respondent intended to perform, and
did in fact perform, the act which it condemns." The Mann Act under consideration in
the Cleveland case declares as an offense the transportation in interstate commerce of
"any woman or girl for the purpose of prostitution or debauchery, or for any other
immoral purpose."[447] The resolution of that case hinged on the interpretation of the
phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons'
act of transporting at least one plural wife whether for the purpose of cohabiting with
her, or for the purpose of aiding another member of their Mormon church in such a
project, was covered by the phrase "immoral purpose." In so ruling, the Court relied
on Reynolds which held that the Mormons' practice of polygamy, in spite of their
defense of religious freedom, was "odious among the northern and western nations of
Europe,"[448] "a return to barbarism,"[449] "contrary to the spirit of Christianity and of the
civilization which Christianity has produced in the Western world,"[450] and thus
punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at bar.
The pronouncements of the U.S. Supreme Court that polygamy is intrinsically "odious"
or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to
practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the Jehovah's
Witnesses under the same circumstances as respondent will not prevail over the laws
on adultery, concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable
by law.

While positing the view that the resolution of the case at bar lies more on determining
the applicable moral standards and less on religious freedom, Mme. Justice Ynares-
Santiago's dissent nevertheless discussed respondent's plea of religious freedom and
disposed of this defense by stating that "(a) clear and present danger of a substantive
evil, destructive to public morals, is a ground for the reasonable regulation of the free
exercise and enjoyment of religious profession. (American Bible Society v. City of
Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the
substantive evil in this case is the tearing down of morality, good order, and discipline in
the judiciary." However, the foregoing discussion has shown that the "clear and present
danger" test that is usually employed in cases involving freedom of expression is not
appropriate to the case at bar which involves purely religious conduct. The dissent also
cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and
immoral conduct." The Reynolds ruling, however, was reached with a strict neutrality
approach, which is not the approach contemplated by the Philippine constitution. As
discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the
religion clauses.

In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not
reflect the constitutional intent of employing benevolent neutrality in interpreting the
Philippine religion clauses. His dissent avers that respondent should be held
administratively liable not for "disgraceful and immoral conduct" but "conduct
prejudicial to the best interest of the service" as she is a necessary co-accused of her
partner in concubinage. The dissent stresses that being a court employee, her open
violation of the law is prejudicial to the administration of justice. Firstly, the dissent
offends due process as respondent was not given an opportunity to defend herself
against the charge of "conduct prejudicial to the best interest of the service." In
addition, there is no evidence of the alleged prejudice to the best interest of the service.
Most importantly, the dissent concludes that respondent's plea of religious freedom
cannot prevail without so much as employing a test that would balance respondent's
religious freedom and the state's interest at stake in the case at bar. The foregoing
discussion on the doctrine of religious freedom, however, shows that with benevolent
neutrality as a framework, the Court cannot simply reject respondent's plea of religious
freedom without even subjecting it to the "compelling state interest" test that would
balance her freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu decided
before the 1935 Constitution which unmistakably shows adherence to benevolent
neutrality - is not contemplated by our constitution.

Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.

Malik[451] cited in Mr. Justice Carpio's dissent decisive of the immorality issue in the case
at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge
for engaging in an adulterous relationship with another woman with whom he had three
children because "it (was) not `immoral' by Muslim standards for Judge Malik to marry a
second time while his first marriage (existed)." Putting the quoted portion in its proper
context would readily show that the Sulu Islamic case does not provide a precedent to
the case at bar. Immediately prior to the portion quoted by the dissent, the Court
stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the crime of
bigamy `shall not apply to a person married x x x under Muslim Law,' it is not `immoral'
by Muslim standards for Judge Malik to marry a second time while his first marriage
exists."[452] It was by law, therefore, that the Muslim conduct in question was classified
as an exception to the crime of bigamy and thus an exception to the general standards
of morality. The constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court
did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and
instead relied on the provision excepting the challenged Muslim conduct from the crime
of bigamy in holding that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court can apply as
basis for treating respondent's conduct as an exception to the prevailing jurisprudence
on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to
justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the
Case at Bar

The case at bar being one of first impression, we now subject the respondent's claim of
religious freedom to the "compelling state interest" test from a benevolent neutrality
stance - i.e. entertaining the possibility that respondent's claim to religious freedom
would warrant carving out an exception from the Civil Service Law; necessarily, her
defense of religious freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.

In applying the test, the first inquiry is whether respondent's right to religious
freedom has been burdened. There is no doubt that choosing between keeping her
employment and abandoning her religious belief and practice and family on the one
hand, and giving up her employment and keeping her religious practice and family on
the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court
found that Sherbert's religious exercise was burdened as the denial of unemployment
benefits "forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion
in order to accept work, on the other hand." The burden on respondent in the case at
bar is even greater as the price she has to pay for her employment is not only her
religious precept but also her family which, by the Declaration Pledging Faithfulness,
stands "honorable before God and men."

The second step is to ascertain respondent's sincerity in her religious

belief. Respondent appears to be sincere in her religious belief and practice and is not
merely using the "Declaration of Pledging Faithfulness" to avoid punishment for
immorality. She did not secure the Declaration only after entering the judiciary where
the moral standards are strict and defined, much less only after an administrative case
for immorality was filed against her. The Declaration was issued to her by her
congregation after ten years of living together with her partner, Quilapio, and ten years
before she entered the judiciary. Ministers from her congregation testified on the
authenticity of the Jehovah's Witnesses' practice of securing a Declaration and their
doctrinal or scriptural basis for such a practice. As the ministers testified, the
Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to
make the "union" of their members under respondent's circumstances "honorable
before God and men." It is also worthy of notice that the Report and Recommendation
of the investigating judge annexed letters[453] of the OCA to the respondent regarding
her request to be exempt from attending the flag ceremony after Circular No. 62-2001
was issued requiring attendance in the flag ceremony. The OCA's letters were not
submitted by respondent as evidence but annexed by the investigating judge in
explaining that he was caught in a dilemma whether to find respondent guilty of
immorality because the Court Administrator and Deputy Court Administrator had
different positions regarding respondent's request for exemption from the flag
ceremony on the ground of the Jehovah's Witnesses' contrary belief and practice.
Respondent's request for exemption from the flag ceremony shows her sincerity in
practicing the Jehovah's Witnesses' beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovah's Witnesses and the Jehovah
ministers testified that she is a member in good standing. Nevertheless, should the
government, thru the Solicitor General, want to further question the respondent's
sincerity and the centrality of her practice in her faith, it should be given the opportunity
to do so. The government has not been represented in the case at bar from its
incipience until this point.

In any event, even if the Court deems sufficient respondent's evidence on the sincerity
of her religious belief and its centrality in her faith, the case at bar cannot still be
decided using the "compelling state interest" test. The case at bar is one of first
impression, thus the parties were not aware of the burdens of proof they should
discharge in the Court's use of the "compelling state interest" test. We note that the
OCA found respondent's defense of religious freedom unavailing in the face of the
Court's ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court personnel have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state interest it upholds
is the preservation of the integrity of the judiciary by maintaining among its ranks a high
standard of morality and decency. However, there is nothing in the OCA's memorandum
to the Court that demonstrates how this interest is so compelling that it should override
respondent's plea of religious freedom nor is it shown that the means employed by the
government in pursuing its interest is the least restrictive to respondent's religious
exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on

the compelling interest of the state. The burden of evidence should be discharged by
the proper agency of the government which is the Office of the Solicitor General. To
properly settle the issue in the case at bar, the government should be given the
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing
the respondent's stance that her conjugal arrangement is not immoral and punishable
as it comes within the scope of free exercise protection. Should the Court prohibit and
punish her conduct where it is protected by the Free Exercise Clause, the Court's
action would be an unconstitutional encroachment of her right to religious freedom.
[454]
 We cannot therefore simply take a passing look at respondent's claim of religious
freedom, but must instead apply the "compelling state interest" test. The government
must be heard on the issue as it has not been given an opportunity to discharge its
burden of demonstrating the state's compelling interest which can override
respondent's religious belief and practice. To repeat, this is a case of first impression
where we are applying the "compelling state interest" test in a case involving purely
religious conduct. The careful application of the test is indispensable as how we will
decide the case will make a decisive difference in the life of the respondent who stands
not only before the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator.

The Solicitor General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent's claimed religious
belief and practice; (b) to present evidence on the state's "compelling interest" to
override respondent's religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondent's religious
freedom. The rehearing should be concluded thirty (30) days from the Office of the
Court Administrator's receipt of this Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.

Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J.
Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

[1]
 Kelley, D. "`Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal
Separation (1990), p. 17.

[2]
 Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668.

[3]
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse,"
University of Pennsylvania Law Review, vol. 140(1), November 1991, pp. 149-150.

[4]
 Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963).

[5]
 Rollo, pp. 5-6.

[6]
 Id.  at 8.

[7]
 Id.  at 19-26; TSN, October 12, 2000, pp. 3-10.

[8]
 Id.  at 101.

[9]
 Id.  at 100; Exhibit 3, Certificate of Death.
[10]
 Id.  at 10; Exhibit 1.

[11]
 Id.  at 11; Exhibit 2.

[12]
 Id.  at 27-33.

[13]
 Id.  at 37.

[14]
 Id.  at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.

[15]
 Id.  at 156-160, TSN, May 29, 2002, pp. 5-9.

[16]
 Citing biblical passages, this article addresses the question, "Does the validity of a
marriage depend entirely upon its recognition by civil authorities and does their
validation determine how Jehovah God, the author of marriage, views the union?" It
traces the origins of marriage to the time of the Hebrews when marriage was a family or
tribal affair. With the forming of Israel as a nation, God gave a law containing provisions
on marriage, but there was no requirement for a license to be obtained from the
priesthood nor that a priest or a representative from government be present in the
marriage to validate it. Instead, as long as God's law was adhered to, the marriage was
valid and honorable within the community where the couple lived. In later Bible times,
marriages came to be registered, but only after the marriage had been officiated,
thereby making the government only a record-keeper of the fact of marriage and not a
judge of its morality.

In the early centuries of the Christian congregation, marriage was likewise chiefly a
family affair and there was no requirement of license from the religious or civil authority
to make it valid and honorable. It was conformity to God's law that was necessary for
the marriage to be viewed as honorable within the congregation. Later, however, the
civil authorities came to have more prominence in determining the validity of a
marriage while the role of the congregation waned. Christians cannot turn their back on
this reality in desiring to make their marriage honorable "among all", i.e., in the sight of
God and men. However, the view of civil authorities regarding the validity of marriage is
relative and sometimes even contradictory to the standards set by the Bible. For
example, in some lands, polygamy is approved while the Bible says that a man should
only have one wife. Likewise, some countries allow divorce for the slightest reasons
while others do not allow divorce. The Bible, on the other hand, states that there is only
one ground for divorce, namely, fornication, and those divorcing for this reason become
free to marry.

To obtain a balanced view of civil authority (or Caesars' authority in Biblical terms)
regarding marriage, it is well to understand the interest of civil governments in
marriage. The government is concerned with the practical aspects of marriage such as
property rights and weakening genetic effects on children born to blood relatives, and
not with the religious or moral aspects of marriage. Caesar's authority is to provide legal
recognition and accompanying protection of marital rights in court systems, thus a
Christian desiring this recognition and rights must adhere to Caesar's requirements.
However, God is not bound by Caesar's decisions and the Christian "should rightly give
conscientious consideration to Caesar's marriage and divorce provisions but will always
give greatest consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom.
13:105). . . Thus the Christian appreciates that, even though Caesar's rulings of
themselves are not what finally determine the validity of his marriage in God's eyes, this
does not thereby exempt him from the Scriptural injunction: `Let marriage be honorable
among all.' (Heb. 13:4) He is obligated to do conscientiously whatever is within the
power to see that his marriage is accorded such honor by all." Those who wish to be
baptized members of the Christian congregation but do not have legal recognition of
their marital union should do all that is possible to obtain such recognition, thereby
removing any doubt as to the honorableness of their union in the eyes of people.

In some cases, however, it is not possible to secure this recognition. For instance, in
countries where divorce is not allowed even on the Scriptural ground of fornication,
either because of the dominance of one religion or other reasons, a man might have left
his unfaithful wife and lives with another woman with whom he has a family. He may
later learn the truth of God's Word and desire to be baptized as a disciple of God's Son,
but he cannot obtain divorce and remarry as the national laws do not allow these. He
might go to a land which permits divorce and remarry under the laws of that land and
add honor to his union, but upon returning to his homeland, the law therein might not
recognize the union. If this option is not available to that man, he should obtain a legal
separation from his estranged mate or resort to other legal remedies, then "make a
written statement to the local congregation pledging faithfulness to his present mate
and declaring his agreement to obtain a legal marriage certificate if the estranged legal
wife should die or if other circumstances should make possible the obtaining of such
registration. If his present mate likewise seeks baptism, she would also make such a
signed statement." (p. 182) In some cases, a person might have initiated the process of
divorce where the law allows it, but it may take a long period to finally obtain it. If upon
learning Bible truth, the person wants to be baptized, his baptism should not be delayed
by the pending divorce proceedings that would make his present union honorable for
"Bible examples indicate that unnecessary delay in taking the step of baptism is not
advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16)." Such person should then provide
the congregation with a statement pledging faithfulness, thereby establishing his
determination to maintain his current union in honor while he exerts effort to obtain
legal recognition of the union. Similarly, in the case of an already baptized Christian
whose spouse proves unfaithful and whose national laws do not recognize the God-
given right to divorce an adulterous mate and remarry, he should submit clear evidence
to the elders of the congregation of the mate's infidelity. If in the future he decides to
take another mate, he can do this in an honorable way by signing declarations pledging
faithfulness where they also promise to seek legal recognition of their union where it is
feasible. This declaration will be viewed by the congregation as "a putting of oneself on
record before God and man that the signer will be just as faithful to his or her existing
marital relationship as he or she would be if the union were one validated by civil
authorities. Such declaration is viewed as no less binding than one made before a
marriage officer representing a `Caesar' government of the world. . . It could contain a
statement such as the following:
I, __________, do here declare that I have accepted __________ as my mate in marital
relationship; that I have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of having been
unable to do so that I therefore make this declaration pledging faithfulness in this
marital relationship. I recognize this relationship as a binding tie before Jehovah God
and before all persons, to be held to and honored in full accord with the principles of
God's Word. I will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a change in circumstances
makes this possible I promise to legalize this union."
The declaration is signed by the declarant and by two others as witnesses and the date
of declaration is indicated therein. A copy of the declaration is kept by the persons
involved, by the congregation to which they belong, and by the branch office of the
Watch Tower Society in that area. It is also beneficial to announce to the congregation
that a declaration was made for their awareness that conscientious steps are being
undertaken to uphold the honorableness of the marriage relationship. It must be
realized, however, that if the declarant is unable to obtain recognition from the civil
authorities, even if he makes that declaration, "whatever consequences result to him as
far as the world outside is concerned are his sole responsibility and must be faced by
him." (p. 184) For instance, should there be inheritance or property issues arising from
an earlier marriage, he cannot seek legal protection with regard to his new,
unrecognized union.

[17]
 Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-32.

[18]
 Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6.

[19]
 Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.

[20]
 Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo, pp. 109-110,
"Maintaining Marriage Before God and Men", pp. 184-185.

[21]
 Rollo, p, 240; Respondent's Memorandum, p. 2.

[22]
 Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p. 3.

[23]
 Id.  at 4.

[24]
 Memorandum by Deputy Court Administrator Christopher Lock dated August 28,
2002, p. 6.

[25]
 A.M. No. P-96-1231, February 12, 1997.

[26]
 Memorandum by Deputy Court Administrator Christopher Lock dated August 28,
2002, p. 7.

[27]
 Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.

[28]
 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson,
and Horton, Walter M., The Growth of Religion (1938), p. 22.

[29]
 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson,
and Horton, Walter M., The Growth of Religion (1938), p. 29.

[30]
 Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution of Religion
(1923), pp. 68, 206.

[31]
 Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-528.

[32]
 Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p. 47.

[33]
 Pfeffer, L., supra, p. 4.

[34]
 Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in Complete Works
of Josephus, p. 500.

[35]
 Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.

[36]
 It may also be said that Moses actually used the concept of a single all-powerful God
as a means of unifying the Hebrews and establishing them as a nation, rather than vice
versa. What is important to note, however, is that the monotheism which served as
foundation of Christianity of western civilization with its consequences in church-state
relations was established by Moses of the Bible, not the Moses of history. Pfeffer,
L., supra, p. 5.

[37]
 Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p. 24.

[38]
 Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.

[39]
 Pfeffer, L., supra, p. 7.

[40]
 Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions (1934), p. 108.

[41]
 Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.

[42]
 Pfeffer, L., supra, p. 13.

[43]
 Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian Church (1940), p.
108.

[44]
 Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.

[45]
 Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, "Charles the Great," 14th ed.,
V, p. 258.

[46]
 Pfeffer, L., supra, p. 22.

[47]
 Pfeffer, L., supra, p. 23.

[48]
 Greene, E., Religion and the State (1941), p. 8.

[49]
 Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luther's Primary
Works (1885), pp. 194-185.
[50]
 Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in Chrisitianity," in Essays
on Freedom and Power (1949), p. 103.

[51]
 Pfeffer, L., supra, pp. 24-25.

[52]
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.

[53]
 Greene, E., supra, p. 9.

[54]
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.

[55]
 Pfeffer, L., supra, p. 26.

[56]
 Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church and State in
England (1950), p. 93.

[57]
 Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions (1949), pp. 674-675 and
Garbett, C., pp. 61-62.

[58]
 Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents, 130-135.

[59]
 Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243.

[60]
 Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.

[61]
 Everson v.Board of Education of the Township of Ewing, et al., 330 U.S. 1 (1947), pp.
8-9.

[62]
 Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.

[63]
 Pfeffer, L., supra, p. 30.

[64]
 Beth, L., American Theory of Church and State (1958), p. 3.

[65]
 Everson v. Board of Education, 330 US 1(1946), pp. 8-10.

[66]
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.

[67]
 Pfeffer, L., supra, pp. 92-93.

[68]
 Pfeffer, L., supra, p. 96.

[69]
 Pfeffer, L., supra, p. 95

[70]
 Another estimate of church membership in 1775 is that in none of the colonies was
membership in excess of 35 percent of the population. (Beth, L., American Theory of
Church and State [1958], p. 73.)

[71]
 Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making, Second
Edition (1980), p. 1276.

[72]
 Pfeffer, L., supra, pp. 96.

[73]
 Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American Dissent (1934), p.
202.

[74]
 Pfeffer, L., supra, p. 93.

[75]
 Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb, S.H., The Rise
of Religious Liberty in America (1902), p. 485.

[76]
 Pfeffer, L., supra, p. 85.

[77]
 Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.

[78]
 Pfeffer, L., supra, p. 87.

[79]
 Pfeffer, L., supra, p. 86.

[80]
 Pfeffer, L., supra, pp. 88-89.

[81]
 Pfeffer, L., supra, p. 101.

[82]
 Pfeffer, L., supra, p. 99.

[83]
 Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government (edited by
C.B: Macpherson), pp. 8-10.

[84]
 Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion in America,
1774-1789 (1924), pp. 368-369.

[85]
 Pfeffer, L., supra, p. 103.

[86]
 Drakeman, D., Church-State Constitutional Issues (1991), p. 55.

[87]
 Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of American
Civilization, I (1947), p. 449.

[88]
 Drakeman, D., supra, p. 55.

[89]
 Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy (1948), p. 267.

[90]
 Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in Establishing
Religious Liberty as a Foundation of the American Government, Papers of the American
Historical Association, II, p. 26.

[91]
 Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92]
 Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition in Religion
and Education (1950), pp. 46-47.

[93]
 Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion in America,
1774-1789 (1924), p. 379.

[94]
 Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.

[95]
 Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J., The
Separation of Church and State in Virginia (1910), p. 86.

[96]
 Beth, L., supra, p. 63.

[97]
 Id. at 81-82.

[98]
 Id. at 74-75.

[99]
 Beth, L., supra, p. 63.

[100]
 Id  at 63-65.

[101]
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse",
University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160.

[102]
 Id. at 63-65.

[103]
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse",
University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 160.

[104]
 Beth, L., supra, pp. 63-65.

[105]
 Id. at 69.

[106]
 Drakeman, D., supra, p. 59.

[107]
 Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L., supra, p. 92,
125, citing Kohler, M.J., "The Fathers of the Republic and Constitutional Establishment of
Religious Liberty" (1930), pp. 692-693.

[108]
 Beth, L., supra, p. 71.

[109]
 Berman, H., "Religious Freedom and the Challenge of the Modern State," Emory Law
Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152.

[110]
 Monsma, S., "The Neutrality Principle and a Pluralist Concept of Accommodation" in
Weber, P., Equal Separation (1990), p. 74.

[111]
 Berman, H., supra, pp. 151-152.
[112]
 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion
Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1340.

[113]
 Weber, P., "Neutrality and first Amendment Interpretation" in Equal Separation
(1990), pp. 5-7. See also Kauper, P., Religion and the Constitution (1964), p. 99.

[114]
 Monsma, S., supra, p. 73.

[115]
 See Carter, S., "The Resurrection of Religious Freedom," Harvard Law Review (1993),
vol. 107(1), p. 118, 128-129.

[116]
 Emanuel, S., Constitutional Law (1992), p. 633.

[117]
 Carter, S., supra, p. 118, 140.

[118]
 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review
(1992), vol. 59(1), p. 195, 214-215.

[119]
 Kauper, P., Religion and the Constitution (1964), pp, 24-25.

[120]
 133 U.S. 333 (1890).

[121]
 133 U.S. 333 (1890), p. 342.

[122]
 322 U.S. 78 (1944).

[123]
 United States v. Ballard, 322 U.S. 78 (1944), p. 86.

[124]
 Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law, Second Edition
(1999), pp. 522-523.

[125]
 367 U.S. 488 (1961).

[126]
 380 U.S. 163 (1965).

[127]
 Stephens, Jr., supra, p. 645.

[128]
 Id.  at 524.

[129]
 Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of Employment
Security, 489 U.S. 829 (1989).

[130]
 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion
Clause Cases," Vanderbilt Law Review, vol. 48(5), October 1995, p. 1335, 1336-1337.

[131]
 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal
Separation (1990), p. 20.

[132]
 Kauper, P., supra, p, 13.
[133]
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law
Review (1992), vol. 60 (2), p. 620, 626-627.

[134]
 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 168.

[135]
 McCoy, T., supra, p. 1335, 1336-1337.

[136]
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law
Review (1992), vol. 60 (2), p. 620, 626-627.

[137]
 Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for the Future:
Overcoming the Pfefferian Inversion," in The First Amendment Religion Liberty Clauses
and American Public Life, p. 183.

[138]
 Carter, S., supra, p. 118, 134-135.

[139]
 Lupu, I., "The Religion Clauses and Justice Brennan in Full," California Law Review
(1999), vol. 87(5), p. 1105, 1114.

[140]
 Everson v. Board of Education, 330 US 1 (1946), p. 15.

[141]
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.

[142]
 See McCoy, T., supra, p. 1335, 1336.

[143]
 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p.
49; Drakeman, Church-State Constitutional Issues (1991), p. 2.

[144]
 Reynolds v. United States, 98 U.S. 164 (1878), p. 163.

[145]
 Id. at 163.

[146]
 98 U.S. 145, 166.

[147]
 McCoy, T., supra, p. 1335, 1344-45.

[148]
 Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), p. 1069.

[149]
 136 U.S. 1 (1890).

[150]
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.

[151]
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.

[152]
 367 U.S. 488 (1961).

[153]
 322 U.S. 78, 86 (1944).
[154]
 310 U.S. 296 (1940).

[155]
 Id.  at 310.

[156]
 Id at 303-304.

[157]
 319 U.S. 157 (1943).

[158]
 340 U.S. 268 (1951).

[159]
 452 U.S. 640 (1981).

[160]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.

[161]
 133 U.S. 333, 345.

[162]
 McCoy, T., supra, p. 1335, 1344-45.

[163]
 310 U.S. 586 (1940).

[164]
 319 U.S. 624 (1943).

[165]
 Id. at 634.

[166]
 Id. at 639.

[167]
 McCoy, T., supra, p. 1335, 1345-46.

[168]
 See Bloostein, M., "The `Core'-`Periphery' Dichotomy in First Amendment Free
Exercise Clause Doctrine: Goldman v. Weinberger, Bowen v. Roy, and O'Lone v. Estate of
Shabbaz,z" Cornell Law Review, vol. 72 (4), p. 827, 828.

[169]
 366 U.S. 599 (1961).

[170]
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.

[171]
 374 U.S. 398 (1963).

[172]
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.

[173]
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.

[174]
 Id.  at 406.

[175]
 Lupu, I., supra, p. 1105, 1110.

[176]
 McCoy, T., supra, p. 1335, 1346-1347.
[177]
 450 U.S. 707 (1981).

[178]
 480 U.S. 136 (1987).

[179]
 455 U.S. 252 (1982).

[180]
 United States v. Lee, 455 U.S. 252 (1982), p. 260.

[181]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.

[182]
 406 U.S. 205 (1972).

[183]
 Id. at 214-215, 219-220.

[184]
 494 U.S. 872 (1990).

[185]
 McConnell, M., supra, p. 685, 726.

[186]
 McCoy, T., supra, p. 1335, 1350-1351.

[187]
 Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and 1191. See also
Sullivan, K., "Religion and Liberal Democracy", The University of Chicago Law Review
(1992), vol. 59(1), p. 195, 216.

[188]
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 139.

[189]
 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review
(1992), vol. 59(1), p. 195, 216.

[190]
 Carter, S., supra, p. 118.

[191]
 Rosenzweig, S., "Restoring Religious Freedom to the Workplace: Title VII, RFRA and
Religious Accommodation," University of Pennsylvania Law Review (1996), vol. 144(6),
p. 2513, 2516.

[192]
 138 L.Ed. 2d 624 (1994).

[193]
 508 U.S. 520 (1993).

[194]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.

[195]
 330 U.S. 1 (1946).

[196]
 Drakeman, D., supra, p. 4-6.

[197]
 Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.

[198]
 98 U.S. 164 (1878).
[199]
 Reynolds v. United States, 98 U.S. 164 (1878), p. 164.

[200]
 Id. at 164.

[201]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.

[202]
 Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.

[203]
 Id.  at 18.

[204]
 403 U.S. 602 (1971).

[205]
 Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.

[206]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.

[207]
 370 U.S. 421 (1962).

[208]
 374 U.S. 203 (1963).

[209]
 Id.

[210]
 Id. at 222.

[211]
 Witt, E. (ed.), supra, p. 93.

[212]
 472 U.S. 38 (1985).

[213]
 333 U.S. 203 (1948).

[214]
 343 U.S. 306 (1952).

[215]
 Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.

[216]
 366 U.S. 420 (1961).

[217]
 Id.  at 451-452.

[218]
 463 U.S. 783 (1983).

[219]
 Marsh v. Chambers, 463 US 783 (1983).

[220]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.

[221]
 465 U.S. 668 (1984).

[222]
 397 U.S. 664 (1970).
[223]
 Id.  at 673.

[224]
 Id.

[225]
 Id.  at 676.

[226]
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 119-120.

[227]
 Drakeman, D., supra, p. 51.

[228]
 Id.  at 53.

[229]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.

[230]
 Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State: Historical
Fact and Current Fiction. p. 50.

[231]
 Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds., The Debates
and Proceedings in the Congress of the United States, Compiled from Authentic
Materials (Annala), vol. 1, pp. 949-950.

[232]
 Beth, L., supra, p. 74.

[233]
 Drakeman, supra, pp. 57, 82.

[234]
 Buzzard, L., Ericsson, S., supra, p. 46.

[235]
 Beth, L., supra, p. 72.

[236]
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.

[237]
 Beth, L., supra, p. 71.

[238]
 The Constitution and Religion, p. 1541.

[239]
 Id. at 1539.

[240]
 Weber, P., "Neutrality and First Amendment Interpretation" in Equal Separation
(1990), p. 3.

[241]
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 120.

[242]
 Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.

[243]
 The Constitution and Religion, p. 1541, citing Kurland, Of Church and State and the
Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[244]
 Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and the Law
(1962), p. 18.

[245]
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse,"
University of Pennsylvania Law Review, vol. 140(1), November 1991, p. 149, 186.

[246]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.

[247]
 Buzzard, L., Ericsson, S., supra, p. 60.

[248]
 Kelley, D., supra, p. 1189.

[249]
 Monsma, S., supra, p. 74.

[250]
 Id.  at 75.

[251]
 Smith, S., supra, p. 149, 159.

[252]
 Drakeman, supra, p. 54.

[253]
 Grossman, J.B. and Wells, R.S., supra, p. 1276.

[254]
 Smith, S., supra, p. 149, 159.

[255]
 Id.  at 149, 159-160.

[256]
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.

[257]
 Id.  at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and Roemer: From Separation
to Détente in Church-State Relations", 55 North Carolina Law Review (April 1977), 563-
75.

[258]
 Buzzard, L., Ericsson, S., supra, p. 51.

[259]
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.

[260]
 Buzzard, L., Ericsson, S., supra, p. 61.

[261]
 Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.

[262]
 Kelley, D., supra, p. 34.

[263]
 Id.  at 34, citing Milton Yinger, J., The Scientific Study of Religion (1970), p. 21.

[264]
 Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of Religion (1963), pp.
xxvii, xxviii.

[265]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
[266]
 Berman, H., supra, p. 162.

[267]
 The Constitution and Religion, p. 1569.

[268]
 McCoy, T., supra, p. 1335, 1338-1339.

[269]
 McConnell, M., "Accommodation of Religion: An Update and a Response to the
Critics", The George Washington Law Review (1992), vol. 60 (3), p. 685, 688.

[270]
 Id.

[271]
 Id.  at 689.

[272]
 Id.  at 690-694, 715.

[273]
 Id.  at 686.

[274]
 Id.  at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663, 679 (1989)
(Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S. 668, 673 (1984); Marsh v.
Chambers, 463 U.S. 783, 792 (1983).

[275]
 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 139, 184.

[276]
 Id.  at 174.

[277]
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law
Review (1992), vol. 60 (2), p. 620, 631.

[278]
 Buzzard, L., Ericsson, S., supra, pp. 61-62.

[279]
 Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional Law, 2nd ed.
(1988), p. 1251. See also Nowak, J., Rotunda, R., and Young, J., Constitutional Law,
3rd ed. (1986), pp. 1067-1069.

[280]
 Id.  at 633.

[281]
 Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.

[282]
 McConnell, M., "Accommodation of Religion: An Update and a Response to the
Critics", The George Washington Law Review (1992), vol. 60 (3), p. 685, 715.

[283]
 Buzzard, L., Ericsson, S., supra, pp. 61-63.

[284]
 McConnell, "The Origins and Historical Understanding of Free Exercise of Religion,"
Harvard Law Review , vol. 103 (1990), p. 1410, 1416-7.

[285]
 Buzzard, L., Ericsson, S., supra, p. 70.
[286]
 McConnell, M., "Accommodation of Religion: An Update and a Response to the
Critics," The George Washington Law Review (1992), vol. 60 (3), p. 685, 735.

[287]
 Buzzard, L., Ericsson, S., supra, pp. 68-71.

[288]
 Lupu, I., supra, p. 743, 775.

[289]
 Id.  at 775.

[290]
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.

[291]
 Buzzard, L., Ericsson, S., supra, p. 68.

[292]
 Lupu, I., supra, p. 743, 776.

[293]
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.

[294]
 Martinez, H., "The High and Impregnable Wall of Separation Between Church and
State", Philippine Law Journal (1962), vol. 37(5), p. 748, 766.

[295]
 Article II.

[296]
 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary
(1995), p. 284.

[297]
 Coquia, J., Church and State Law and Relations, p. 52, citing Article X of the Treaty of
Paris. The territories referred to were Cuba, Puerto Rico, Guam, the West Indies and the
Philippine Islands.

[298]
 Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la Republica Filipina
promulgada el dia 22 de Enero de 1899 (Edicion oficial, Islas Filipinas, Barazoain, Bul.,
1899), p. 9.

[299]
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp.
13, 148.

[300]
 Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With Philippine
Organic Laws 10.

[301]
 25 Phil. 273 (1913).

[302]
 Id.  at 276.

[303]
 Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd Congress (1934).

[304]
 Laurel, S., Proceedings of the Philippine Constitutional Convention, vol. III (1966), pp.
654-655.

[305]
 Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p. 164.
[306]
 Id.  at 150.

[307]
 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.

[308]
 Baddiri, E., "Islam and the 1987 Constitution: An Issue on the Practice of Religion,"
45 Ateneo Law Journal 161 (2001), p. 208, citing Syed Muhammad Al-Naquib Al-Attas,
Islam and Secularism 46 (1978).

[309]
 Id.  at 208, citing Lewis, B., Islam and the West 3 (1993).

[310]
 64 Phil 201 (1937).

[311]
 101 Phil. 386 (1957).

[312]
 Bernas, Constitutional Rights and Social Demands, Part II, p. 268.

[313]
 106 Phil. 2 (1959).

[314]
 Id. at 9-10.

[315]
 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987),
p. 225, Footnote 38.

[316]
 319 U.S. 103.

[317]
 234 SCRA 630 (1994).

[318]
 493 U.S. 378 (1990).

[319]
 106 Phil. 2 (1959).

[320]
 106 Phil. 2 (1959), p. 10.

[321]
 Id.  at 11-12.

[322]
 Id.  at 14.

[323]
 Id.  at 25.

[324]
 Id.  at 24-25.

[325]
 110 Phil 150.

[326]
 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93 (1974); Gonzalez
v. Central Azucarera de Tarlac Labor Union, 139 SCRA (1985).

[327]
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54 (1974), p. 72.
[328]
 Id.  at 73.

[329]
 64 Phil 201.

[330]
 392 US 236.

[331]
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.

[332]
 Id.  at 75.

[333]
 Id.

[334]
 61 SCRA 93 (1974).

[335]
 80 SCRA 350 (1977).

[336]
 139 SCRA 30 (1985).

[337]
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing Cantwell v.
Connecticut, 310 U.S. 296.

[338]
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.

[339]
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985).

[340]
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting Opinion of Justice
Teehankee.

[341]
 219 SCRA 256 (1993), March 1, 1993.

[342]
 Id.  at 270-271.

[343]
 Id.  at 271-272.

[344]
 Id.  at 272.

[345]
 Id.  at 272-273.

[346]
 Id.  at 270.

[347]
 Id.  at 269.

[348]
 259 SCRA 529 (1996).

[349]
 Id.  at 543; citing Cruz, I., Constitutional Law (1991), p. 178.

[350]
 Id., citing Cruz, I., Constitutional Law (1991), p. 544.

[351]
 Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff, Speech, Harm and
Self-Government: Understanding the Ambit of the Clear and Present Danger Test, 91
Col. Law Rev. No. 6, p. 1453 (1991).

[352]
 Id.

[353]
 Bernas, Constitutional Rights and Social Demands, Part II, p. 314.

[354]
 This argument was a central theme in John Locke's A Letter Concerning Toleration,
which strongly influenced the thinking of many Americans, including Jefferson and
Madison. (Smith, S., "The Rise and Fall of Religious Freedom in Constitutional
Discourse", University of Pennsylvania Law Review, vol. 140[1], November 1991, p. 149,
155).

[355]
 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987),
p. 233.

[356]
 Id.  at 234.

[357]
 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the Philippines: A
Commentary (1987), p. 234.

[358]
 An Act Appropriating the Sum of Sixty Thousand Pesos and Making the Same
Available out of any Funds in the Insular Treasury not otherwise Appropriated for the
Cost of Plates and Printing of Postage Stamps with New Designs, and for other Purposes.

[359]
 Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.

[360]
 Id.  at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).

[361]
 104 SCRA 510 (1981).

[362]
 86 SCRA 413 (1978).

[363]
 367 U.S. 488 (1961).

[364]
 Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.

[365]
 96 Phil. 417 (1955).

[366]
 45 Am. Jur. 77.

[367]
 96 Phil 417 (1955), p. 426.

[368]
 Id.  at 441, citing American authorities.

[369]
 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.

[370]
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371]
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.

[372]
 Walz v. Tax Commission, supra, p. 668.

[373]
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.

[374]
 Drakeman, D., supra, p. 127.

[375]
 Buzzard, L. and Ericsson, S., supra, p. 75.

[376]
 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary
(1995), pp. 288-289.

[377]
 Ang-Angco v. Castillo, 9 SCRA 619 (1963).

[378]
 Martin, Statutory Construction (1979), p. 210.

[379]
 Aruego, J., supra, pp. 331-337.

[380]
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp.
154-155, citing Francisco (ed.), Journal of the Constitutional Convention of the
Philippines, vol. 4, pp. 1550, 1552.

[381]
 Aruego, J., supra, p. 337.

[382]
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), p.
153.

[383]
 Id.  at 153, citing Francisco (ed.), Journal of the Constitutional Convention of the
Philippines, vol. 4, p. 1539.

[384]
 Id.  at 153-154, citing Francisco (ed.), Journal of the Constitutional Convention of the
Philippines, vol. 4, pp. 1541-1543.

[385]
 Aruego, J., supra, pp. 340-345.

[386]
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp.
156-157, citing Escareal (ed.), Constitutional Convention Record, vol. 10 (1967), p. 29.

[387]
 Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp. 627-629.

[388]
 Martin, supra, p. 218.

[389]
 Aglipay v. Ruiz, supra, p. 206.

[390]
 Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1 (1952), pp. 269-
270.

[391]
 Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the
Committee on Church and State of the 1971 Constitutional Convention, p. 18.

[392]
 Bernas, J., Background paper for reconsideration of the religion provisions of the
constitution (1971), pp. 41-43.

[393]
 Tingson, J., Report of the Committee on Church and State of the 1971 Constitutional
Convention Report, p. 5.

[394]
 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406, citing Records
of the Constitutional Commission, vol. II, pp. 193-194.

[395]
 Records of the Constitutional Commission, vol. 4, p. 362.

[396]
 Id.  at 358.

[397]
 Id.  at 359.

[398]
 Id.  at 973.

[399]
 Records of the Constitutional Commission, vol. 1, p. 102.

[400]
 Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268.

[401]
 Cruz, I., Constitutional Law (1995), p. 167.

[402]
 Martinez, H., supra, p. 768-772.

[403]
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 169.

[404]
 Martinez, H., supra, p. 773.

[405]
 Neuhaus, R., supra, p. 630.

[406]
 Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the University of
Virginia, in The Complete Jefferson (Saul K. Padover ed., 1969), p. 957, 958.

[407]
 Neuhaus, R., supra, p. 630.

[408]
 Carter, S., supra, pp. 140-142.

[409]
 Cruz, I., Constitutional Law (1995), p. 178.

[410]
 Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v. Bucatcat, 380
Phil. 555 (2000); Navarro v. Navarro, 339 SCRA 709 (2000); Ecube-Badel v. Badel, 339
Phil. 510 (1997); Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil. 49
(1985).

[411]
 68 SCRA 354 (1975).
[412]
 305 SCRA 469 (1999).

[413]
 Rachels, J., The Elements of Moral Philosophy (1986), p. 1.

[414]
 Devlin, P., The Enforcement of Morals (1965), p. 10.

[415]
 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).

[416]
 Devlin, P., supra, 13.

[417]
 Neuhaus, R., supra, pp. 621, 624-625.

[418]
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law
Review (1992), vol. 59(1), p. 115, 139.

[419]
 Neuhaus, R., supra, pp. 624-625.

[420]
 Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The Path of the
Law, 10 Harv. L. Rev., 457, 459 (1897).

[421]
 Id. at 247.

[422]
 Greenwalt, K., supra, p. 272.

[423]
 Buzzard, L. and Ericsson, S., supra, p. 31.

[424]
 Devlin, P., supra, pp. 19-20.

[425]
 Id. at 247.

[426]
 210 SCRA 471 (1992).

[427]
 Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing Aquino, The
Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12, citing People v. Roldan Zaballero, CA
54 O.G. 6904. Note also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil.
31.

[428]
 Devlin, P., supra, pp. 6-7.

[429]
 Id. at 19.

[430]
 Article 334 of the Revised Penal Code provides, viz:

"Art. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal
dwelling, or shall have sexual intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro."

[431]
 Article 266-A of the Revised Penal Code.

[432]
 Rule 110 of the Revised Rules of Criminal Procedure, as amended provides in
relevant part, viz:

"The crime of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both are alive, nor, in any case, if the
offended party has consented to the offense or pardoned the offenders."

[433]
 Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186 (1956), pp.
202-203, citing Report of the Code Commission on the Proposed Civil Code of the
Philippines, pp. 40-41.

[434]
 Carter, S., supra, p. 138.

[435]
 Sullivan, K., supra, pp. 197-198.

[436]
 Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer shall
not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)

[437]
 Title Six of the Revised Penal Code is entitled Crimes against Public Morals and
includes therein provisions on gambling and betting. (emphasis supplied)

[438]
 The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs or prejudicial to a third person with a right
recognized by law.

Article 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

Article 1306. The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided that are not contrary to law, morals,
good customs, public order, or public policy.

Article 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy; x x x" (emphasis supplied)
[439]
 Article XIV, Section 3 provides in relevant part, viz:
(1) All educational institutions shall include the study of the Constitution as part of
the curricula.
(2) They shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of
 citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational
efficiency. (emphasis supplied)
[440]
 To illustrate the distinction between public or secular morality and religious
morality, we take the example of a judge. If the public morality of a society deems that
the death penalty is necessary to keep society together and thus crystallizes this
morality into law, a judge might find himself in a conflict between public morality and
his religious morality. He might discern that after weighing all considerations, his
religious beliefs compel him not to impose the death penalty as to do so would be
immoral. If the judge refuses to impose the death penalty where the crime warrants it,
he will be made accountable to the state which is the authority in the realm of public
morality and be held administratively liable for failing to perform his duty to the state. If
he refuses to act according to the public morality because he finds more compelling his
religious morality where he is answerable to an authority he deems higher than the
state, then his choice is to get out of the public morality realm where he has the duty to
enforce the public morality or continue to face the sanctions of the state for his failure
to perform his duty. See Griffin, L., "The Relevance of Religion to a Lawyer's Work: Legal
Ethics", Fordham Law Review (1998), vol. 66(4), p. 1253 for a discussion of a similar
dilemma involving lawyers.

[441]
 Sullivan, K., supra, p. 196.

[442]
 Smith, S., supra, pp. 184-185. For a defense of this view, see William P. Marshall, We
Know It When We See It": The Supreme Court and Establishment, 59 S.Cal. L. Rev. 495
(1986). For an extended criticism of this position, see  Steven D. Smith, "Symbols,
Perceptions, and Doctrinal Illusions: Establishment Neutrality and the `No
Establishment' Test", 86 Mich. L. Rev. 266 (1987).

[443]
 Ostrom, V., "Religion and the Constitution of the American Political System", Emory
Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville, Democracy in America (1945), p.
305.

[444]
 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.

[445]
 Devlin, P., supra, p. 22.

[446]
 329 U.S. 14 (1946).

[447]
 Cleveland v. United States, 329 U.S. 14, p. 16.

[448]
 Reynolds v. United States, supra, p. 164.

[449]
 Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.

[450]
 Id.

[451]
 226 SCRA 193 (1993).
[452]
 Id. at 199.

[453]
 Annexes "A" and "B" of the Report and Recommendation of Executive Judge
Bonifacio Sanz Maceda.

[454]
 Cruz, I., supra, p. 176.

SEPARATE OPINION*

Two roads diverged in a wood, and I

I took the one less traveled by
And that has made all the difference.
- Robert Frost, "The Road Not Taken"

BELLOSILLO, J.:

With due respect to my very gracious colleague, Mme. Justice Consuelo Ynares-
Santiago, I beg to disagree with the majority view espoused by her. This is an
exceptional case calling for an extraordinary solution, hence, the wise foreboding "not
to go where the path leads; rather, go where there is no path, and blaze a trail!"

Indeed, it would have been too easy and convenient - for those who are not familiar
with the whole story of this case - to conclude at first blush that immorality is present
and penalty is its just reward; for the fabulous fans of the tide, their inference would not
have had any better foundation. But in the proper context in which the events
complained of transpired, we cannot avoid being drawn to the conclusion that
respondent Soledad S. Escritor should be absolved of the administrative charge against
her for there is absolutely nothing from her actuations that would
constitute disgraceful or immoral conduct.

Contrary to some impressions, the core of complainant's factual allegations occurred

long before respondent joined the judiciary in 1999. She was a widow capacitated to
marry when she was appointed court interpreter. Her status as "separada"  who had
been faithfully, devotedly and peacefully taking good care of her family - her partner
and their twenty-two (22) year old son - was sanctified as early as 1991 by the Jehovah's
Witnesses, the religious group to which she and her family belonged, a period of almost
ten (10) years before she was employed as court interpreter and before the instant
complaint against her was filed in the year 2000. Indeed, in light of these facts, what
better institution is there to judge her morality than her own church; what business
does the government have to judge her conduct that is not criminal in nature nor
destructive of her efficiency in the service? This is the pith and soul of what may be
referred to as "a lonely voice in the wilderness."
For emphasis, respondent was already a widow when she joined the judiciary in 1999 as
court interpreter of RTC-Br. 253, Las Piñas City. At that time she was legally free to
marry her partner of more than twenty (20) years, one Feliciano D. Quilapio Jr., who has
been her family ever since her husband Joselito V. de Torres, now deceased, abandoned
her for another woman in 1979. Unfortunately it is Feliciano who remains incapacitated
to exchange vows with respondent since his wife from whom he had been separated de
facto  even before he and Soledad fell in love with each other, is still alive and their
marriage subsisting in the cold eyes of the law. These legal complications however
vanished in the stream of care, understanding and love as they bore their first and only
child, now twenty-two (22) years of age, in a family that each never had in their past
marriages.

Respondent and her de facto husband belong to the church known as Jehovah's

Witnesses. According to their congregation, the informal conjugal partnership between
them has been characterized by faithfulness and devotion to each other for more than
two (2) decades. On 28 July 1991, with the proper inspiration and guidance of their
spiritual leaders in Atimonan, Quezon, where they were then residing before their
transfer to Metro Manila, Soledad and Feliciano voluntarily executed a document called
"Declaration Pledging Faithfulness," conformably with their religious practice and with
the sanction of their respected elders in the Jehovah's Witnesses who acted willingly as
their witnesses. In this document they confirmed the presence of legal impediments to
their marrying each other but nonetheless promised to remain loyal and committed to
one another at all times as they sought all avenues to obtain legal recognition of their
union by civil authorities.[1]

As the record also shows, the "Declaration Pledging Faithfulness" was issued only after
an exhaustive investigation of the personal circumstances of respondent and her
partner Feliciano while they were still residents of Atimonan, Quezon, approximately
more than two hundred (200) kilometers away from Las Piñas City where respondent
was eventually employed. The religious document was not given out perfunctorily and
indiscriminately. It was executed in their favor and released to them only after some ten
(10) years of faithful and uneventful cohabitation, as well as close monitoring and
observation, and long before the instant complaint was filed.

On 22 August 2000 respondent was charged with the administrative offense of

"Disgraceful and Immoral Conduct," a grave offense under the Omnibus Civil Service
Rules and Regulation, by a total stranger in her life and place of work. Complainant is a
resident of Bacoor, Cavite, while respondent's place of work is in Las Piñas City. Quite
obviously, the sudden spark of "moral conscience" on the part of complainant
Alejandro Estrada was stage-managed by an "unseen hand" against whom respondent
had earlier filed an administrative complaint; hitting back, in other words.

A total outsider and a mere kibitzer in the "war" between respondent and the "unseen
hand," complainant confessed that he had nothing personal against respondent whom
he did not even know, much less acquainted with, but simply wanted allegedly to
protect the court from the embarrassment of having to "employ a person of
questionable moral standards." Significantly, while accusing her of disgraceful and
immoral conduct, complainant admitted that respondent was a "decent woman."[2] All
told, the accusation is a fiddle and a ruse meant to impress all and sundry into believing
that strangers and people in general have become "moral crusaders without
compassion" - a simply silly thought in the midst of awry moral priorities and rampant
rent-seeking incredibly tolerated in our society. The succeeding paragraph apparently
shows the bias and prejudice of respondent's presiding judge against her.

On 9 October 2000 respondent moved for the inhibition of the presiding judge of RTC-
Br. 253, Las Piñas City, whom she accused of partiality due to the administrative
complaint she had filed against him with the Office of the Court Administrator. In her
perception, complainant Estrada was only a dummy of her presiding judge who, quite
interestingly, was himself the subject of two (2) administrative cases for "acts of serious
impropriety unbecoming a judge"[3] and for "gross ignorance of procedural law and
unreasonable delay in the issuance of an order for the execution of a civil
judgment."[4] But the presiding judge denied the motion for his inhibition reasoning out
that the mere filing of an administrative complaint against him by respondent did not
disqualify him from hearing the case.

On 12 October 2000 respondent was able to confront her accuser as their respective
testimonies were taken one after the other. Curiously, the presiding judge volunteered
to act as counsel, as he did, for Soledad Escritor when the latter manifested that she had
no lawyer who could take her direct testimony, (a seemingly improper procedure
considering that he is the respondent in the other administrative case filed by
respondent herein against him), thus leaving to his discretion the details of respondent's
defense that went on record. Respondent judge in fact propounded the direct questions
on respondent Escritor.

On 7 November 2000 the presiding judge endorsed the complaint along with
respondent's answer thereto and the transcript of the initial proceedings to Executive
Judge Manuel B. Fernandez Jr. of RTC, Las Piñas City, who on 13 November 2000 in turn
transmitted the records to the Office of the Court Administrator for proper disposition.

On 17 July 2001 we ordered respondent Escritor to comment on the letter-

complaint of Estrada, which she promptly did. On 22 January 2002 Executive Judge
Bonifacio Sanz Maceda, RTC, Las Piñas City, was directed by the Court Administrator to
investigate the letter-complaint and to submit his report and recommendation thereon
within sixty (60) days from receipt of the records.

The parties presented their respective witnesses and documents on three (3) hearing
dates where the offer of evidence apparently revolved around Judge Maceda's
formulation of the issue, i.e., whether to exact from respondent Escritor the moral
standards of the Catholic faith in determining her administrative responsibility when she
is a member of the Jehovah's Witnesses.[5] In the investigation a quo, respondent proved
the due execution and authenticity of the "Declaration Pledging Faithfulness."

On 1 July 2002 Judge Maceda rendered his Report and Recommendation absolving

respondent of the charge of immorality on the ground that her relationship has been
well-accepted by the religious sect to which she and her partner adhered.

Indeed, it is not quite possible to state with precision and fix an inflexible standard for
the administrative offense of disgraceful and immoral conduct, or to specify the moral
delinquency and obliquity that should render employees of the judiciary unworthy of
the public trust. Immorality covers a multitude of sins and it may be doubted whether
there are in the entire civil service many persons so saintly as never to have done any
act which is disapproved by the prevailing mores of our society.[6] Truly, while in the
opinion of many, laziness, gluttony, vanity, selfishness, avarice and cowardice constitute
in themselves immoral conduct, moral guardians get around or avoid punishing them
tangibly.

To find merit in a charge of disgraceful and immoral conduct is therefore a sensitive

task, especially so when considered against the gravity of the offense and penalty
attached to it by law[7] together with the social consequence of ascribing a "badge of
infamy," so to speak, that disqualifies the respondent from any further employment,
including prospects of private employment, which stamps the stigma of official
defamation of character.[8] To say the least, we must be careful when delineating the
fine line separating the simply obnoxious or unconventional behavior from the
genuinely actionable conduct meriting administrative discipline.

"Disgraceful and immoral conduct" is never considered in the abstract but always in the
context of conduct that is hostile to the welfare of a particular profession or the specific
governmental position to which the alleged disgraceful and immoral employee belongs.
[9]
 To some degree the determination of disgracefulness and immorality must depend
upon the nature of the acts, the circumspection or notoriety with which they are
performed and the atmosphere of the community, i.e., the standards of the general
public and not some higher standard,[10] in which they take place.[11] As explained
in Morrison v. State Board of Education -
By interpreting these broad terms to apply to the employee's performance on the job,
the decisions x x x give content to language which otherwise would be too sweeping to
be meaningful. Terms such as "immoral or unprofessional conduct" or "moral turpitude"
stretch over so wide a range that they embrace an unlimited area of conduct. In using
them the Legislature surely did not mean to endow the employing agency with the
power to dismiss any employee whose personal, private conduct incurred its
disapproval. Hence the courts have consistently related the terms to the issue of
whether, when applied to the performance of the employee on the job, the employee
has disqualified himself.[12]
This understanding is crucial because our jurisprudence defines disgraceful and immoral
conduct as "that which is willful, flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and respectable members of the
community,"[13] none of which is true in this case, and the Constitution recognizes our
multi-cultural experience and decrees a principle of unity in diversity. As the definition
poignantly suggests, a charge of disgraceful and immoral conduct does not depend
solely upon the character of the protested act or series of acts but must include a
holistic evaluation of the circumstances obtaining in each case.[14]

Even this Court's oft-repeated justification for penalizing disgraceful and immoral
conduct does not treat the questioned action in isolation nor chastises it for its own
sake, but instead refers to the tendency of the allegedly disgraceful and immoral
conduct to discredit either the employee himself or the service. Verily, in appropriate
cases, private morality can be isolated from the circumscription of the public sphere
where respondent's moral lapses do not prove prejudicial to the service.[15]

Given the foregoing standard by which to judge a particular conduct as disgraceful and
immoral, Executive Judge Bonifacio Sanz Maceda of RTC, Las Piñas City, as investigating
Judge was correct when he reduced the issue in this case to whether the moral
standards of the Catholic faith, to which a great majority of us belongs, must be exacted
of respondent in determining her administrative responsibility when she is a member of
the Jehovah's Witnesses, and recommended the absolution of respondent of the charge
of disgraceful and immoral conduct on the ground that her relationship has been well-
accepted by the religious sect to which she and her partner adhered. But even if we do
apply the standards of the Catholic faith to non-Catholics, although we should not,
Judge Maceda's recommendation to free respondent from any culpability is clearly
justified as respondent's actuation is not, nor is it even hinted at that it is, prejudicial to
the service.

None can honestly posit, much less assert, that respondent is guilty of disgraceful and
immoral conduct in the sense that she had done something willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community in a manner prejudicial to the service. For one,
punishing Soledad Escritor by any kind of penalty will not solve or prove anything
because she stands to be harassed and penalized again and again every time somebody
dislikes her face, as her situation will inevitably continue until we direct them to break
up their church-sanctioned relationship, which we are not prepared to do for being
cruel and unusual.

The alternative is not any better. This Court might be dissolving a strong and peaceful
family of more than two (2) decades and, in the extreme case, deprive respondent of
livelihood from which to feed herself and her family. At bottom, if we are to uphold the
complaint, we will be breaking up an otherwise ideal union of two (2) individuals who
have managed to stay together as husband and wife for more than twenty (20) years
and at peace with the world as solemnly attested to by the Jehovah's Witnesses to
which they belong. And what happens to their son born of their happy union? Certainly,
it will adversely affect him in his interaction with his friends and neighbors. This, in all
conscience, Christians cannot countenance.

Moreover, there is simply nothing disgraceful and immoral in respondent's decision to

pursue her happiness, and perhaps security, after her lawful husband abandoned her for
another woman. She did not forsake any child nor desert her household. It was her
philandering husband who left her for another woman. To paraphrase Judge Learned
Hand, Soledad was not obligated to live in complete celibacy otherwise forfeit her claim
to good moral character.[16] There ought to be a better order of moral priorities to avoid
the perceived fixation on sex where a person may have impeccable sexual standards - or
indeed be celibate - and yet steal.

To be sure, there are matters that are best left to the conscience and the moral beliefs
of an individual, and matters of which public law may take cognizance. Obviously, while
the latter pertains to matters affecting society and public life, not every "irregular union"
constitutes immorality that is actionable under administrative law. Consider this: a
Catholic who obtains a decree of nullity from his church would be available to remarry
by the norms and precepts of his faith and moral standards. Before civil law, however,
his marriage would be bigamous. The second union may be categorized as a crime, but
one would hardly be justified in classifying it as "immoral conduct" because the moral
standards he lives by - those of his faith - precisely permit him the second marriage. To
hold that the second union is immoral would be to bind him to follow moral precepts
divergent from those imposed upon him by his faith, contrary to the freedom of
conscience and practice of his religion guaranteed under the Constitution.

That is why, although some years back society decried solo parenthood and de
facto separated couples as an affront to the conventional wisdom of a model family,
recent social justice legislation has compassionately redefined the concept of family to
include single mothers and their children regardless of the mother's civil status,
otherwise no single parent would be employed by the government service, and that
would be discriminatory, if not to say, unconstitutional![17] In the opinion of a Philippine
Daily Inquirer columnist on the standards of the general public of what is moral and
decent,[18] the humane and moral response to dysfunctional marriages is that -
The quality or authenticity of a family, or a marriage for that matter, does not lie in its
legal status alone, or on the united front that spouses present before polite society.
Rather, it lies in the relationship between spouses and between them and their children
and other members of the family. If there is genuine caring and concern, respect and
fondness among them, then it is a family in the fullest sense of the word. But if there is
only pretense, indifference and hypocrisy, or worse, cruelty and pain, then that
marriage is better off ended, the family better off liberated.[19]
It must be emphasized that nothing was presented in the investigation a quo to prove
that respondent lived her life in a scandalous or disgraceful manner, or that by any
means she has affected her standing in the community.[20] Certainly there was no
intention on her part to embarrass the judiciary since the relationship started in 1980
and blessed by ministers and elders of the Jehovah's Witnesses in 1991 in Atimonan,
Quezon, after establishing a faithful partnership of more than ten (10) years.

Although a verified complaint consisting of hearsay allegations could be the basis of an

administrative case,[21] it begs explanation why only such a weak charge from a total
stranger could be mustered against respondent for her allegedly immoral relationship
spanning more than twenty (20) years. Let it be further underscored that the legal wife
of her partner Feliciano, indisputably the person most concerned, or any other
individual from Atimonan, Quezon, or in Las Piñas City where respondent found
employment, has not sounded any objection to the relationship. This fact clearly shows
that respondent has not jeopardized her honor, nor that of any citizen in the
community.

Indeed, if respondent's conduct were truly willful, flagrant, shameless, and immoral in
the view of the good and respectable members of the community, there is no sense why
her co-employees themselves never complained against her conduct. Their silence
genuinely indicates not only the absence of outrage and scandal within the Hall of
Justice of Las Piñas City arising from respondent's relationship with Feliciano D. Quilapio
Jr., but in all probability also the community's acceptance, if not respect, for her true
faith and steadfast commitment to her partner and family of more than two (2)
decades.
There is no cogent reason to justify any action that will disrupt or break apart the
peaceful existence of the family founded by Soledad and her other half. The record does
not show that they have caused discomfiture and embarrassment to the judiciary nor
that the relationship ever compromised her duties as a court interpreter. Her efficiency
in her job has never been doubted for any reason attributable to the union with her
informal partner. Certainly we cannot describe the concern and love she has for so long
exhibited as a willful, flagrant and shameless conduct.

Without doubt, too, the genuine sensitivity and overwhelming solicitude of respondent
to the demands of morality and righteousness, and "the opinion of the good and
respectable members of the community," are manifested by her attempt to seek the
clarification and guidance of her moral mentors - the elders of the church to which she
and her partner belong; they who in 1991 ruled that they did not find anything immoral
about the union. Precisely, in the "Declaration Pledging Faithfulness" before revered
elders of the Jehovah's Witnesses, respondent and her partner promised to secure the
formal approval of civil authorities and to stay devoted to each other thus -
I, Soledad Escritor, do here declare that I have accepted Feliciano D. Quilapio, Jr. as my
mate in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public authorities and that it is because of
having been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.

I recognize this relationship as a binding tie before "Jehovah" God and before all persons
to be held to and honored in full accord with the principles of God's Word. I will
continue to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances makes this possible, I
promise to legalize this union.
It bears stressing that the "Declaration Pledging Faithfulness," a duly executed and
genuine document, was not perfunctorily or indiscriminately issued; it was only after
some ten (10) years of authentic family life and an exhaustive investigation and
evaluation of the relationship of the parties thereto. Clearly, the act was done long
before the instant complaint was filed and definitely with no intention to deceive
anyone as to the character and motive of their union. While we do not encourage such a
union, we cannot on the other hand totally ignore a fact of life.

The Jehovah's Witnesses is one of the respected congregations of Christians in the

country. It counts among its members upright and productive citizens whose views on
morality cannot be disregarded. Consequently when elders of this religion affixed their
imprimatur on the "Declaration Pledging Faithfulness" they validated the moral
legitimacy of respondent's informal conjugal partnership. Of course, first and foremost,
the appropriate judge of respondent's morality is her own church and this task cannot
be assigned to any other institution in society if any religious congregation is to have any
purpose at all.

We cannot ignore the religious sentiment of the Jehovah's Witnesses which in any event
falls squarely within society's interest in a functional family. This Court's respect for the
positive traditions of the Jehovah's Witnesses stands on equal footing with our
deference to a Muslim judge's prerogative to have more than one wife in exceptional
cases provided he can deal with them with equal companionship and just treatment as
enjoined by Islamic law[22] as with any other legitimate social and cultural practices.

Verily, this is not the first time that this Court is dismissing a charge of disgraceful and
immoral conduct on the ground of distinctive bona fide beliefs and practices. In Sulu
Islamic Association of Masjid Lambayong v. Malik we dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with another woman
with whom he had three children because "it [was] not  `immoral' by Muslim standards
for Judge Malik to marry a second time while his first marriage [existed]."[23] In De Dios v.
Alejo[24] we quoted with approval a decision of the then Board of Civil Service to extend
compassion to a situation analogous to the instant case -
Of equal pertinence to the case at bar, is the decision of the Board of Civil Service in
Administrative Case No. III x x x promulgated on July 30, 1941. The Board of Civil Service
Appeal ruled as follows: "x x x x The complainant in this case was a total outsider, and
the legal wife, who are the persons most concerned, have not vowed any objection to
the situation. This fact, while not significant by itself, reveals that the respondent has
not jeopardized the honor of any third person. This Board is aware that it is not an easy
task to determine whether a certain improper conduct constitutes immoral conduct
within the meaning of the Civil Service Rules and Regulations to warrant removal from
the service; but in this particular case, this Board is fully convinced that the respondent
in taking another woman - was impelled by no other than an honest and decent
intention to overcome his misfortune and to live anew to take his natural place among
his fellowmen. It would be in violation of all human conventions - cruel to say the least -
to require the respondent to live with his unfaithful spouse. The respondent is a mere
principal clerk - a position which does not exercise a moral influence in the community x
x x x It is pertinent to state here that the efficiency of the respondent in the discharge of
his duties is not questioned x x x x In this connection, we quote the words of Governor
General Theodore Roosevelt in the case of Municipal Treasurer Juan T. Soriano who was
similarly charged with immorality way back in 1932: The undersigned x x x would be
inclined to favor dropping this case entirely and restoring him to his former positions.
There are involved in the case six people beside himself - his legal wife, the woman with
whom he is living, and four children. It does not appear that any of these people who
are most concerned of all have voiced an objection to the situation as it existed for ten
(10) years nor that they would be in anyway benefited by the action proposed herein. In
fact, such action would probably work great hardship on most of them.[25]
The cases where the charge of disgraceful and immoral conduct was sufficiently proved
by evidence cannot be controlling since the instant case differs from them in several
respects. In Marquez v. Clores-Ramos,[26]  Bucatcat v. Bucatcat[27] and  Maguad v. De
Guzman,[28] for example, the illicit relationship in question clearly caused furor within
the community whose moral sensibilities were offended as shown by the social standing
and manifest interest of the complainants therein. In the instant case, all we have is the
word of a kibitzer who could not even get the support of respondent's co-employees to
prove that Soledad's actions indeed caused scandal in the office and in the community
at large.

Furthermore, unlike the relationship between respondent and her mate, the informal
partnership in  Clores-Ramos,  Bucatcat  and De Guzman blossomed while the parties
concerned were already employees of the trial court, and worse, without the benefit of
the same respect showed by respondent for "the opinion of the good and respectable
members of the community" since the guilty liaisons therein were fueled only by passion
for the paramour. Quite obviously, as demonstrated by the fact that Soledad was
admitted into the service and allowed to assume office as court interpreter despite her
relationship with Feliciano D. Quilapio Jr., the judiciary believed in the innocence of her
domestic arrangement for more than twenty (20) years and fully accepted her private
morality.

The human side of this case should not be totally ignored because respondent's present
position is not one which has caused scandal to anyone truly concerned with public
morality. The instant case may therefore be viewed and appreciated with human
understanding as indeed it is more attuned to the interest of society and public service
that she be able to fulfill her obligation of maternal support and care for her son and
true family than for us to tear apart an otherwise ideal union of two loving and
respectable individuals.

While this Court is aware of the not-so-easy and clear-cut task of determining whether
certain improper conduct would constitute disgraceful immorality and warrant
administrative discipline, to be sure, in this particular case we are wholly convinced that
respondent in living with her present partner to foster a wholesome family was impelled
by only the honest and decent intention to overcome her previous marital misfortune
and to take anew her natural place in a pleasant and wholesome community. Without
fear of contradiction, it would be violating godly laws of charity and love and, to say the
least, embracing cruelty and hypocrisy, if we should require respondent to abandon her
faithful spouse and loving son, or penalize her for treasuring the unity of her family as
she would keep her work, for the punctilious satisfaction of a blind world.[29]

More enlightened jurisdictions would treat adverse personnel actions, i.e., dismissal,
suspension, fine or other penalties, arising from a charge of immoral conduct with due
consideration of the constitutional rights of due process and privacy. We may also apply
the same standard in the instant case if only to accord ample recognition to the
principle that a civil servant does not surrender his constitutional rights once he
assumes public service, hence, he may not be dismissed from his job for a
constitutionally impermissible reason.[30]

Mindel v. Civil Service Commission,[31] for example, involves a post office clerk who was
removed from the service for "immoral conduct" because he had lived with a young lady
without the benefit of marriage. The federal court ordered his reinstatement since
"Mindel's termination was arbitrary and capricious, and therefore violated due process x
x x and his right to privacy."[32] It was observed that Mindel was employed in a most
insensitive position as postal clerk and his alleged conduct was discreet, not notorious,
much less scandalous.[33] The federal court held finally that even if Mindel's conduct can
be characterized as "immoral," he cannot constitutionally be penalized on this ground
absent "a rational nexus between his conduct and his duties as a postal clerk. A
reviewing court must at least be able to discern some reasonably foreseeable specific
connection between an employee's potentially embarrassing conduct and the efficiency
of the service."[34]

Clearly, "immorality" as a category of offense for the dismissal of a public servant or a

judicial employee should not be construed as any violation of moral prescriptions.
Otherwise, this tack would only embroil this Court in the eternal debate on divergent
moral theories and systems. For a public servant, the pivotal question in determining
administrative culpability ought to be whether the challenged conduct was ultimately
prejudicial to public service. We cannot snoop into bedrooms and peer under bed
covers without running afoul of every person's constitutionally protected individuality.
Quite interestingly, in American jurisprudence, conduct affecting one's personal
character has been excluded from the ambit of actionable behavior. It stressed: "But
conduct amounting to mere irregularity or merely affecting one's character as a private
individual is not usually covered by the term `malconduct.'"[35]

It is more than a matter of sympathy; it is a clear does of justice indeed to conclude that
respondent did not fail to live up to her ethical obligations; in conscience and in law, this
Court should be the last, and never, to cast the stone and stamp the badge of infamy
upon her legitimate desire for personal security and safety that in reality has bothered
no one, least of all, our own judicial institution.

WHEREFORE, I do not agree with the views expressed by Mme. Justice Consuelo Ynares-
Santiago but concur with the ponencia of Mr. Justice Puno in the result.

* Originally a Dissenting Opinion to the ponencia of Mme. Justice Consuelo Ynares-

Santiago hence the tenor of this Separate Opinion.

[1]
 Record, p. 15.

[2]
 TSN, 12 October 2000, p. 7; Rollo, p. 23.

[3]
 Alumbres v. Caoibes, A.M. No. RTJ-99-1431, 23 January 2002.

[4]
 Spouses Monterola v. Caoibes, A.M. No. RTJ-01-1620, 18 March 2002.

[5]
 Hearings were held on 8 March 2002, 15 April 2002 and 29 May 2002; see Report and
Recommendation, p. 3.

[6]
 Norton v. Macy, 417 F.2d 1161 (1969).

[7]
 The Omnibus Civil Service Rules and Regulations classifies "disgraceful and immoral
conduct" as a grave offense and imposes the penalty of suspension from office for six (6)
months and one (1) day to one (1) year in the first instance.

[8]
 Norton v. Macy, supra at 1164.

[9]
 Morrison v. State Board of Education, 461 P.2d 375 (1969).

[10]
 Risner v. State Personnel Board of Review, 381 N.E.2d 346, 350 (1978).

[11]
 Major v. Hampton, 413 F. Supp. 66 (1976).

[12]
 Morrison v. State Board of Education, supra at 382.
[13]
 Obusan v. Obusan, A.C. No. 1392, 2 April 1984, 128 SCRA 485, 487; Narag v. Narag,
A. C. No. 3405, 29 June 1998, 291 SCRA 451.

[14]
 Madredijo v. Loyao, A.M. No. RTJ-98-1424, 13 October 1999, 316 SCRA 544;
Santos v.  National Labor Relations Commission, G.R. No. 115795, 6 March 1998, 287
SCRA 117.

[15]
 De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354; Burgos v. Baduel,
A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[16]
 Schmidt v. United States, 177 F.2d 450, 451 (1949).

[17]
 Rep. Act No. 8972 (2000). This law is popularly known as "Solo Parents' Welfare Act
of 2000."

[18]
 See the "2002 ISSP Survey on the Family" of the Social Weather Station which
concluded that "[o]nly 28% agree, whereas 58% disagree, that `It is better to have a bad
marriage than no marriage at all'" at http://www.sws.org.ph..

[19]
 "Welcome Relief for Couples, Courts," At Large by Columnist Rina Jimenez-David, 19
January 2003 issue of the Philippine Daily Inquirer.

[20]
 Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[21]
 Celis v. Marquez, A.M. No. R-156-P, 27  August 1985, 138 SCRA 256 citing Anonymous
Complaint v. Araula, A. M. No. 1571-CFI, 7 February 1978, 81 SCRA 483; Bernardo v.
Fabros, A.M. No. MTJ-99-1189, 12 May 1999, 307 SCRA 28.

[22]
 See Pres. Decree No. 1083 (1977), Art. 27. This law is entitled "A Decree to Ordain and
Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim
Personal Laws, and Providing for its Administration and for Other Purposes."

[23]
 A.M. No. MTJ-92-691, 10 September 1993, 226 SCRA 193, 199.

[24]
 A.M. No. P-137, 15 December 1975, 68 SCRA 354.

[25]
 Id., pp. 359-360, 362.

[26]
 A.M. No. P-96-1182, 19 July 2000, 336 SCRA 122.

[27]
 A.M. No. P-93-985, 28 January 2000, 323 SCRA 578.

[28]
 A.M. No. P-94-1015, 29 March 1999, 305 SCRA 469.

[29]
 See Burgos v. Baduel, A.M. No. P-11, 30 April 1976, 70 SCRA 416.

[30]
 McMahon v. Board of Selection of Town Newtown, 506 F.Supp. 537 (1981).

[31]
 312 F. Supp. 485 (1970).
[32]
 Id., p. 487.

[33]
 Ibid.

[34]
 Ibid.

[35]
 63 A Am. Jur. 2d, Public Officers and Employees, Sec. 247.

SEPARATE OPINION

VITUG, J.:

The facts, mostly conceded, would appear to be a little less than adequate to respond to
some fundamental issues spawned by the case. The controversy involves Soledad
S. Escritor, a court interpreter of the Regional Trial Court of Las Piñas, Branch 253, who,
admittedly, has since 1980 and while married to another, been cohabiting with Luciano
Quilapio Jr., himself married to another. Escritor and Quilapio have a nineteen-year old
son. Private complainant, Alejandro Estrada, is not personally related to Escritor nor
does he personally know her. He, however, would have her relationship with Quilapio
adjudged by this Court to be immoral in consonance with the pertinent provisions of the
Administrative Code.[1] In her defense, Escritor contends that under the rules of the
Jehovah's Witnesses, a religious sect of which she is a member, the act of signing a
Declaration Pledging Faithfulness,[2] is sufficient to legitimize a union which would
otherwise be classified as adulterous and bigamous. Escritor alleges that in compliance
with the foregoing rules, she and her partner signed the Declaration Pledging
Faithfulness in 1991 and by virtue of such act, they are, for all purposes, regarded as
husband and wife by the religious denomination of which they are devout adherents.

The ponencia has thus justifiably discussed the ramifications of the constitutionally

protected right of freedom of religion clause on the issue. Nevertheless, one cannot
help but have a few misgivings. Escritor has admitted to having lived with Quilapio since
1980, or for a period of twenty-three years, yet she has signed the Declaration of
Pledging Faithfulness only on 28 July 1991, or a total of eleven years since her
questioned cohabitation. The delay might be attributed to a number of reasons. One
possibility would be that Escritor and Quilapio have tried to comply with the rules of the
religious sect which, as can be so gleaned from the wordings of the Declaration, requires
one with an impediment to legalize a subsequent union to do "all within his ability to
obtain recognition of the relationship by the proper authorities." The facts do not show
that either Escritor or Quilapio, complied with the foregoing requisite by seeking the
annulment of their respective marriages during the first eleven years of the questioned
union. It may be of no moment that Escritor has joined the judiciary only in 1999,
already then a widow, and thus capacitated to enter into another marriage because
then and now Quilapio remains married to another. Does the act of Escritor in signing
the declaration pledging faithfulness, long after the actual union, a fait accompli, serve
to legitimize what might not originally be? I fear that the focus would have to instead be
on Escritor's freedom of personal belief, i.e., whether the invoked provision in the
Administrative Code would impinge on Escritor's freedom of an honestly held belief that
her conduct is morally acceptable and justifiable. The issue then is the meaning of
"immorality," the standards that can be used to measure it and the role that society
must be perceived to play. Not all moral norms are covered by law nor are all laws
moral norms.

It is established that adultery and concubinage constitute criminal offenses. Thus, I shall
not delve on the legal and philosophical intricacies that surround them. The question
should rather be, given the settings, whether under the basic facts and circumstances
thus far disclosed, such immoral conduct should be dealt with and sanctioned by law. If
so, one might likewise examine under what moral authority the law purports to so act.

The ponencia has taken pains to distinguish between secular and private morality, and
reached the conclusion that the law, as an instrument of the secular State should only
concern itself with secular morality. I agree with its well-written dissertation
emphasizing, in particular, that the state can interfere with "private immoralities" to the
extent that they affect the general or the common good. Defining, however, the line
where an immoral conduct crosses the private sphere to the realm of a general concern
could be a most daunting task. Can it be argued, for instance, that there having been no
private offended party, their respective legal spouses never having filed any criminal or
civil complaint against them, the relationship between Escritor and Quilapio should be
confined solely to the sphere of private morality? This question but typifies the thorny
relationship, in turn, between law and morality that has engaged philosophers for
centuries --- Does society possess the right to pass judgment on matter of morals?
Second, if it has the right to pass such judgment, has it also the right to use the weapon
of law to enforce it?

Philippine laws on the subject are veritable repositories of moral laws that sanction
immoral conduct which, at first glance, could appear to be private and to cause no harm
to larger society but nevertheless dealt with. Examples of such instances include general
references to "good moral character" as a qualification and as a condition for remaining
in public office, and sex between a man and a prostitute, though consensual and private,
and with no injured third party, remains illegal in this country. Until just about a month
ago, the United States Supreme Court has outlawed acts of sodomy or consensual
sexual relations between two consenting males, even if done in the privacy of the
bedroom.[3] Are moral laws such as these justified? Do they not unduly impinge on one's
own freedom of belief?

Law and Morals

Law and morals, albeit  closely connected, may proceed along different planes. Law is
primarily directed at man's behavior while morals are directed at his animus or state of
mind.[4] While the law often makes reference to one's state of mind, it does not,
however, punish the existence of immoral intent without more. It requires only that at
the risk of punitive sanctions for disobedience, one must refrain from the temptation to
act in accordance with such intent to the detriment of another. The ethical principle is
generally cast, affirmatively or negatively, in the form of a direct command, whereas the
legal rule speaks, generally, of the consequences that attend the violation of a duty.[5] As
to purpose, law and morals further diverge. Morals strive for individual perfection, while
law aim at harmony in the community.[6]

Not all societal mores are codified into laws. We have yet to see a law outlawing vanity,
pride, gluttony or sloth. Nor are all laws necessarily moral. Slavery is outlawed but not
so in our distant past. Laws allowing racial segregation prejudicial to blacks or denying
the right to suffrage to women may seem to be relics of a long gone uncivilized society if
one forgets that the abolition of these "immoral laws" is but less than a century ago.

The observation brings to the fore some characteristics of morals, which make it unwise
to insist that it be, at all times, co-extensive with law --- First, morals are not entirely
error free. To insist that laws should always embody the prevailing morality without
questioning whether the morals sought to be upheld are in themselves right or wrong
would be a dangerous proposition. Second, morals continuously change over time, often
too slowly to be immediately discerned. To ensure that laws keep pace with the ever-
changing moralities would be quite a perplexed, if not a futile, an endeavor. Third,
standards of morality vary. Modern society is essentially pluralist. People of different
faiths owe common allegiance to the State. Different moral judgments flow from varying
religious premises that, obviously, the law cannot all accommodate.[7]

The Common Origin of Morality and the Law

That law and morals are closely intertwined is a traditionally held belief. One school of
thought even go as far as calling a law without morality as not law at all; but naked
power, and that human beings not only have a legal, but also the moral obligation to
obey the law.[8] It suggests that where law clashes with morality, it can impose no
obligation, moral or otherwise, upon anyone to obey it; one may actually be morally
bound to disobey such law.[9] The ancient role held by the Christian Church as being the
ruler of both spiritual and temporal affairs of men has laid that groundwork for the
impression. The Judaic-Christian God is thought to be the source of both law and
morality and man has come to know of His law and morals through the human soul, the
human conscience and the human mind.[10] With the rise of the secular state in the 16th
and 17th centuries and the corresponding decline in the authority of the Church, legal
thinkers such as Pufendorf, Vattel, and Burlamaqui would establish legal systems based
on scientific principles deduced from the nature of men and things, that would guide
the behavior of the metaphysical man in directions that promote political order and
assure a measure of protected individual dignity.[11] Such treatises on natural law have
offered model political systems based on scientific principles logically deduced from the
nature of man and the nature of things, serving to give a kind of scientific legitimacy to
the newly formed nation states emerging in the 17th and 18th centuries under human
sovereigns. Not surprisingly, sovereigns of that era promulgated natural law codes
consisting of religious commandments, quasi-human moral values and civic virtues all
couched in the language of legal proscriptions proclaimed and enforced by secular
states.[12] Human conduct condemned by God's law and forbidden by the sovereign's law
would be said to be morally, as well as legally, reprehensible or malum in se.[13]
As the law of the state became inexorably intertwined with higher moral law, based on
both divine law and the law of nature, so, also, human law was seen to carry the moral
authority of both.[14] Jurisprudential ramifications could hardly be contained.

In the last 19th century, legal reformers have consciously inculcated moral concepts
such as fault, intent, and extenuating circumstances into both civil and criminal law. Law
and morals have been drawn closer together so that legal accountability, more
accurately than not, would likewise reflect moral culpability.[15] Vestiges of these
reforms are still enshrined in our laws. In the Revised Penal Code, for example,
mitigating, extenuating or aggravating circumstances that may either decrease or
increase the penalties to be meted on an offender are all based on the moral attributes
of the crime and the criminal.

The academic polemic

With the emergence of the secular state, the greatest contribution of liberals to the
issue is not the discovery of a pre-existing, necessary distinction between law and
morality; rather, it is their attempt at separation, the building of the wall to separate law
from morality, whose coincidence is sublimely monstrous.[16] Liberals attempt to divorce
law from morality by characteristically adhering to some form of "harm" principle:
public authority may justly use law as coercive factor only to prevent harm to non-
consenting third parties. More specifically, the main distinguishing feature of liberalism
is its opposition to morals law or the legal interference up to and including (sometimes)
prohibition of putatively "victimless" immoralities such as sodomy, prostitution,
fornication, recreational drug use, suicide and euthanasia.[17] Liberals argue that moral
laws are, in principle, unjust.

This surge of liberalism has set the trend in the courts to adopt a neutral and
disinterested stand in cases involving moral issues, often at the expense of obscuring
the values which society seeks to enforce through its moral laws. This matter brings to
mind the case of Grisworld vs. Connecticut[18] where the US Supreme Court, despite a
presupposition that contraception is always wrong, nevertheless, has invalidated that
state's anti-contraceptive law. In so deciding, the US Supreme Court has not met head-
on the issue of whether the use of contraception is immoral but instead has struck down
the law as being invalid on the ground of marital privacy. Should Grisworld then be
taken to sanction a moral right to do a moral wrong?

Into the Twentieth Century: the Devlin-Hart Debate

On September 1957 in England, the Committee on Homosexual Offenses and

Prostitution chaired by Sir John Wolfenden has recommended in its report to the British
Parliament that homosexual behavior between two consenting adults in private should
no longer be a criminal offense. The thesis holds that it is not the duty of the law to
concern itself with immorality as such. The report has proposed to resolve questions of
the legitimacy of legally enforcing moral obligations by distinguishing immoralities that
implicate public interests from immoralities that are merely private.[19] The Wolfenden
Report would spark an academic debate that persists to this day.
Patrick Devlin, then a High Court judge, has argued at the British Academy's 1959
Maccabaean Lecture that it would be a mistake to posit a private sphere of immorality
into which the law ought not to venture. Devlin's legal moralism hinges on the theory
that moral offenses insofar as they affect common good are fit subjects for legislation.
Whether behavior, private or public may affect common good in such a manner that
endanger the fabric of society and should thus be suppressed by law is a question of
fact, which can be answered only after a full consideration of the conditions prevailing in
a given society.[20] To Devlin, morals are not merely a matter of private judgment; society
should be in a position to enforce its moral standards as a means of self-preservation,
whatever its morality happens to be.  [21] Devlin would thus become the forerunner
of ethical relativism which suggests that there is no right and wrong in any absolute
sense, that right or wrong depend entirely on the culture in which one happens to live.
[22]
 Devlin then would tolerate individual freedom only as far as possible and as long as it
is consistent with the integrity of society.[23] Hence, while privacy is respected, it may be
forfeited where one person injures another.[24]

H.L.A. Hart refutes Devlin's suggestion that immorality, even if private, can be likened to
treason, against which it is permissible for society to take steps to preserve itself.[25] Hart
sees Devlin's view of people living in a single society as having common moral
foundation as overly simplistic. To Hart, societies have always been diverse. With the
rise of democracy, society could more accurately be called a collectivity of ideas and
attitudes, an assemblage or gathering of people who live together and work together
and govern themselves collectively in spite of the great diversities that divide them.
[26]
 Hart places emphasis on the right to privacy and freedom of action which ought to be
protected and should be interfered with only when private behavior ceases to be
private and becomes a menace to the public or to some part of the public.[27] One may
deduce from Hart's arguments that private consensual moral offenses should not be
legally prohibited because of the difficulties in enforcing such laws and the near
impossibility of detecting most offenses without an unconscionable invasion of privacy.
[28]

Hart criticizes attempts to impose the morality of the majority on a few. Justification for
punishment especially when applied to conduct not harmful to others represents a
value to be pursued at the cost of human suffering, the bare expression of moral
condemnation and treats the infliction of suffering as a uniquely appropriate mode of
expression. The idea that we may punish offenders against a moral code not to prevent
harm but simply as a means of venting or expressing moral condemnation is
uncomfortably close to human sacrifice as a form of religious worship.[29] To Hart, Vox
populi does not necessarily translate to Vox Dei.[30] Hart particularly singles out laws
aimed at enforcing sexual morality as oppressive --- "Laws designed to enforce sexual
morality to the extent that they interfere with certain forms of sexual expression and
restrict the sexual outlet that may be available, impose an acute form of suffering upon
those who are thus deprived of the only outlet available to them." Such laws and the
coercive measures that may be used to enforce them "may create misery of quite a
special degree. All restraints then must be justified by strong reasons."[31] Quoting John
Stuart Mill in his essay On Liberty , Hart expounds --- The only purpose for which power
can rightfully be exercised over any member of a civilized community against his will is
to prevent harm to others. His own good, either physical or moral is not a sufficient
warrant. He cannot be rightfully compelled to do or forbear because it will be better for
him to do so, because it will make him happier, because in the opinion of others, to do
so would be wise or right. [32]

Arriving at an Acceptable Middle Ground

But Hart is not without his critics, among them being Robert P. George. George
acknowledges that laws per se cannot make men moral; laws can only succeed in
commanding outward conformity to moral rules but cannot compel internal acts of
reason. Such an instance would be a law requiring all people to contribute to the
charities. While fear of sanctions would force one to make such contribution, the same
does not necessarily make him charitable. George, however, contends that laws can be
utilized to make men moral by: (1) preventing further self-corruption, (2) preventing bad
example (3) helping to preserve the moral ecology and (4) educating people about right
and wrong.[33] Thus, to him, moral laws punishing victimless sexual immoralities, for
example, proceed from the conviction that the acts are truly wrong and that they
damage the characters of the people who perform them, block the path to virtue, and in
specific ways offend against the common good.[34] George cites Aristotle who, centuries
ago, had long anticipated but criticized and firmly rejected the doctrine of mainstream
contemporary liberalism, namely the belief that the law should merely be a guarantor of
men's rights against another --- instead of being, as it should be, a rule of life such as will
make the members of the polis good and just.

Robert George submits, and I agree, that while morality cannot be legislated, laws can
help make men moral by creating a "moral ecology" and profoundly affecting notions in
society about what is morally acceptable, forbidden and required. People shape their
own lives and often treat others very differently in the light of these notions. The point
is, a good moral ecology benefits people by encouraging and supporting their efforts to
be good, a bad moral ecology harms people by offering them opportunities and
inducements to do things that are wicked. [35] To illustrate, the decision of US Supreme
Court in Brown vs. Topeka Board of Education in 1954 and of the Civil Rights Act of 1964
has primarily been responsible in changing society's perception on forced segregation or
interracial marriage.

It might then be deduced that moral laws are justified when they (1) seek to preserve
the moral value upheld by society and (2) when the morality enforced in a certain case,
is true and correct. It is within these standards that the provision against immorality in
the Administrative Code must be examined to the extent that such standards can apply
to the facts and circumstances in the instant case before the Court. As a rule then, moral
laws are justified only to the extent that they directly or indirectly serve to protect the
interests of the larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the purpose for which they
are enacted, would a departure be justified.

The Morality of Marriage

Marriage is one area where law and morality closely intersect. The act of
respondent Escritor of cohabiting with Quilapio, a married man, can only be called
immoral in the sense that it defies and transgresses the institution of marriage. Society
having a deep interest in the preservation of marriage, adultery is a matter of public, not
merely private, concern, that cannot readily be ignored.[36] This deep-seated interest is
apparent in our Civil Code so replete with rules as in defining the parties' legal capacity
to marry, in laying down the essential requisites of the union, in regulating the rights
and duties of the spouses, even their property relations, and in protecting the rights of
children. Marriage has acquired a legal definition as early as the 12th century that has
since grown towards a cherished institution with Gregorian Reform of the 11th and
12th centuries.

With the separation of the Church and State, marriage has retained its status as a legally
protected viculum because it is perceived to be imbued with societal interest as a
foundation of the family and the basic unit of society. While Islamic states recognize
polygamous marriages and, in Western countries, divorce is acceptable, in the
Philippines, however, absolute monogamy is still the order of the day. Societal interest
in monogamous unions is grounded on the belief that the cohesiveness of the family is
better protected, and children, prized for their role in the perpetuation of the future of
the community, are better reared when spouses remain together. These societal
interests are embodied in moral laws geared towards protecting the monogamous
nature of Philippine marriages.[37] But I do not endeavor to examine whether Philippine
society is correct in viewing monogamy as the better means for the protection of
societal interest on the family but I do would focus myself on, given the facts of the
case, whether or not societal interest is rightly served.

Thus, I, in conscience, would take exception to the 1975 case of De Dios  vs. Alejo.
[38]
 In De Dios, respondents Elias Marfil and Julieta O. Alejo, deputy sheriff and
stenographer of the then Court of First Instance of Rizal, respectively, were
administratively found guilty of immorality for living together despite Marfil's prior
existing marriage with another woman. Never mind if Marfil exerted valiant efforts to
save his marriage by enduring the recriminations, unhappiness and extreme
incompatibility he had with his wife. Never mind if notwithstanding his efforts, his wife
abandoned him and their four children to live with another man. Never mind if Alejo
took on the duties and responsibilities of being the mother to his children, rearing them
as though they were her very own long after their natural mother had left them. Never
mind if the children had, in fact, regarded her as their very own mother. Never mind if
she was a good wife to the man she was living with, fulfilling the wifely duties long after
the legal wife had abdicated them. Never mind if in all respects, they had become a
family. Did not the Court in adjudging them guilty of immorality and in ordering them to
put an end to their relationship, destroy a de facto family? Did not its narrow-minded
view of marriage as a contractual transaction and its exacting application of the
standards of monogamy, in effect, defeat the very moral purpose for which the law was
put into place?

Are we not sacrificing the substance of marriage --- that is a union of man and woman in
a genuine, loving and respectful relationship and, in effect, the substance of a family, for
a mere shell of intricate legality? Lest I be misunderstood, I am not advocating for a
departure from the elevated concept marriage as being a legally protected union. I
merely express concern that a blanket application of moral laws affecting marriage,
without regard to the peculiarities of every case, might defeat the very purpose for
which those laws are put into place.
Thus, I vote for the remand of the case to allow a thorough examination on whether a
strict application of the provision in the administrative code prohibiting immorality,
under the facts and circumstances of the case, would defeat the very purpose which it
seeks to serve. A remand would allow the parties to assess the factual issues, to adduce
further evidence, if necessary, and to make out their case towards this direction.

[1]
 Book V, Title I, Chapter VI, Section 46(b) (5) of the Revised Administrative Code
provides; viz.:

Sec. 46. Discipline: General Provisions -- (a) No officer or employee in the Civil Service
shall be suspended or dismissed except for cause as provided by law and after due
process.

(b) The following shall be grounds for disciplinary action:

xxx

(5) disgraceful and immoral conduct

[2]

DECLARATION PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as
my mate in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public and that it is because of having
been unable to do so that I therefore make this public declaration pledging faithfulness
in this marital relationship.

I recognize this relationship as a binding tie before Jehovah God and before all persons
to be held to and honored in full accord with the principles of God's Word. I will
continue to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in the circumstances makes this possible, I
promise to legalize this union.

Signed this 28th day of July, 1991.

[3]
 Lawrence, et al. v. Texas, US Supreme Court, 26 June 2003.

[4]
 Louis Altman, Calimann on Unfair Competition, Trademarks and Monopolies, (4th
Edition) Current through the Spring 2003 Supplement

[5]
 Ibid.

[6]
 Ibid.

[7]
 Norman St. John-Stevas, "Law and Morals," Hawthorne Books Publishers, N.Y.
st
1  Edition, October 1964, at p. 18.
[8]
 Calvin Woodard, Symposium: The Moral Lawyer. Thoughts on the Interplay Between
Morality and Law in Modern Legal Thought, Notre Dame Law Review 1989.

[9]
 Ibid.

[10]
 Ibid.

[11]
 Ibid.

[12]
 Ibid.

[13]
 Ibid.

[14]
 Ibid.

[15]
 Ibid.

[16]
 Jeanne L. Schroeder and David Gray Carlson, Review Essay: Kenneth Starr:
Diabolically Evil?, California Law Review, March 2000.

[17]
 Gerard Bradley, "Plural Perfectionism: A Review Essay of Making Men Moral , Notre
Dame Law Review, 1996.

[18]
 381 US 479 (1965).

[19]
 Robert P. George, Making Men Moral , Civil Liberties and Public Morality, Clarendon
Press, Oxford, 1993.

[20]
 Norman St. John-Stevas, supra.,  at p. 27.

[21]
 Gerard V. Bradley, supra.

[22]
 Burton M. Leiser, Liberty, Justice and Morals: Contemporary Value Conflicts,
MacMillan Publishing Co., Inc., New York, 1973, at p. 12.

[23]
 Ibid., p. 25.

[24]
 Ibid.,p. 13.

[25]
 Ibid.

[26]
 Ibid., pp. 28-32.

[27]
 Ibid.

[28]
 Ibid.

[29]
 Hart, infra, at 65-66.
[30]
 Hart, infra, at p. 79.

[31]
 Leiser, supra.,at p. 15.

[32]
 H.L.A. Hart, Law, Liberty and Morality, Stanford University Press, Stanford California,
1963, pp. 4-5.

[33]
 Robert P. George, supra., at p. 1.

[34]
 Bradley, supra.

[35]
 Bradley, supra.

[36]
 Leiser, supra., at p. 12.

[37]
 Crimes against chastity under our Revised Penal Code include adultery, concubinage,
and bigamy. Under our Civil Code, divorce is not allowed. Annulment of marriage, which
capacitates a person to contract a subsequent marriage, is granted only in very limited
instances.

[38]
 68 SCRA 354.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

While I commend the thoroughly researched and well-written ponencia of our

esteemed colleague, Justice Reynato Puno, I am unable to agree with the decision of the
majority to remand this case to the Office of the Court Administrator for reception of
further evidence. Indeed, my reading of the records of the case at bar revealed that
there are no more factual issues to be resolved here. Respondent Soledad S. Escritor has
admitted on more than one occasion her cohabitation with Luciano D. Quilapio, Jr., a
married man. However, the distinguished ponente  has put forth the need to allow
respondent to buttress the sincerity of her claimed religious belief and practice, and to
require the Solicitor General to meet the test of compelling state interest to override
respondent's religious belief and practice. These, to my mind, are unnecessary.
Respondent's conduct need not only be measured against her religious beliefs. The
same may even constitute offenses under our criminal statutes. Moreover, the
definition of disgraceful and immoral conduct under our civil service law is simple.
Therefore, I submit, that there is extant in the records of this case sufficient bases to
hold respondent administratively liable.
The issue in this case is simple. What is the meaning or standard of "disgraceful and
immoral conduct" to be applied by the Supreme Court in disciplinary cases involving
court personnel?

The degree of morality required of every employee or official in the public service has
been consistently high. The rules are particularly strict when the respondent is a Judge
or a court employee.[1] Even where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no untoward conduct involving
public officers should be left without proper and commensurate sanction.[2] The
compassion is shown through relatively light penalties. Never, however, has this Court
justified, condoned, or blessed the continuation of an adulterous or illicit relationship
such as the one in this case, after the same has been brought to its attention.

Is it time to adopt a more liberal approach, a more "modern" view and a more
permissive pragmatism which allow adulterous or illicit relations to continue provided
the job performance of the court employee concerned is not affected and the place and
order in the workplace are not compromised? When does private morality involving a
court employee become a matter of public concern?

The Civil Service Law punishes public officers and employees for disgraceful and immoral
conduct.[3] Whether an act is immoral within the meaning of the statute is not to be
determined by respondent's concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact perform, the act
which it condemns.[4]

The ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards. For those in the service of the Government, provisions of law and
court precedents also have to be considered. The task is elusive.

The layman's definition of what is "moral" pertains to excellence of character or

disposition. It relates to the distinction between right and wrong; virtue and vice; ethical
praise or blame. Moral law refers to the body of requirements in conformity to which
virtuous action consists. Applied to persons, it is conformity to the rules of morality,
being virtuous with regards to moral conduct.[5]

That which is not consistent with or not conforming to moral law, opposed to or
violating morality, and now, more often, morally evil or impure, is immoral. Immoral is
the state of not being virtuous with regard to sexual conduct.[6]

The term begs the definition. Hence, anything contrary to the standards of moral
conduct is immoral. A grossly immoral act must be so corrupt and false as to constitute
a criminal act or so unprincipled as to be reprehensible to a high degree.[7]

Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the
fringes or boundary limits of what is morally acceptable and what is unacceptably
wrong, the concept of immorality tends to shift according to circumstances of time,
person, and place. When a case involving the concept of immorality comes to court, the
applicable provisions of law and jurisprudence take center stage.
Those who choose to tolerate the situation where a man and a woman separated from
their legitimate spouses decide to live together in an "ideal" and yet unlawful union
state - or more specifically, those who argue that respondent's cohabiting with a man
married to another woman is not something which is willful, flagrant, or shameless -
show a moral indifference to the opinion of the good and respectable members of the
community in a manner prejudicial to the public service.

Insofar as concepts of morality are concerned, various individuals or cultures may

indeed differ. In certain countries, a woman who does not cover herself with
a burka from head to foot may be arrested for immoral behavior. In other countries,
near nudity in beaches passes by unnoticed. In the present case, the perceived fixation
of our society over sex is criticized. The lesser degree of condemnation on the sins of
laziness, gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory.

The issue in this case is legal and not philosophical. It is a limited one. Is respondent
Soledad S. Escritor guilty of "disgraceful and immoral" conduct in the context of the Civil
Service Law? Are there any sanctions that must be imposed?

We cannot overlook the fact that respondent Escritor would have been convicted for a
criminal offense if the offended party had been inclined and justified to prosecute her
prior to his death in 1998. Even now, she is a co-principal in the crime of concubinage. A
married woman who has sexual intercourse with a man not her husband, and the man
who has carnal knowledge of her knowing her to be married, commit the crime of
adultery.[8] Abandonment by the legal husband without justification does not exculpate
the offender; it merely mitigates the penalty.

The concubine with whom a married man cohabits suffers the penalty of destierro.[9] It is
true that criminal proceedings cannot be instituted against persons charged with
adultery or concubinage except upon complaint of the offended party.[10] This does not
mean that no actionable offense has been committed if the offended party does not
press charges. It simply cannot be prosecuted. The conduct is not thereby approved,
endorsed or commended. It is merely tolerated.

The inescapable fact in this case is that acts defined as criminal under penal law have
been committed.

There are experts in Criminal Law who believe that the codal provisions on adultery and
concubinage are terribly outmoded and should be drastically revised. However, the task
of amendment or revision belongs to Congress, and not to the Supreme Court.

Our existing rule is that an act so corrupt or false as to constitute a criminal act is
"grossly immoral."[11] It is not merely "immoral." Respondent now asks the Court to go
all the way to the opposite extreme and condone her illicit relations with not even an
admonition or a slight tap on the wrist.

I do not think the Court is ready to render a precedent-setting decision to the effect
that, under exceptional circumstances, employees of the judiciary may live in a
relationship of adultery or concubinage with no fear of any penalty or sanction and that
after being discovered and charged, they may continue the adulterous relationship until
death ends it. Indeed, the decision in this case is not limited to court interpreter
Soledad Escritor. It is not a pro hac vice ruling. It applies to court employees all over the
country and to everybody in the civil service. It is not a private ruling but one which is
public and far-reaching in its consequences.

In the 1975 case of De Dios v. Alejo,[12] the Court applied compassion and empathy but
nonetheless recognized as most important a mending of ways through a total breaking
of relationships. The facts in that case are strikingly similar to those in this case. Yet, the
Court required a high degree of morality even in the presence of apparently exculpating
circumstances. It was stated:
While it is permissible to view with human understanding and compassion a situation
like that in which respondents find themselves, the good of the service and the degree
of morality which every official and employee in the public service must observe, if
respect and confidence are to be maintained by the government in the enforcement of
the law, demand that no untoward conduct on his part, affecting morality, integrity and
efficiency, while holding office should be left without proper and commensurate
sanction, all attendant circumstances taken into account. In the instant case, We cannot
close our eyes to the important considerations that respondents have rendered
government service for more than thirty-three and twenty-five years, respectively, and
that there is no showing that they have ever been found guilty of any administrative
misconduct during all those periods. In the case of respondent Alejo, it seems rather
sadistic to make her suffer the extreme penalty of dismissal from the service after she
had taken care of her co-respondent's four children, giving them the needed love and
attention of a foster mother after they were completely abandoned by their errant and
unfaithful natural mother. Even respondent Marfil, if to a lesser degree, is deserving of
compassion. Most importantly, respondents have amply demonstrated that they
recognize their mistake and have, therefore, actually mended their ways by totally
breaking their relationship complained of, in order to conform with the imperatives of
public interest. (Emphasis supplied)
The standards for those in the judicial service are quite exacting.

The Court has ruled that in the case of public servants who are in the judiciary, their
conduct and behavior, from the presiding judge to the lowliest clerk, must not only be
characterized by propriety and decorum, but above all else, must be above suspicion.[13]

In Burgos v. Aquino,[14] it was ruled:

The Code of Judicial Ethics mandates that the conduct of court personnel must be free
from any whiff of impropriety, not only with respect to his duties in the judicial branch
but also to his behavior outside the court as a private individual. There is no dichotomy
of morality; a court employee is also judged by his private morals. These exacting
standards of morality and decency have been strictly adhered to and laid down by the
Court to those in the service of the judiciary. Respondent, as a court stenographer, did
not live up to her commitment to lead a moral life. Her act of maintaining relations with
Atty. Burgos speaks for itself.
Respondent Aquino was a court stenographer who was suspended for six months for
maintaining illicit relations with the husband of complainant Virginia E. Burgos. The
Court therein stated that a second offense shall result in dismissal.

We should not lose sight of the fact that the judicial system over which it presides is
essentially composed of human beings who, as such, are naturally prey to weakness and
prone to errors. Nonetheless, in Ecube-Badel v. Badel,[15] we imposed on respondent a
suspension for six months and one day to one year with warning of dismissal should the
illicit relations be repeated or continued.

In Nalupta v. Tapec,[16] a deputy sheriff was suspended, also for six months, for having
illicit relations with a certain Cristian Dalida who begot a son by him. His wife
complained and neighbors confirmed that Tapec was frequently seen leaving the house
of Consolacion Inocencio in the morning and returning to it in the afternoon. Tapec and
Inocencio begot two children. Consistently with the other cases, we imposed the
penalty of suspension for the first offense with the graver penalty of dismissal for a
second offense.

The earlier case of Aquino v. Navarro[17] involved an officer in the Ministry of Education,

Culture and Sports who was abandoned by her husband a year after their marriage and
who lived alone for eighteen years with their child. Pretending that she sincerely
believed her husband to have died, she entered into a marital relationship with Gonzalo
Aquino and had children by him in 1968 and 1969. Eighteen days before their third child
was born on May 25, 1975, the two decided to get married. Notwithstanding the illicit
relationship which blossomed into a bigamous marriage, the full force of the law was
not applied on her, "considering the exceptional circumstances that befell her in her
quest for a better life." Still, a penalty of six months suspension was imposed with a
warning that "any moral relapse on her part will be severely dealt with."

Times are changing. Illicit sex is now looked upon more kindly. However, we should not
completely disregard or overlook a relationship of adultery or concubinage involving a
court employee and not order it to be terminated. It should not ignore what people will
say about our moral standards and how a permissive approach will be used by other
court employees to freely engage in similarly illicit relationship with no fear of
disciplinary punishment.

As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing

marriages with their respective legitimate spouses when they decided to live together.
To give an aura of regularity and respectability to what was undeniably an adulterous
and, therefore, immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on July 28, 1991 the
"Declaration of Pledging Faithfulness" to make their relationship what they alleged it
would be - a binding tie before Jehovah God.

In this case, respondent is charged not as a Jehovah's Witness but in her capacity as a
court employee. It is contended that respected elders of the Jehovah's Witnesses
sanction "an informal conjugal relationship" between respondent and her marital
partner for more than two decades, provided it is characterized by faithfulness and
devotion to one another. However, the "informal conjugal relationship" is not between
two single and otherwise eligible persons where all that is missing is a valid wedding
ceremony. The two persons who started to live together in an ostensible marital
relationship are married to other persons.

We must be concerned not with the dogmas or rules of any church or religious sect but
with the legal effects under the Civil Service Law of an illicit or adulterous relationship
characterized by the facts of this case.

There is no conflict in this case between the dogmas or doctrines of the Roman Catholic
Church and those of the Jehovah's Witnesses or any other church or denomination. The
perceived conflict is non-existing and irrelevant.

The issue is legal and not religious. The terms "disgraceful" and "immoral" may be
religious concepts, but we are concerned with conduct which under the law and
jurisprudence is proscribed and, if perpetrated, how it should be punished.

Respondent cannot legally justify her conduct by showing that it was morally right by
the standards of the congregation to which she belongs. Her defense of freedom of
religion is unavailing. Her relationship with Mr. Quilapio is illicit and immoral, both
under the Revised Administrative Code[18] and the Revised Penal Code,
[19]
 notwithstanding the supposed imprimatur  given to them by their religion.

The peculiar religious standards alleged to be those of the sect to which respondent
belongs can not shield her from the effects of the law. Neither can her illicit relationship
be condoned on the basis of a written agreement approved by their religious
community. To condone what is inherently wrong in the face of the standards set by law
is to render nugatory the safeguards set to protect the civil service and, in this case, the
judiciary.

The Court cannot be the instrument by which one group of people is exempted from the
effects of these laws just because they belong to a particular religion. Moreover, it is the
sworn mandate of the Court to supervise the conduct of an employee of the judiciary,
and it must do so with an even hand regardless of her religious affiliation.

I find that respondent's "Declaration of Pledging Faithfulness" does nothing for her
insofar as this administrative matter is concerned, for written therein are admissions
regarding the legal impediments to her marrying Quilapio. In the said document, she
even pledged to seek all avenues to obtain legal recognition by civil authorities of her
union with Quilapio.[20] However, the record is silent as to any effort on respondent's
part to effect this covenant.

The evidence shows that respondent repeatedly admitted the existence of the legal
infirmities that plague her relationship with Quilapio.[21] As a court interpreter, she is an
integral member of the judiciary and her service as such is crucial to the administration
of justice. Her acts and omissions constitute a possible violation of the law - the very
same law that she is sworn to uphold as an employee of the judiciary. How can she work
under the pretense of being a contributing force to the judicial system if she herself is
committing acts that may constitute breaking the law?

Respondent invokes her constitutional right to religious freedom. The separation of

church and state has been inviolable in this jurisdiction for a century. However, the
doctrine is not involved in this case.[22] Furthermore, the legislature made cohabitation
with a woman who is not one's wife a crime through the enactment of the Revised
Penal Code.[23] The legislative power has also seen fit to enact the Civil Service Law and
has given said law general application.

The argument that a marital relationship is the concern of religious authorities and not
the State has no basis.

In Reynolds v. United States,[24] the U.S. Supreme Court stated:

It is impossible to believe that the constitutional guaranty of religious freedom was
intended to prohibit legislation in respect to this most important feature of social life.
Marriage, while from its very nature a sacred obligation, is, nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society may be
said to be built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal.
The strengthening of marriage ties and the concomitant hostility to adulterous or illicit
marital relations is a primary governmental concern. It has nothing to do with the
particular religious affiliations of those affected by legislation in this field.

The relations, duties, obligations and consequences of marriage are important to the
morals and civilization of a people and to the peace and welfare of society.[25] Any
attempt to inject freedom of religion in an effort to exempt oneself from the Civil
Service rules relating to the sanctity of the marriage tie must fail.

The U.S. Supreme Court in the above-cited case of Reynolds v. United States[26] upheld
federal legislation prohibiting bigamy and polygamy in territories of the United States,
more specifically Utah. Members of the Mormon Church asserted that the duty to
practice polygamy was an accepted doctrine of their church. In fact, Mormons had
trekked from the regular States of the Union to what was then a mere Territory in order
to practice their religious beliefs, among them polygamy. The Court declared that while
it protected religious belief and opinion, it did not deprive Congress of the power to
reach actions violative of social duties or subversive of good order. Polygamy was
outlawed even for Mormons who considered it a religious obligation.

We must not exempt illegal conduct or adulterous relations from governmental

regulation simply because their practitioners claim it is part of their free exercise of
religious profession and worship.

Indeed, the Court distinguishes between religious practices, including the seemingly
bizarre, which may not be regulated, and unacceptable religious conduct which should
be prevented despite claims that it forms part of religious freedom.

In Ebralinag v. Division Superintendent of Schools,[27] we validated the exemption of

Jehovah's Witnesses from coerced participation in flag ceremonies of public schools.
Following the ruling in West Virginia v. Barnette,[28] we declared that unity and loyalty,
the avowed objectives of flag ceremonies, cannot be attained through coercion.
Enforced unity and loyalty is not a good that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by prohibited means.

The exemption from participation in flag ceremonies cannot be applied to the tolerance
of adulterous relationships by court personnel in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of religious
profession.[29] In addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the judiciary.

Jurisprudence on immoral conduct of employees in the civil service has been consistent.
There is nothing in this case that warrants a departure from precedents. We must not
sanction or encourage illicit or adulterous relations among government employees.

Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovah's Witness.

Exemptions granted under our Muslim Laws to legitimate followers of Islam do not
apply to them.[30] The Court has no legislative power to place Jehovah's Witness in the
same legal category as Muslims.

In Bucatcat v. Bucatcat,[31] it was held that conduct such as that demonstrated by the
respondent is immoral and deserving of punishment. For such conduct, the respondent,
another court interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of integrity, uprightness and
honesty. Like any public servant, he must exhibit the highest sense of honesty and
integrity not only in the performance of his official duties but in his personal and private
dealings with other people, to preserve the court's good name and standing. It cannot
be overstressed that the image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court employees have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of courts of justice.
All those who work in the judiciary are bound by the most exacting standards of ethics
and morality to maintain the people's faith in the courts as dispensers of justice.
In Liguid v. Camano,[32] it was ruled:
Surely, respondent's behavior of living openly and scandalously for over two (2) decades
with a woman not his wife and siring a child by her is representative of the gross and
serious misconduct penalized by the ultimate penalty of dismissal under Section 22 (c),
Rule XIV of the Omnibus Rules Implementing Book IV of Executive Order No. 292
otherwise known as the Revised Administrative Code of 1987. As defined, misconduct is
a transgression of some established or definite rule of action, more particularly,
unlawful behavior or gross negligence by the public officer. Respondent's conduct is an
example of the kind of gross and flaunting misconduct that so quickly and surely
corrodes the respect for the courts without which government cannot continue and that
tears apart the bonds of our polity.
Earlier, in Navarro v. Navarro,[33] the penalty of suspension was imposed on a court
employee for maintaining illicit relations with a woman not his wife, thus:
Time and again we have stressed adherence to the principle that public office is a public
trust. All government officials and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. This constitutional mandate should always
be in the minds of all public servants to guide them in their actions during their entire
tenure in the government service. The good of the service and the degree of morality
which every official and employee in the public service must observe, if respect and
confidence are to be maintained by the Government in the enforcement of the law,
demand that no untoward conduct on his part, affecting morality, integrity and
efficiency while holding office should be left without proper and commensurate
sanction, all attendant circumstances taken into account.
The exacting standards of ethics and morality imposed upon court judges and court
employees are required to maintain the people's faith in the courts as dispensers of
justice, and whose image is mirrored by their actuations. As the Court eloquently stated
through Madame Justice Cecilia Muñoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the conduct, official or
otherwise, of the men and woman who work thereat, from the judge to the least and
lowest of its personnel - hence, it becomes the imperative sacred duty of each and
everyone in the court to maintain its good name and standing as a true temple of
justice.[34]
The high degree of moral uprightness that is demanded of employees of the
government entails many sacrifices that are peculiar to the civil service. By aspiring to
these positions, government employees are deemed to have submitted themselves to
greater scrutiny of their conduct, all in the pursuit of a professional civil service. The
Court has repeatedly applied these principles in analogous cases.[35]

Immorality is punishable by suspension of six (6) months and one day to one (1) year for
the first offense and dismissal for the second offense.[36] Considering that respondent's
misconduct is in the nature of a continuing offense, it must be treated as a first offense,
and her continued cohabitation with Luciano E. Quilapio, Jr. must be deemed a second
offense, which will warrant the penalty of dismissal.

ACCORDINGLY, I vote that respondent Soledad S. Escritor be found GUILTY of

immorality and disgraceful conduct and that she be SUSPENDED for a period of Six (6)
months and One day without pay, with a warning that the continuance of her illicit
cohabitation with Luciano D. Quilapio, Jr. shall be deemed a second offense which shall
warrant the imposition of the appropriate penalty.

[1]
 Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235 SCRA 290.

[2]
 De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.

[3]
 Revised Administrative Code, Book V, Title I, Subtitle A, Section 46 (b) (5).

[4]
 Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).

[5]
 Oxford Universal Dictionary, Vol. 2, p. 1280.

[6]
 Id., p. 961.

[7]
 Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva, 116 Phil. 1208
(1962); Reyes v. Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668.

[8]
 Revised Penal Code, Art. 333.

[9]
 Revised Penal Code, Art. 334.
[10]
 Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule 110, Section 5.

[11]
 Reyes v. Wong, supra.

[12]
 Supra.

[13]
 Lacuata v. Bautista, supra.

[14]
 Supra.

[15]
 339 Phil. 510 (1997).

[16]
 A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.

[17]
 220 Phil. 49 (1985).

[18]
 E.O. 292, Sec. 46 (5).

[19]
 Art. 334.

[20]
 Rollo, Exhibits "1" and "2" , pp. 14-15.

[21]
 TSN, October 12, 2000, pp. 11-15.

[22]
 Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.

[23]
 Art. 334.

[24]
 98 U.S. 145; 25 L.Ed. 244 (1879).

[25]
 Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.

[26]
 Supra.

[27]
 G.R. No. 95770, 1 March 1993, 219 SCRA 256.

[28]
 319 U.S. 624 (1943).

[29]
 American Bible Society v. City of Manila, 101 Phil. 386 (1957).

[30]
 Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No. MTJ-92-691, 10
September 1993, 226 SCRA 193.

[31]
 380 Phil. 555 (2000).

[32]
 A.M. No. RTJ-99-1509, 8 August 2002.

[33]
 A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.
[34]
 Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9 January 1992, 205 SCRA
21 and Sy v. Cruz, 321 Phil. 231 [1995].

[35]
 Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001; Alday v. Cruz, A.M. No.
RTJ-00-1530, 14 March 2001, 354 SCRA 322.

[36]
 Civil Service Rules, Rule XIV, Section 23 (o).

DISSENTING OPINION

CARPIO, J.:

I dissent from the majority opinion remanding this case for further proceedings. The
ostensible purpose of the remand is to allow respondent Soledad S. Escritor "to buttress
the sincerity of her claimed religious belief" and for the Solicitor General "to meet the
test of `compelling state interest' to override respondent's religious belief."

However, Escritor expressly admits that she is cohabiting with Luciano D. Quilapio, Jr.

who is married to another woman. Escritor's conduct is that of a concubine under
Article 334 of the Revised Penal Code outlawing concubinage. Escritor may now be
subjected to disciplinary sanction for conduct prejudicial to the best interest of the
service. Escritor's religious belief, no matter how sincere, cannot exempt her from
Article 334 of the Revised Penal Code declaring concubinage a criminal act. Sincerity or
insincerity in religious beliefs is not a test in allowing or disallowing exemption from a
harmful conduct that the State has a right to suppress.

A remand of this case for further proceedings is clearly unnecessary. Escritor's unlawful

cohabitation with Quilapio is an admitted fact regardless of the outcome of the remand
of this case. Escritor's cohabitation with Quilapio constitutes concubinage which is a
crime under our laws.

The issue then would inevitably turn on whether Escritor, or any citizen for that matter,
may invoke religious freedom to justify conduct that patently violates our criminal
statutes. Such conduct in the present case is concubinage. However, under the same
claim of religious freedom, such conduct may be bigamy, sacrifice of infants or
infanticide, sacrifice of virgins or murder, or use and possession of prohibited drugs as
part of religious rituals. This is the issue that I address in this dissent, after showing
that Escritor's conduct is neither disgraceful nor immoral.

Escritor and Quilapio have lived together since 1980. They have a 21-year old son whom
they raised together. Escritor was previously married but her husband left her in 1979
for another woman. Escritor's husband died in 1998. Escritor joined the judiciary only in
1999. On the other hand, Quilapio and his legal wife were already separated in fact even
before Escritor and Quilapio began living together. Quilapio's wife has not filed any
complaint against either Quilapio or Escritor.

On 22 August 2000, complainant Alejandro Estrada filed this complaint for disgraceful

and immoral conduct against Escritor for cohabiting with a man who is not her husband.
Complainant, who is not a court employee, admits not knowing Escritor personally.

I do not find Escritor liable for "disgraceful and immoral conduct." The Jehovah's

Witnesses, the church to which Escritor and Quilapio belong, formally approved[1] in
1991 their relationship as husband and wife after a long and careful consideration by
church elders. The members of the Jehovah's Witnesses have fully accepted
the Escritor and Quilapio couple as part of their Christian community. In their religious
and social community, Escritor and Quilapio are seen and treated just like any other
husband and wife. The couple's cohabitation has not created any scandal, moral outrage
or malicious gossip in their congregation or even in the community where they live and
work. On the contrary, those who come to know of the couple's predicament in life
express their sincerest sympathy and compassion.

When the Catholic Church annuls a marriage, and the parties remarry in church with
different partners even without a court annulment of their marriage, do we condemn
their second marriages as "disgraceful and immoral conduct"? When a Muslim man lives
with more than one wife, do we declare his relationship with his other wives as
"disgraceful and immoral"? In Sulu Islamic Association of Masjid Lambayong v. Malik,
[2]
 this Court ruled that a Muslim judge who takes a second wife is not guilty of
disgraceful and immoral conduct because such practice is "not `immoral' by Muslim
standards." The Muslim judge is not also criminally liable for bigamy because Shari'a law
allows a Muslim to have more than one wife.

In De Dios v. Alejo,[3] the Court quoted with approval a decision of the Board of Civil
Service[4] dismissing an immorality charge against a clerk who, in the words of the Board,
"does not exercise a moral influence in the community" and whose conduct "has not
jeopardized the honor of any third person." The Board explained that those most
concerned with the relationship - the unfaithful legal wife who no longer lived with
respondent, the woman living with respondent and the four children, have not "voiced
an objection to the situation as it existed for ten (10) years." The Board added that
technically, the clerk was "guilty of immorality, but actually this can hardly be
considered as notoriously disgraceful immoral conduct."

The term "disgraceful and immoral conduct" is not necessarily a single, ironclad
universal code applicable to all situations, ethnic groups and religions. This Court has
recognized a "Muslim standards" on disgraceful and immoral conduct with respect to
multiple marriages by Muslims. We cannot reject a "Jehovah's Witnesses standards" on
the same matter without violating the equal protection clause,[5] the free exercise of
religion,[6] and the separation of Church and State provision[7] of the Constitution.

In disgraceful and immoral conduct, the conduct must not only be immoral, it must also
be disgraceful. Immoral conduct means conduct that is willful, flagrant or shameless,
and which shows a moral indifference to the  opinion of the good and respectable
members of the community.[8] Disgraceful conduct means conduct that is ignominious,
shameful, and dishonorable.[9] Judge Bonifacio Maceda, whom the Court assigned to
investigate the administrative charge, did not find the relationship between Escritor and
Quilapio disgraceful and immoral in view of the acceptance of the relationship by
members of the Jehovah's Witnesses.[10] Even the complainant admits that Escritor is a
"decent woman."[11] Indeed, no one has testified that Escritor's relationship with
Quilapio is ignominious, shameful, or dishonorable conduct. Not a single witness who
qualifies as a "good and respectable member of the community" has testified
that Escritor's conduct is willful, flagrant and shameless.

However, while Escritor is not guilty of disgraceful and immoral conduct, her

cohabitation with the legally married Quilapio, a fact  Escritor  readily
admits, constitutes conduct prejudicial to the best interest of the service. Quilapio,
whose marriage to another woman still subsists, is liable for concubinage under Article
334 of the Revised Penal Code for cohabiting with Escritor. There is no showing that
Quilapio's wife has consented to Quilapio's cohabitation with Escritor. In concubinage,
the concubine is a necessary co-accused of the offending spouse.[12] The concubine is
punished with destierro. While no one can criminally prosecute Quilapio
and Escritor without the complaint of Quilapio's legal wife,[13] still this Court cannot
countenance such unlawful conduct by a court employee. In conduct prejudicial to the
best interest of the service, the immorality of the conduct is not in issue. What is in issue
is the adverse effect of the conduct on the efficiency, integrity and credibility of the civil
service, and in the case of the judiciary, its impact on the administration of justice.

The Court cannot simply turn a blind eye to conduct of a court employee that, by the
employee's own admission, violates our criminal statutes. Such conduct is prejudicial to
the best interest of the administration of justice. Court employees, from the highest
magistrate to the lowliest clerk, are expected to abide scrupulously with the law. They
are held to a higher standard since they are part of the judicial machinery that dispenses
justice. The courts of justice cannot harbor those who openly and knowingly commit a
crime. Courts of justice would lose their moral authority and credibility if they condone
violators of the law. They would be remiss in their solemn duty of upholding the law if
they continue to employ those who admit running afoul with our criminal statutes.
Thus, there exists a compelling state interest to hold Escritor to the same standards
required of every court employee. If unsanctioned, Escritor's unlawful conduct would
certainly impair the integrity and credibility of the judiciary.

Unlike in Sulu Islamic Association of Masjid Lambayong v. Malik,[14] no law validates the
cohabitation of Escritor with Quilapio. For the Court to provide a safe haven
to Escritor despite her admission of cohabitation with Quilapio would undermine the
integrity and capacity of this Court to dispense justice equally and fairly. The Jehovah's
Witnesses cannot declare Escritor's cohabitation with Quilapio as lawful, although it can
declare such cohabitation as compatible with its religious beliefs. The Court cannot
penalize Escritor's cohabitation as immoral in view of the freedom of religion and the
separation of Church and State. However, on the same principle of separation of Church
and State, the Court can penalize Escritor's cohabitation as conduct prejudicial to the
best interest of the service.
Thomas Jefferson, who championed[15] the free exercise of religion and non-
establishment clauses in the U.S. Constitution, from which we adopted our own
counterpart provisions, wrote to the Baptists in 1802 when he was President:
Believing with you that religion is a matter which lies solely between man and his God,
that he owes account to none other for his faith and worship, that the legislative
powers of government reach actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American people which declared that their
legislature should "make no law respecting an establishment of religion, or prohibiting
the free exercise thereof," thus building a wall of separation between Church and
State. Adhering to this expression of the supreme will of the nation in behalf of the
rights of conscience, I shall see with sincere satisfaction the progress of those
sentiments which tend to restore to man all his natural rights, convinced he has no
natural right in opposition to his social duties.[16] (Emphasis supplied)
In the landmark case of Reynolds v. United States,[17] the U.S. Supreme Court stated that
Jefferson's explanation is "almost an authoritative declaration of the scope and effect"
of the two constitutional clauses. The legislature has no power to regulate mere
religious belief or opinion. The legislature, however, may regulate actions or conduct,
even though religiously motivated, that violate the public order. The legislature's power
to outlaw concubinage, bigamy, polygamy and other conduct harmful to public order,
despite religious practices allowing such conduct, is well-settled in American
jurisprudence.[18]

In Employment Division v. Smith,[19] the U.S. Supreme Court rejected a claim by the

Native American Church  that smoking peyote,[20] classified as a "controlled substance,"
is protected by the free exercise of religion if done as part of a religious ceremony. The
U.S. Supreme Court clarified its earlier ruling in Wisconsin v. Yoder[21] by stating that it
had "never held that an individual's religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to regulate."

In Smith, the U.S. Supreme Court stated that the legislation prohibiting "controlled
substances" was a "neutral law that applied to all citizens" and did not single out the
Native American Church. Applying the "hybrid test," the U.S. Supreme Court held that
the free exercise of religion, standing alone without any other constitutional right being
invoked, cannot defeat the State's right to regulate the use of "controlled substances."

In the instant case, Escritor's sole constitutional justification in claiming exemption from

the prohibition on concubinage is her religious belief. Escritor does not claim that her
conduct is protected by any other guarantee under the Bill of Rights. Moreover, Article
334 of the Revised Penal Code, as originally enacted and as presently in force, does not
single out the Jehovah's Witnesses.

The power of the legislature to declare concubinage a crime against the State is
certainly beyond dispute. In effect, the legislature pronounces a socially reprehensible
act, which may or may not constitute an immoral act by certain religious standards, a
crime that the State has a right to suppress to protect public order and the general
welfare. The wall of separation between Church and State is no defense against the
State's police power over conduct constituting concubinage, bigamy or polygamy.

While Escritor's cohabitation with Quilapio conforms to the religious beliefs of the

Jehovah's Witnesses, the cohabitation violates Article 334 of the Revised Penal Code.
The State cannot interfere with the religious beliefs of the Jehovah's Witnesses, in the
same way that the Jehovah's Witnesses cannot interfere with the State's prohibition on
concubinage. The free exercise of religion protects practices based on religious grounds
provided such practices do not violate existing laws enacted in the reasonable exercise
of the State's police power.[22]

As early as in 1933 in People v. Bitdu,[23] this Court has ruled that religious practices

cannot override laws relating to public policy. In Bitdu, the accused, a Muslim woman
charged with bigamy, raised the defense that under Muslim religious customs she
validly divorced her first husband. At that time there was no statute recognizing
divorces and multiple marriages under Shari`a law. In rejecting this defense, this Court
quoted with approval the trial court's decision stating as follows:
x x x In the Philippine Islands we have a law (Act No. 2710) enumerating the causes and
conditions under which divorce may be secured and granted. Any divorce obtained in
the Philippine Islands for causes and under conditions other than those enumerated in
said law, would have no legal effect. The habits and customs of a people, the dogmas or
doctrines of a religion cannot be superior to or have precedence over laws relating to
public policy  x x x. (Emphasis supplied)
In Bitdu, the Solicitor-General urged this Court to uphold the validity of Muslim divorces,
citing the case of American Indians whose customs and practices on marriages and
divorces were, and still are, recognized by the United States Government. This Court
stated:
The decisions of American courts, cited by the Solicitor-General, sustaining the validity
of divorces granted to members of Indian tribes according to the customs and usages
thereof, are likewise not in point. The various Indian tribes in the United States were
dealt with by the Government of the United States as independent nations and treaties
were made with them.

As to the suggestion of the Solicitor-General that divorces among the Moros according
to their religious practices should be recognized as valid as a matter of public policy,
because in the contrary case there would be no end of criminal prosecutions, for
polygamy still abounds among them, and the remarriages of people divorced under the
Koran are the order of the day, that is a matter for the consideration of the
Legislature and the Governor-General. xxx. (Emphasis supplied)
The free exercise of religious belief is absolutely protected, but the freedom to act
according to such religious belief is subject to the police power of the State.[24] As held
in Reynolds v. United States[25]  which involved the practice of polygamy:
In our opinion, the statute immediately under consideration is within the legislative
power of Congress. It is constitutional and valid as prescribing a rule of action for all
those residing in the Territories, and in places over which the United States have
exclusive control. This being so, the only question which remains is, whether those who
make polygamy a part of their religion are excepted from the operation of the statute. If
they are, then those who do not make polygamy a part of their religious belief may be
found guilty and punished, while those who do, must be acquitted and go free. This
would be introducing a new element into criminal law. Laws are made for the
government of actions, and while they cannot interfere with mere religious belief and
opinions, they may with practices. Suppose one believed that human sacrifices were a
necessary part of religious worship, would it be seriously contended that the civil
government under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her dead
husband, would it be beyond the power of the civil government to prevent her carrying
her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the
United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this would
be to make the professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself. Government could
exist only in name under such circumstances. (Emphasis supplied)
Article 334 of the Revised Penal Code seeks to protect marriage as the foundation of the
family. The Constitution mandates that "[M]arriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the State." Article 334 of the
Revised Penal Code is a reasonable exercise of the State's police power to protect a
social institution that the Constitution declares as "inviolable." The religious teachings of
the Jehovah's Witnesses cannot amend or repeal Article 334 of the Revised Penal Code
on concubinage. Escritor clearly recognized this when she promised "to legalize"[26] in
the future her union with Quilapio.

Under the Revised Administrative Code of 1987, one of the grounds for disciplinary
action is "conduct prejudicial to the best interest of the service."[27] The penalty for a
first offense is suspension of six months and one day to one year. A second offense is
punishable with dismissal from the service.[28]

Escritor, however, deserves the same compassionate treatment accorded to a similarly

situated court employee in De Dios v. Alejo[29] if Escritor should end her unlawful
relationship with Quilapio. In De Dios, the Court, in deciding not to dismiss an employee
because he finally terminated his cohabitation with another woman, ruled:
In the instant case, We cannot close our eyes to the important considerations that
respondents have rendered government service for more than thirty-three and twenty-
five years, respectively, and that there is no showing that they have ever been found
guilty of any administrative misconduct during all those periods. In the case of
respondent Alejo, it seems rather sadistic to make her suffer the extreme penalty of
dismissal from the service after she had taken care of her co-respondent's four children,
giving them the needed love and attention of a foster mother after they were
completely abandoned by their errant and unfaithful natural mother. Even respondent
Marfil, if to a lesser degree, is deserving of compassion. Most importantly, respondents
have amply demonstrated that they recognize their mistake and have, therefore,
actually mended their ways by totally breaking their relationship complained of, in
order to conform with the imperatives of public interest. Objectively speaking, it cannot
be denied that such separation requires a great deal of sacrifice and entails personal
difficulties that cannot be easily ignored, thus making the resolution of respondents to
give up what is most meaningful to them worthy of some measures of liberality in the
imposition of the indispensable penalty which has to be meted to them. (Emphasis
supplied)
Therefore, any initial penalty imposed on Escritor should be lifted the moment she ends
her cohabitation with Quilapio.
Given the circumstances, it would seem unduly harsh to penalize Escritor for cohabiting
for the last 23 years with a man she believes is her husband and she knows is the father
of her son. No third party has claimed or suffered injury because of their cohabitation.
On the contrary, suspending or even dismissing her for her continued cohabitation
would only work hardship on her family. The remedy, however, lies not with this Court
but with the legislature. We can only call the legislature's attention to Escritor's failure
"to legalize" her union with Quilapio, a failure that deserves legislative inquiry and
probably remedy, even as we are bound to apply the law without fear or favor.

Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one
day without pay for conduct prejudicial to the best interest of the service. However, the
suspension shall be lifted immediately upon Escritor's manifestation to this Court that
she has ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent Escritor is
warned that her continued cohabitation with Quilapio, during or after her suspension
and while Quilapio's marriage with his legal wife still subsists, shall merit the penalty of
dismissal from the service.

[1]
 Escritor and Quilapio signed the Declaration Pledging Faithfulness with their church
leaders as witnesses. This document states:

Declaration of Pledging Faithfulness

I, Soledad S. Escritor, do here declare that I have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public Authorities and it is because of
having been unable to do so that I therefore make this public declaration pledging
faithfulness in this marital relationship.

I recognize this relationship as a binding tie before "Jehovah" God and before all persons
to be held to and honored in full accord with the principles of God's Word. I will
continue to seek the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances make (sic) this possible, I
promise to legalize this union.
[2]
 Adm. Matter No. MTJ-92-691, 10 September 1993, 226 SCRA 193.

[3]
 Adm. Matter No. P-137, 15 December 1975, 68 SCRA 354.

[4]
 Now the Civil Service Commission.

[5]
 Section 1, Article III of the 1987 Constitution provides: "No person shall be x x x denied
the equal protection of the laws."

[6]
 Section 5, Article III of the 1987 Constitution provides: "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 and political rights."

[7]
 Section 6, Article II of the 1987 Constitution provides: "The separation of Church and
State shall be inviolable."

[8]
 Arciga v. Maniwang, Admin. Case. No. 1608, 14 August 1981, 106 SCRA 594; Black's
Law Dictionary, p. 751, 6th Edition (1990).

[9]
 Black's Law Dictionary, p. 468, ibid.

[10]
 Report and Recommendation of Investigating Judge Bonifacio Maceda dated 1 July
2002.

[11]
 TSN, 12 October 2000, p. 7; Rollo, p. 23.

[12]
 Article 334 of the Revised Penal Code provides:
"The crimes of adultery and concubinage shall not be prosecuted except upon the
complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the
guilty parties if they are both alive, nor, in any case, if he shall have consented or
pardoned the offenders.

xxx."
[13]
 Ibid.

[14]
 See note 2. Article 180 of Presidential Decree No. 1083, otherwise known as the Code
of Muslim Personal Laws of the Philippines, provides: "The provisions of the Revised
Penal Code relative to the crime of bigamy shall not apply to a person married in
accordance with the provisions of this Code or, before its effectivity, under Muslim law."
In the United States, Native Americans are allowed to marry according to their customs
as long as they "are members of a tribe recognized and treated with as such by the
United States government." Thus, a Native American can enter into a polygamous
marriage if his tribe's customs allow it, even if it conflicts with state law (Hallowell v.
Commons, 210 F. 793, 8th Circuit, 1914). The various Indian tribes in the United States
were dealt with by the U.S. Government as independent nations and treaties were
made with them [People v. Bitdu, 58 Phil. 817 (1933)].

[15]
 While generally credited as the leading advocate of the First Amendment, Thomas
Jefferson was neither a framer nor signer of the U.S. Constitution. In Everson v. Board of
Education [330 U.S. 1 (1947)], the credit for authoring the First Amendment is given to
James Madison, an author of the Federalist Papers and known as the "Father of the
Constitution." In his dissenting opinion in Wallace v. Jaffree [472 U.S. 38 (1985)], Justice
William Rehnquist totally belittles Jefferson's role in the adoption of the First
Amendment. Rehnquist claims that Jefferson "would seem to any detached observer as
a less than ideal source of contemporary history as to the meaning of the Religion
Clause of the First Amendment." Rehnquist even criticizes Jefferson's "wall of
separation" as a "misleading metaphor."

[16]
 Quoted in Reynolds v. United States, infra, see note 16.

[17]
 98 U.S. 145.
[18]
 David Barton, The Image and the Reality: Thomas Jefferson and the First Amendment,
17 Notre Dame Journal of Law, Ethics and Public Policy 399 (2003).

[19]
 414 U.S. 872 (1990).

[20]
 A Mexican intoxicant made from the tops of a spineless, dome-shaped cactus native
to Mexico and the southwest United States.

[21]
 406 U.S. 205 (1972).

[22]
 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary (2003), Vol. 1, p. 321, citing Reynolds v. United States, 98 U.S. 145 (1878).

[23]
 58 Phil. 817 (1933).

[24]
 Ibid., p. 322, citing Cantwell v. Connecticut, 310 U.S. 296 (1944).

[25]
 See note 16.

[26]
 Declaration Pledging Faithfulness, see note 1.

[27]
 Section 46(27), Chapter 6, Book V of the 1987 Revised Administrative Code.

[28]
 Section 52(20) of Civil Service Commission Memorandum Circular No. 19-99.

[29]
 See note 3.

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 I.   Liberty of Abode and Travel (Sec. 6, Art. III)
i.   Rule and limitation
ii.  Marcos vs. Manglapus, supra.

258 Phil. 479

EN BANC

[ G.R. No. 88211, September 15, 1989 ]

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YNIGUEZ AND PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), REPRESENTED BY ITS PRESIDENT, CONRADO F. ESTRELLA, PETITIONERS,
VS. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDONEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, IN THEIR CAPACITY
AS SECRETARY OF FOREIGN AFFAIRS, EXECUTIVE SECRETARY, SECRETARY OF JUSTICE,
IMMIGRATION COMMISSIONER, SECRETARY OF NATIONAL DEFENSE AND CHIEF OF
STAFF, RESPECTIVELY, RESPONDENTS.

DECISION

CORTES, J.:

Before the Court is a controversy of grave national importance.  While ostensibly

only legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile.  In his
stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government.  Her ascension to and consolidation of power have not been
unchallenged.  The failed Manila Hotel coup in 1986 led by political leaders of Mr.
Marcos, the takeover of television station Channel 7 by rebel troops led by
Col. Canlas with the support of "Marcos loyalists" and the unsuccessful plot of the
Marcos spouses to surreptitiously return from Hawaii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar and
to the fanaticism and blind loyalty of their followers in the country.  The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency.  This did not,
however, stop bloody challenges to the government.  On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February Revolution, led a failed coup
that left scores of people, both combatants and civilians, dead.  There were several
other armed sorties of lesser significance, but the message they conveyed was the same
- a split in the ranks of the military establishment that threatened civilian supremacy
over the military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements in the military establishment and among rabid followers of Mr. Marcos.  There
were also the communist insurgency and the secessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists have
set up a parallel government of their own in the areas they effectively control while
the separatists are virtually free to move about in armed bands.  There has been no let
up in these groups' determination to wrest power from the government.  Not only
through resort to arms but also through the use of propaganda have
they been successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political.  The accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated.  The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to
the Philippines to die.  But Mrs. Aquino, considering the dire consequences to the nation
of his return at a time when the stability of government is threatened from various
directions and the economy is just beginning to rise and move forward, has stood firmly
on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique.  It should not create a precedent, for the case of a dictator
forced out of office and into exile after causing twenty years of political, economic and
social havoc in the country and who within the short space of three years seeks
to return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the respondents
to issue travel documents to Mr. Marcos and the immediate members of his family and
to enjoin the implementation of the President's decision to bar their return to
the Philippines.

The Issue

The issue is basically one of power:  whether or not, in the exercise of the powers

granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1.  Does the President have the power to bar the return of former President Marcos and
his family to the Philippines?

a.  Is this a political question?

2.  Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of "national security, public
safety or public health" -

a. Has the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety
or public health?

b.  Assuming that she has made that finding, -

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety,
or public health a political question?

d.  Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public safety, or
public health, have respondents established such fact?

3.  Have the respondents, therefore, in implementing the President's decision to bar the
return of former President Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing
any act which would effectively bar the return of former President Marcos and his
family to the Philippines?  [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]

The case for petitioners is founded on the assertion that the right of
the Marcoses to return to the Philippines is guaranteed under the following provisions
of the Bill of Rights, to wit:
Section 1.  No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

x x x

Section 6.  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 petitioners contend that the President is without power to impair the liberty of

abode of the Marcoses because only a court may do so “within the limits prescribed by
law.” Nor may the President impair their right to travel because no law has authorized
her to do so.  They advance the view that before the right to travel may be impaired by
any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos
and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13.  (1) Everyone has the right to freedom of movement and residence within the
borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his
country.

Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:

Article 12

1)      Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.

2)      Everyone shall be free to leave any country, including his own.

3)  The above-mentioned rights shall not be subject to any restrictions except those

which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

 On the other hand, the   respondents'  principal argument is that the issue in
this case involves a political question which is non-justiciable.  According to the Solicitor
General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of
abode.  Petitioners invoke these constitutional rights in vacuo without reference to
attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not

petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and public
safety.

It may be conceded that as formulated by petitioners, the question is not a political

question as it involves merely a determination of what the law provides on the matter
and application thereof to petitioners Ferdinand E. Marcos and family.  But when the
question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question becomes political ands this
Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here?  This is clearly
a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to

the Philippines and reestablish their residence here even it their return and residence
here will endanger national security and public safety?  This is still a justiciable question
which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos
and family shall return to the Philippines and establish their residence here?  This is now
a political question which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the Philippines.  [Memorandum
for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national
security over individual rights.  In support thereof, they cite Article II of the Constitution,
to wit:
Section 4.  The prime duty of the Government is to serve and protect the
people.  The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military, or civil service.
Section 5.  The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and his family from
returning to the Philippines for reasons of national security and public safety has
international precedents.  Rafael Trujillo of the Dominican
Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio Batista of Cuba, King Farouk of
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments.  [See Statement of Foreign Affairs Secretary Raul
S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the
scope of presidential power and its limits.  We, however, view this issue in a different
light.  Although we give due weight to the parties' formulation of the issues, we are not
bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S. Supreme Court
in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d
1204] and Haig v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640] which affirmed the
right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel
from the Philippines to other countries or within the Philippines.  These are what the
right to travel would normally connote.  Essentially, the right involved is the right to
return to one's country, a totally distinct right under international law, independent
from although related to the right to travel.  Thus, the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the right to leave a
country, and the right to enter one's country as separate and distinct rights.  The
Declaration speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(1)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the other
hand, the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art.  12(1)] and the right to "be free to leave any country,
including his own," [Art. 12(2)] which rights may be restricted by such laws as "are
necessary to protect national security, public order, public health or morals or the
separate rights and freedoms of others." [Art. 12(3)] as distinguished from the "right to
enter his own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to
one's country in the same context as those pertaining to the liberty of abode and the
right to travel.
The right to return to one's country is not among the rights specifically guaranteed
in the Bill of Rights, which treats only of the liberty of abode and the right to
travel, but it is our well-considered view that the right to return may be considered, as a
generally accepted principle of international law and under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are
not determinative of this case and are only tangentially material insofar as they relate to
a conflict between executive action and the exercise of a protected right.  The issue
before the Court is novel and without precedent in Philippine, and even in
American, jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not
there can be limitations on the right to travel in the absence of legislation to that effect
is rendered unnecessary.  An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution.  Our resolution of the issue will involve a two-tiered
approach.  We shall first resolve whether or not the President has the power, under the
Constitution, to bar the Marcoses from returning to the Philippines.  Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcoses to the Philippines poses a serious threat to national interest and
welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great

branches of government.  To recall the words of Justice Laurel
in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.] Thus, the 1987
Constitution explicitly provides that "[t]he legislative power shall be vested in the
Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in
the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by law"
[Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the
Constitution.  For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative power;
and a grant of the judicial power means a grant of all the judicial power which may be
exercised under the government." [At 631-632.] If this can be said of the legislative
power which is exercised by two chambers with a combined membership of more than
two hundred members and of the judicial power which is vested in a hierarchy of courts,
it can equally be said of the executive power which is vested in one official - the
President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the Presidents of the Philippines." (Art. VII, Sec. 1.] However, it does not define
what is meant by "executive power" although in the same article it touches on
the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws,
the appointing power, the powers under the commander-in-chief clause, the power
to grant reprieves, commutations and pardons, the power to grant amnesty with
the concurrence of Congress, the power to contract or guarantee foreign loans, the
power to  enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Secs. 14-23.]
The inevitable question then arises:  by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall exercise
those specific powers and no other?  Are these enumerated powers the breadth and
scope of  "executive power"?  Petitioners advance the view that the President’s powers
are limited to those, specifically enumerated in the 1987 Constitution.  Thus, they
assert:  "The President has enumerated powers, and what is not enumerated is
impliedly denied to her, Inclusio unius est exclusio alterius.” [Memorandum for
Petitioners, p. 4; Rollo, p. 223.] This argument brings to mind the institution of the
U.S. Presidency after which ours is legally patterned.*
Corwin, in his monumental volume on the President of the United States grappled
with the same problem.  He said:
Article II is the most loosely drawn chapter of the Constitution.  To those who think that
a constitution ought to settle everything beforehand it should be a nightmare; by the
same token, to those who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article II in its opening words:  "The executive power

shall be vested in a President of the United States of
America." x x x.  [The President:  Office and Powers, 1787-1957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different
persons who held the office from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that “what the
presidency is at any particular moment depends in important measure on who is
President.” [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution.  It remained, of
course, an agency of government subject to unvarying demands and duties no matter
who was President.  But, more than most agencies of government, it changed shape,
intensity and ethos according to the man in charge.  Each President's distinctive
temperament and character, his values, standards, style, his habits, expectations,
idiosyncrasies, compulsions, phobias recast the White House and pervaded the entire
government.  The executive branch, said Clark Clifford, was a chameleon, taking its color
from the character and personality of the President.  The thrust of the office, its impact
on the constitutional order, therefore altered from President to President.  Above all,
the way each President understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate and to render an
accounting to the nation and posterity determined whether he strengthened or
weakened the constitutional order.  [At 212-213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does
but, rather, that the consideration of tradition and the development of presidential
power under the different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987
Constitution.  The 1935 Constitution created a strong President with explicitly broader
powers than the U.S. President.  The 1973 Constitution attempted to modify the system
of government into the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature.  The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution
itself withholds it.  Furthermore, the Constitution itself provides that the execution of
the laws is only one of the powers of the President.  It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over
the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power."  Corollarily, the
powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution.  In other words, executive power is more than the sum
of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive.  Thus, in the landmark decision
of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of
who between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal Company
and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
. . . Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature.  Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more clear that they
are not
judicial.  The fact that they do not fall within the authority of either of these two constit
utes logical ground for concluding that they do fall within that of the remaining one amo
ng which the powers of government are divided.  . . . [At 202-203; underscoring
supplied.]
 We are not unmindful of Justice Holmes strong dissent.  But in his enduring words
of dissent we find reinforcement for the view that it would indeed be a folly to construe
the powers of a branch of government to embrace only what are specifically mentioned
in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and
white.  Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other.  x x x

x x x

It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires.  [At 210-211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of the
Government is to serve and protect the people" and that "[t]he maintenance of peace
and order, the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action.  But such does not mean
that they are empty words.  Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these plans, or from
another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to
return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision.  More than that, having sworn to
defend and uphold the Constitution, the President has the
obligation under the Constitution to protect the people, promote their welfare and
advance the national interest.  It must be borne in mind that the Constitution, aside
from being an allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.  Hence, lest the
officers of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the travails
of the country are laid and from whom billions of dollars believed to be ill-gotten wealth
are sought to be recovered.  The constitutional guarantees they invoke are neither
absolute nor inflexible.  For the exercise of even the preferred freedoms of speech and
of expression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals.  The power involved is
the President's residual power to protect the general welfare of the people.  It is
founded on the duty of the President, as steward of the people.  To paraphrase
Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation
demand [See Corwin, supra, at 153.] It is a power borne by the President's duty to
preserve and defend the Constitution.  It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed
[See Hyman, The American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government and is best lodged
in the President.]
More particularly, this case calls for the exercise of the President's powers
as protector of the peace.  [Rossiter, The American Presidency.] The power of the
President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal
threats to its existence.  The President is not only clothed with extraordinary powers
in times of emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon.  Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want of
an emergency specified in the commander-in-chief provision.  For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in-Chief powers short of the calling of
the armed forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcoses from
returning has been recognized by members of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.] The Resolution
does not question the President's power to bar the Marcoses from returning to
the Philippines, rather, it appeals to the President's sense of compassion to allow a man
to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one.  It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect
general welfare.  In that context, such request or demand should submit to the exercise
of a broader discretion on the part of the President to determine whether it must be
granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty "to determine whether or

not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide.  But
nonetheless there remain issues beyond the Court's jurisdiction the determination of
which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum.  We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such
action may appear.  We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant.  Nor can we amend the
Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on
the political question doctrine.  The deliberations of the Constitutional Commission cited
by petitioners show that the framers intended to widen the scope of judicial review but
they did not intend courts of justice to settle all actual controversies before
them.  When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned.  If
grave abuse is not established, the Court will not substitute its judgment for that of the
official concerned and decide a matter which by its nature or by law is for the latter
alone to decide.  In this light, it would appear clear that the second paragraph of Article
VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers
the courts to determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions.  Pursuant to the
principle of separation of powers underlying our system of government, the Executive is
supreme within his own sphere.  However, the separation of powers, under the
Constitution, is not absolute.  What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension
of the privilege, but only if and when he acts within the sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check - not to
supplant - the Executive, or to ascertain merely whether he has gone beyond the
constitution limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. . . . [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines.  If such postulates do exist, it cannot be said
that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in
deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and
the facts revealed during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision.
The Court cannot close its eyes to present realities and pretend that the country
is not besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism,
the murder with impunity of military men, police officers and civilian officials, to
mention only a few.  The documented history of the efforts of the Marcoses and their
followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would
only exacerbate and intensify the violence directed against the State and instigate more
chaos.
As divergent and discordant forces, the enemies of the State may be contained.  The
military establishment has given assurances that it could handle the threats posed by
particular groups.  But it is the catalytic effect of the return of
the Marcoses that may prove to be the proverbial final straw that would break the
camel's back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses
a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause
the escalation of violence against the State, that would be the time for the President to
step in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence.  The State, acting through the Government,
is not precluded from taking pre-emptive action against threats to its existence if,
though still nascent, they are perceived as apt to become serious and direct.  Protection
of the people is the essence of the duty of government.  The preservation of the State -
the fruition of the people's sovereignty - is an obligation in the highest order.  The
President, sworn to preserve and defend the Constitution and to see the faithful
execution the laws cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy attributed to
the Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed
away by the Marcoses in foreign jurisdictions.  Then, we cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills.  The resulting precarious state of
our economy is of common knowledge and is easily within the ambit of judicial notice.
 The President has determined that the destabilization caused by the return of
the Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse.  Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not
act arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to
the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Narvasa,  Melencio-Herrera,  Gancayco, Grino-Aquino, Medialdea,  and Regalado,

JJ.,  concur.
Fernan, C.J., see separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla, and  Sarmiento, JJ., see dissent.
Paras, J., I dissent in separate opinion.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
Feliciano, J., on leave. Voted to grant petition when this case was deliberated upon.
 
 

*
 The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency.  But at the outset it must be pointed out that the
Philippine government established under the constitutions of 1935, 1973 and
1987 is a unitary government with general powers unlike that of the United
States which is a federal government with limited and enumerated powers.  Even
so the powers of the president of the Unites States have through the years
grown, developed and taken shape as students of that presidency have
demonstrated.

DISSENTING OPINION

PADILLA, J.:
 I dissent.  As I see it, the core issue in this case is, which right will prevail in the
conflict between the right of a Filipino, Ferdinand E. Marcos, to return to
the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety.  In this context, the issue is
clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power.  Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice
Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the
power of Judicial Review, viz:
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government." Article VIII, Section 1, par. 2; (emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right
of every Filipino to travel which, in the language of the Constitution, shall not be
impaired "except in the interest of national security, public safety, or public health, as
may be provided by law" (Art. III, Sec. 6).  That the right to travel comprises the right to
travel within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable.  Short of all such components, the right to travel is
meaningless.  The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel
is absolute.  I do not agree.  It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely
declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security,
public safety or public health.  I do not, therefore, accept the petitioners’ submission
that, in the absence of enabling legislation, the Philippine Government is
powerless to restrict travel even when such restriction is demanded by national security,
public safety or public health.  The power of the State, in particular
cases, to restrict travel of its citizens finds abundant support in the police power of the
State, which may be exercised to preserve and maintain government as well as promote
the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any
given time, to restrict travel, even if founded on police power, cannot be absolute and
unlimited under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i. e., the right to return to the country.[1] Have the respondents
presented sufficient evidence to offset or override the exercise of this right invoked by
Marcos?  Stated differently, have the respondents shown to the Court sufficient factual
bases and data which would justify their reliance on national security and public safety
in negating the right to return invoked by Mr. Marcos?
 I have given these questions a searching examination:  I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land
last 28 July 1989.  I have searched, but in vain, for convincing evidence that would
defeat and overcome the right of Mr. Marcos as a Filipino to return to this country.  It
appears to me that the apprehensions entertained and expressed by the respondents,
including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety.  They appear to be more speculative
than real, obsessive rather than factual.  Moreover, such apprehensions even if
translated into realities, would be "under control", as admitted to the Court by said
military authorities, given the resources and facilities at the command of
government.  But, above all, the Filipino people themselves, in my opinion, will know
how to handle any situation brought about by a political recognition of Mr. Marcos' right
to return, and his actual return, to this country.  The Court, in short, should not accept
respondents' general apprehensions, concerns and perceptions at face value, in the light
of a countervailing and even irresistible, specific, clear, demandable, and enforceable
right asserted by a Filipino.
Deteriorating political, social,   economic or exceptional conditions, if any, are not to
be used as a pretext to justify derogation of human rights.[2]
As a member of the United Nations, the Philippines has obligations under its
charter.  By adopting the generally accepted principles of international law as part of the
law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot
just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which
provides that everyone has the right to leave any country, including his own,
and to return to his country.  This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (emphasis supplied)
“Arbitrary” or "arbitrarily" was specifically chosen by the drafters of the
Covenant[3] hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions
or a particular sense of justice which falls short of international law or standards.[4]
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety", it
is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question.  I do not agree.  I believe that this is one
case where the human and constitutional right invoked by one party is so specific,
substantial and clear that it cannot be overshadowed, much less, nullified
by simplistic generalities; worse, the Court neglects its duty under the Constitution
when it allows the theory of political question to serve as a convenient, and yet, lame
excuse for evading what, to me, is its clearly pressing and demandable duty to the
Constitution.
During the oral arguments in this case, I asked Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to
return to the Philippines in 1983 and, at the same time, credibly deny the right of Mr.
Marcos, also a Filipino, to return to the Philippines in 1989.  I still have not found a
satisfactory answer to that question.  Instead, it has become clearer by the day that the
drama today is the same drama in 1983 with the only difference that the actors are in
opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.
 To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this case
-
1. Mr. Marcos is a Filipino and, as such, entitled to return to,[5] die and be
buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him.  All we have are general conclusions of
"national security" and "public safety" in avoidance of a specific demandable and
enforceable constitutional and basic human right to return;
3. the issue of Marcos’ return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge.” It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.

[1]
 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration of Human Rights.
[2]
 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency
Situations:  Underdevelopment, Catastrophies and Armed Conflicts, The
International Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
[3]
 P. Hassan, The Word “Arbitrary” as used in the Universal Declaration of Human
Rights:  “Illegal or Unjust", 10 Harv. Int. L.J., p. 225 (1969).
[4]
 F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions of
Human Rights, pp. 135-166.
[5]
 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the Unites
States, is beyond the issues in this case; similarly, as to how the Philippine
government should deal with Mr. Marcos upon his return is also outside of the
issues in this case.

DISSENTING OPINION

PARAS, J.:

I dissent.  Already, some people refer to us as a nation without discipline.  Are we

ready to be also called a society without compassion?
 The issue as to whether or not former President Ferdinand E. Marcos should be
allowed to return to the Philippines may be resolved by answering two simple
questions:  Does he have the right to return to his own country?; and should national
safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under
the Universal Declaration of Human Rights and the 1987 Constitution of the Philippines,
he has the right to return to his own country except only if prevented by the demands of
national safety and national security.
Our Armed Forces have failed to prove this danger.  They are bereft of hard
evidence, and all they can rely on is sheer speculation.  True, there is some danger but
there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted
from this country by popular will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that
the former President should be allowed to return to our country under the conditions
that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried within
ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.

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    * Office of the Administrative Services – Office of the Court Administrator v. Judge
Ignacio B. Macarine, A.M. No. MTJ-10-1770, 18 July 2012

691 Phil. 217

SECOND DIVISION

[ A.M. No. MTJ-10-1770, July 18, 2012 ]

OFFICE OF ADMINISTRATIVE SERVICES-OFFICE OF THE COURT ADMINISTRATOR,

COMPLAINANT, VS. JUDGE IGNACIO B. MACARINE, MUNICIPAL CIRCUIT TRIAL COURT,
GEN. LUNA, SURIGAO DEL NORTE, RESPONDENT.

DECISION

BRION, J.:

The Office of the Court Administrator (OCA) filed the present administrative case against
Judge Ignacio B. Macarine (respondent) for violation of OCA Circular No. 49-
2003[1] dated MAy 20, 2003.

OCA CIrcular No. 49-2003 requires that all foreign travels of judges and court personnel,
regardless of the number of days, must be with prior permission from the COurt.  A
travel authority must be secured from the OCA. Judges must submit the following
requirements.

[1.] application or letter-request addressed to the Court Administrator stating the

purpose of the travel abroad[;]
[2.] application for leave covering the period of the travel abroad, favorably
recommended by the Executive Judge[; and]

[3.] certification from the Statistics Division, Court Management Office, OCA as to the
condition of the docket[.][2]

The complete requirements should be submitted to and received by the OCA at least
two weeks before the intended time of travel. No action shall be taken on requests for
travel authority with incomplete requirements.[3] Judges and personnel who shall leave
the country without travel authority issued by [the OCA] shall be subject to disciplinary
action.[4]

On August 13, 2009, the respondent wrote then Court Administrator, now Associate
Justice Jose Portugal Perez, requesting for authority to travel to Hongkong with his
family for the period of September 10 - 14, 2009 where he would celebrate his
65th birthday. The respondent stated that his travel abroad shall be charged to his
annual forced leave. However, he did not submit the corresponding application for
leave. For his failure to submit the complete requirements, his request for authority to
travel remained unacted upon. The respondent proceeded with his travel abroad
without the required travel authority from the OCA.

On January 28, 2010,[5] the respondent was informed by the OCA that his leave of
absence for the period of September 9-15, 2009 had been disapproved and his travel
considered unauthorized by the Court. His absences shall not be deducted from his
leave credits but from his salary corresponding to the seven (7) days that he was absent,
pursuant to Section 50 of the Omnibus Rules on Leave.[6] The respondent was also
required to submit his explanation on his failure to comply with OCA Circular No.
492003.

In his letter-explanation dated February 25, 2010, the respondent narrated that his
daughter, a nurse working in New Jersey, USA, gave him a trip to Hongkong as a gift for
his 65th birthday. In the first week of September 2009, he received a call from his
daughter that she had already booked him, together with his wife and two sons, in a
hotel in Hongkong from September 13 to 15, 2009. They flew in to Manila from Surigao
City on September 9, 2009, intending to prepare the necessary papers for his authority
to travel at the Supreme Court the following day. However, sensing time constraint and
thinking of the futility of completing the requirements before their scheduled flight, he
opted not to immediately complete the requirements and simply went ahead with their
travel abroad. He thought of submitting his compliance upon his return to Manila. He
acknowledged his mistake and regretted his failure to comply with OCA Circular No. 49-
2003. He promised not to commit the same infraction again. He further requested for
reconsideration of the OCA’s intended action to deduct his salary corresponding to the
seven (7) days that he was absent, instead of charging his absences to his leave credits.
In an Evaluation Report dated September 6, 2010, the OCA found the respondent guilty
of violation of OCA Circular No. 49-2003 for traveling out of the country without filing
the necessary application for leave and without first securing a travel authority from the
Court. The OCA recommended:

a) this matter be RE-DOCKETED as a regular administrative matter;

b) Judge Ignacio B. Macarine, MCTC, Gen. Luna, Surigao del Norte, be FINED in the
amount of P5,000.00 for Violation for Circular No. 49-2003 dated May 20, 2003; and

c) the Financial Management Office, Finance Division, OCA, be DIRECTED to DEDUCT the

amount equivalent to the seven (7) days salary of Judge Ignacio Macarine as a result of
his disapproved and unauthorized leave of absence pursuant to Section 50, Omnibus
Rules on Leave, without deducting his leave credits thereof. [emphases supplied]

True, the right to travel is guaranteed by the Constitution. However, the exercise of such
right is not absolute. Section 6, Article III of the 1987 Constitution allows restrictions on
one’s right to travel provided that such restriction is in the interest of national security,
public safety or public health as may be provided by law. This, however, should
by no means be construed as limiting the Court’s inherent power of administrative
supervision over lower courts. OCA Circular No. 49-2003 does not restrict but merely
regulates, by providing guidelines to be complied by judges and court personnel, before
they can go on leave to travel abroad. To “restrict” is to restrain or prohibit a person
from doing something; to “regulate” is to govern or direct according to rule.

To ensure management of court dockets and to avoid disruption in the administration of

justice, OCA Circular No. 49-2003 requires a judge who wishes to travel abroad to
submit, together with his application for leave of absence duly recommended for
approval by his Executive Judge, a certification from the Statistics Division, Court
Management Office of the OCA, as to the condition of his docket, based on his
Certificate of Service for the month immediately preceding the date of his intended
travel, that he has decided and resolved all cases or incidents within three (3) months
from date of submission, pursuant to Section 15(1) and (2), Article VIII of the 1987
Constitution.[7]

For traveling abroad without having been officially allowed by the Court, the respondent
is guilty of violation of OCA Circular No. 49-2003. Under Section 9(4), Rule 140 of the
Revised Rules of Court, violation of Supreme Court directives and circular is considered a
less serious charge and, therefore, punishable by suspension from office without salary
and other benefits for not less than one (1) month nor more than three (3) months; or a
fine of more than P10,000.00 but not exceeding P20,000.00.[8]
Section 53, Rule IV of the Revised Rules on Administrative Cases in the Civil Service
grants the disciplining authority the discretion to consider mitigating circumstances in
the imposition of the proper penalty. The Court had in several instances refrained from
imposing the actual penalties in the presence of mitigating facts, such as the employee’s
length of service, acknowledgement of his or her infractions and feelings of remorse for
the same, advanced age, family circumstances, and other humanitarian and equitable
considerations.

In the present case, the respondent, after learning that his daughter had already booked
him and his family in a hotel in Hongkong, immediately went to Manila to secure his
travel authority from the Court. However, with the short period of time from their
arrival in Manila on September 9, 2009 up to the time of their booking in Hongkong
from September 13 to 15, 2009, he was pressed for time and opted not to complete the
required travel authority, with the intention of securing one after his travel. The
respondent regretted his failure to comply with the requirements of OCA Circular No.
49-2003. He acknowledged his mistake and promised not to commit the same infraction
in the future.

We consider the outlined circumstances as mitigating. Following judicial precedents, the

respondent deserves some degree of leniency in imposing upon him the appropriate
penalty.

WHEREFORE, respondent Judge Ignacio B. Macarine, Municipal Circuit Trial Court, Gen.
Luna, Surigao del Norte, is hereby given the ADMONITION that he acted irresponsibly
when he opted not to immediately secure a travel authority and is saved only from the
full force that his violation carries by the attendant mitigating circumstances. He is
also WARNED that the commission of a similar violation in the future will merit a more
severe penalty. The recommendation of the Office of the Court Administration that his
absences, which were unauthorized, shall not be deducted from his leave credits but
from his salary is hereby APPROVED.

SO ORDERED.

Carpio, J., join the concurring &  dissenting opinion of J. Sereno.

Abad*, and Reyes, JJ., concur.
Sereno, J., please see my concurring & dissenting opinion.

*
 Justice Roberto A. Abad was designated as additional member in lieu of Justice P. Perez
per Raffle dated July 16, 2012.

[1]
 Guidelines on Requests for Travel Abroad and Extensions for Travel/Stay Abroad.
[2]
 Id., paragraph B1.

[3]
 Id., paragraph B2.

[4]
  Id., paragraph B4.

[5]
 Letter of Court Administrator Jose Midas P. Marquez.

[6]
  Effect of unauthorized leave. - An official/employee who is absent without approved
leave shall not be entitled to receive his salary corresponding to the period of his
unauthorized leave of absence. It is understood however, that his absence
shall no longer be deducted from his accumulated leave credits, if there are any.

[7]
 Section 15. (1) All cases or matters filed after the effectivity of this Constitution must
be decided or resolved within twenty-four months from date of submission for the
Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower
collegiate courts, and three months for all other lower courts.

(2) A case or matter shall be deemed submitted for decision or resolution upon the filing
of the last pleading, brief, or memorandum required by the Rules of Court or by the
court itself.

[8]
 Section 11(B1 &2), Revised Rules of Court.

DISSENTING AND CONCURRING OPINION

SERENO, J.:

The ponencia holds respondent Judge Ignacio B. Macarine (Judge Macarine)

administratively liable for violating Office of the Court Administrator (OCA) Circular No.
49-2003, which directs judges and court personnel to submit the complete
requirements for foreign travel two weeks before their intended departure. I agree with
the imposition of a penalty on Judge Macarine for his failure to (a) file an application for
leave and (b) submit a report on the conditions of the docket pending in his sala prior to
his travel abroad. However, I do not agree that he should be penalized for his failure to
request a travel authority from the OCA.

The policy of the Court requiring judges and court personnel to secure a travel authority
must be re-examined. As stated in the Dissenting Opinion of Senior Associate Justice
Antonio T. Carpio, the Guidelines on Request for Travel Abroad of all Members and
Personnel of the Appellate Courts and Trial Courts, and Officials and Personnel of the
Supreme Court and the Office of the Court Administrator[1] call for a "wholistic review of
the guidelines for travels abroad of all members and personnel of the Judiciary."

Requiring judges and court personnel prior submission of a request for travel authority
impairs their right to travel, a constitutional right that cannot be unduly curtailed.
During the approved leave of absence of a judge or court personnel, he or she should be
accorded the liberty to travel within the country or abroad, as any other citizen, without
this Court imposing a requirement to secure prior permission therefor.[2] Moreover, the
Court cannot inquire into the purpose of the intended travel of a judge or court
personnel, as doing so would be an unwarranted interference into his or her private
affairs.[3]

Thus, Judge Macarine should not be held administratively liable for his failure to secure
a permit to travel prior to his intended departure, as such action would amount to an
unjustified restriction to his constitutional right to travel.  However, on account of his
failure to file (a) an application for leave and (b) a report on his caseload prior to his
travel abroad, I agree that he should be admonished.

[1]
 A.M. No. 12-6-13-SC 13 June 2012.

[2]
 See Dissenting Opinion of Senior Associate Justice Antonio T. Carpio in Leave Division,
Office of Administrative Services-OCA v. Heusdens,  A.M. No. P-11-2927, 13 December
2011.

[13]
 Id.

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  * Efraim C. Genuino, et al., v. Hon. Leila M. De Lima, et., al., G.R. Nos. 199034, 199046
and 197930, April 17, 2018

EN BANC

[ G.R. No. 197930, April 17, 2018 ]

EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. SEE, PETITIONERS, VS. HON.
LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V.
PARAS III, IN HIS CAPACITY AS CHIEF STATE COUNSEL, CRISTINO L. NAGUIAT, JR. AND
THE BUREAU OF IMMIGRATION, RESPONDENTS.

[G.R. No. 199034]

MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS

SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., AS
COMMISSIONER OF THE BUREAU OF IMMIGRATION, RESPONDENTS.

[G.R. No. 199046]
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. LEILA M. DE LIMA, AS SECRETARY OF
THE DEPARTMENT OF JUSTICE AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL,
DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN HIS CAPACITY AS
COMMISSIONER, BUREAU OF IMMIGRATION, RESPONDENTS.

DECISION

REYES, JR., J:

These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance
of Temporary Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under
Rule 65 of the Rules of Court assail the constitutionality of Department of Justice (DOJ)
Circular No. 41, series of 2010, otherwise known as the "Consolidated Rules and
Regulations Governing Issuance and Implementation of Hold Departure Orders,
Watchlist Orders and Allow Departure Orders" on the ground that it infringes on the
constitutional right to travel.

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set
aside the following orders issued by the former DOJ Secretary Leila De Lima (De Lima),
pursuant to DOJ Circular No. 41, thus:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;[1]

2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;[2] and

3. Watchlist Order No. 2011-573 dated October 27, 2011.[3]

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the

invalidation of the Order[4] dated November 8, 2011, denying her application for an
Allow-Departure Order (ADO).

Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino

(Erwin) and Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-
Departure Order[5] (HDO) No. 2011-64 dated July 22, 2011 issued against them.

Antecedent Facts

On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17,
prescribing rules and regulations governing the issuance of HDOs. The said issuance was
intended to restrain the indiscriminate issuance of HDOs which impinge on the people's
right to travel.

On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18,
prescribing rules and regulations governing the issuance and implementation of
watchlist orders. In particular, it provides for the power of the DOJ Secretary to issue a
Watchlist Order (WLO) against persons with criminal cases pending preliminary
investigation or petition for review before the DOJ. Further, it states that the DOJ
Secretary may issue an ADO to a person subject of a WLO who intends to leave the
country for some exceptional reasons.[6] Even with the promulgation of DOJ Circular No.
18, however, DOJ Circular No. 17 remained the governing rule on the issuance of HDOs
by the DOJ.

On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ
Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern the
issuance and implementation of HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No.
41 expressly repealed all rules and regulations contained in DOJ Circular Nos. 17 and 18,
as well as all instructions, issuances or orders or parts thereof which are inconsistent
with its provisions.

After the expiration of GMA's term as President of the Republic of the Philippines and
her subsequent election as Pampanga representative, criminal complaints were filed
against her before the DOJ, particularly:

(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al.,

for plunder;[7]

(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al.,

for plunder, malversation and/or illegal use of OWWA funds, graft and corruption,
violation of the Omnibus Election Code (OEC), violation of the Code of Conduct and
Ethical Standards for Public Officials, and qualified theft;[8] and

(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al.,

for plunder, malversation, and/or illegal use of public funds, graft and corruption,
violation of the OEC, violation of the Code of Conduct and Ethical Standards for Public
Officials and qualified theft.[9]

In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422
dated August 9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41.
She also ordered for the inclusion of GMA's name in the Bureau of Immigration (BI)
watchlist.[10] Thereafter, the BI issued WLO No. ASM-11-237,[11] implementing De Lima's
order.

On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA
to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.[12] WLO
No. 2011-422, as amended, is valid for a period of 60 days, or until November 5, 2011,
unless sooner terminated or otherwise extended. This was lifted in due course by De
Lima, in an Order dated November 14, 2011, following the expiration of its validity.[13]

Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and
Violation of the OEC were filed against GMA and her husband, Jose Miguel Arroyo
(Miguel Arroyo), among others, with the DOJ-Commission on Elections (DOJ-COMELEC)
Joint Investigation Committee on 2004 and 2007 Election Fraud,[14] specifically:

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs.
Gloria Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral
sabotage/violation of the OEC and COMELEC Rules and Regulations;[15] and

(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria
Macapagal-Arroyo, et al., for electoral sabotage.[16]

Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573
against GMA and Miguel Arroyo on October 27, 2011, with a validity period of 60 days,
or until December 26, 2011, unless sooner terminated or otherwise extended.[17]

In three separate letters dated October 20, 2011, October 21, 2011, and October 24,
2011, GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular
No. 41, so that she may be able to seek medical attention from medical specialists
abroad for her hypoparathyroidism and metabolic bone mineral disorder. She
mentioned six different countries where she intends to undergo consultations and
treatments: United States of America, Germany, Singapore, Italy, Spain and Austria.
[18]
 She likewise undertook to return to the Philippines, once her treatment abroad is
completed, and participate in the proceedings before the DOJ.[19] In support of her
application for ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to
the Secretary of Foreign Affairs, of her Travel Authority;

2. First Endorsement dated October 19, 2011[20] of Artemio A. Adasa, OIC Secretary
General of the House of Representatives, to the Secretary of Foreign Affairs, amending
her Travel Authority to include travel to Singapore, Spain and Italy;

3. Affidavit dated October 21, 2011,[21] stating the purpose of travel to Singapore,

Germany and Austria;

4. Medical Abstract dated October 22, 2011,[22] signed by Dr. Roberto Mirasol (Dr.
Mirasol);

5. Medical Abstract dated October 24, 2011,[23] signed by Dr. Mario Ver;

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the
schedule of consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad, the
Medical Abstract prepared by Dr. Mirasol was referred to then Secretary of the
Department of Health, Dr. Enrique Ona (Dr. Ona) for his expert opinion as the chief
government physician. On October 28, 2011, Dr. Ona, accompanied by then Chairperson
of the Civil Service Commission, Francisco Duque, visited GMA at her residence in La
Vista Subdivision, Quezon City. Also present at the time of the visit were GMA's
attending doctors who explained her medical condition and the surgical operations
conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating
reasonably well after having undergone a series of three major operations."[24]

On November 8, 2011, before the resolution of her application for ADO, GMA filed the
present Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with
Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R.
No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs issued against her for
allegedly being unconstitutional.[25]

A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari, and
Prohibition under the same rule, with Prayer for the Issuance of a TRO and/or a Writ of
Preliminary Injunction, likewise assailing the constitutionality of DOJ Circular No. 41 and
WLO No. 2011-573. His petition was docketed as G.R. No. 199046.[26]

Also, on November 8, 2011, De Lima issued an Order,[27] denying GMA's application for

an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of the applicant as
stated in her affidavit, on the other hand, and the medical abstract of the physicians as
well as her physician's statements to Secretary Ona during the latter's October 28, 2011
visit to the Applicant, on the other.

xxxx

Second, based on the medical condition of Secretary Ona, there appears to be no urgent
and immediate medical emergency situation for Applicant to seek medical treatment
abroad, x x x.

xxxx

Third, Applicant lists several countries as her destination, some of which were not for
purposes of medical consultation, but for attending conferences, x x x.

xxxx

Fourth, while the Applicant's undertaking is to return to the Philippines upon the
completion of her medical treatment, this means that her return will always depend on
said treatment, which, based on her presentation of her condition, could last
indefinitely, x x x.

xxxx

Fifth, x x x x. Applicant has chosen for her destination five (5) countries, namely,
Singapore, Germany, Austria, Spain and Italy, with which the Philippines has no existing
extradition treaty, x x x.

xxxx

IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of
merit.

SO ORDERED.[28]
On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III,
Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner,
(respondents) filed a Very Urgent Manifestation and Motion[29] in G.R.
Nos. 199034 and 199046, praying (1) that they be given a reasonable time to comment
on the petitions and the applications for a TRO and/or writ of preliminary injunction
before any action on the same is undertaken by the Court; (2) that the applications for
TRO and/or writ of preliminary injunction be denied for lack of merit, and; (3) that the
petitions be set for oral arguments after the filing of comments thereto.[30]

On November 13, 2011, GMA filed a Supplemental Petition[31] which included a prayer to

annul and set aside the Order dated November 8, 2011, denying her application for
ADO. On the following day, GMA filed her Comment/Opposition[32] to the respondents'
Very Urgent Manifestation and Motion dated November 9, 2011, in G.R. No. 199034.

On November 15, 2011, the Court issued a Resolution,[33] ordering the consolidation of

G.R. Nos. 199034 and 199046, and requiring the respondents to file their comment
thereto not later than November 18, 2011. The Court likewise resolved to issue a TRO in
the consolidated petitions, enjoining the respondents from enforcing or implementing
DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following
conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable
to this Court within five (5) days from notice hereof. Failure to post the bond within the
aforesaid period will result in the automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them who
will receive subpoena, orders and other legal processes on their behalf during their
absence. The petitioners shall submit the name of the legal representative, also within
five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be
traveling, the petitioners shall inform said embassy or consulate by personal appearance
or by phone of their whereabouts at all times;[34]
On the very day of the issuance of the TRO, the petitioners tendered their
compliance[35] with the conditions set forth in the Resolution dated November 15, 2011
of the Court and submitted the following: (1) a copy of Official Receipt No. 0030227-SC-
EP, showing the payment of the required cash bond of Two Million Pesos
(P2,000,000.00);[36] (2) certification from the Fiscal and Management and Budget Office
of the Supreme Court, showing that the cash bond is already on file with the office;
[37]
 (3) special powers of attorney executed by the petitioners, appointing their
respective lawyers as their legal representatives;[38] and (4) an undertaking to report to
the nearest consular office in the countries where they will travel.[39]

At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino
International Airport (NAIA), with an aide-de-camp and a private nurse, to take their
flights to Singapore. However, the BI officials at NAIA refused to process their travel
documents which ultimately resulted to them not being able to join their flights.[40]

On November 17, 2011, GMA, through counsel, filed an Urgent Motion[41] for

Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the
Country. She strongly emphasized that the TRO issued by the Court was immediately
executory and that openly defying the same is tantamount to gross disobedience and
resistance to a lawful order of the Court.[42] Not long after, Miguel Arroyo followed
through with an Urgent Manifestation,[43] adopting and repleading all the allegations in
GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for
Reconsideration and/or to Lift TRO,[44] praying that the Court reconsider and set aside
the TRO issued in the consolidated petitions until they are duly heard on the merits. In
support thereof, they argue that the requisites for the issuance of a TRO and writ of
preliminary injunction were not established by the petitioners. To begin with, the
petitioners failed to present a clear and mistakable right which needs to be protected by
the issuance of a TRO. While the petitioners anchor their right in esse on the right to
travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute.
One of the limitations on the right to travel is DOJ Circular No. 41, which was issued
pursuant to the rule-making powers of the DOJ in order to keep individuals under
preliminary investigation within the jurisdiction of the Philippine criminal justice system.
With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot
claim that they have a clear and unmistakable right to leave the country as they are the
very subject of the mentioned issuance.[45] Moreover, the issuance of a TRO will
effectively render any judgment on the consolidated petitions moot and academic. No
amount of judgment can recompense the irreparable injury that the state is bound to
suffer if the petitioners are permitted to leave the Philippine jurisdiction.[46]

On November 18, 2011, the Court issued a Resolution,[47] requiring De Lima to show

cause why she should not be disciplinarily dealt with or held in contempt of court for
failure to comply with the TRO. She was likewise ordered to immediately comply with
the TRO by allowing the petitioners to leave the country. At the same time, the Court
denied the Consolidated Urgent Motion for Reconsideration and/or to Lift TRO dated
November 16, 2011 filed by the Office of the Solicitor General.[48]

On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC
Preliminary Investigation Committee, filed an information for the crime of electoral
sabotage under Section 43(b) of Republic Act (R.A.) No. 9369 against GMA, among
others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-
PSY-11-04432-CR[49] and raffled to Branch 112. A warrant of arrest for GMA was
forthwith issued.

Following the formal filing of an Information in court against GMA, the respondents filed
an Urgent Manifestation with Motion to Lift TRO.[50] They argue that the filing of the
information for electoral sabotage against GMA is a supervening event which warrants
the lifting of the TRO issued by this Court. They asseverate that the filing of the case
vests the trial court the jurisdiction to rule on the disposition of the case. The issue
therefore on the validity of the assailed WLOs should properly be raised and threshed
out before the RTC of Pasay City where the criminal case against GMA is pending, to the
exclusion of all other courts.[51]

Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the
complaint for violation of OEC and electoral sabotage against Miguel Arroyo, among
others, which stood as the basis for the issuance of WLO No. 2011-573. Conformably,
the DOJ issued an Order dated November 21, 2011,[52] lifting WLO No. 2011-573 against
Miguel Arroyo and ordering for the removal of his name in the BI watchlist.

Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on

November 22, 2011, despite requests from the petitioners' counsels for an earlier date.
Upon the conclusion of the oral arguments on December 1, 2011, the parties were
required to submit their respective memoranda.[53]

Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011[54] was issued
against Genuinos, among others, after criminal complaints for Malversation, as defined
under Article 217 of the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h)
and (i) of R.A. No. 3019 were filed against them by the Philippine Amusement and
Gaming Corporation (PAGCOR), through its Director, Eugene Manalastas, with the DOJ
on June 14, 2011, for the supposed diversion of funds for the film "Baler." This was
followed by the filing of another complaint for Plunder under R.A. No. 7080,
Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019,
against the same petitioners, as well as members and incorporators of BIDA Production,
Inc. Wildformat, Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into
the coffers of BIDA entities. Another complaint was thereafter filed against Efraim and
Erwin was filed before the Office of the Ombudsman for violation of R.A. No. 3019 for
allegedly releasing PAGCOR funds intended for the Philippine Sports Commission
directly to the Philippine Amateur Swimming Association, Inc.[55] In a Letter[56] dated July
29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through
counsel, requested that the HDO against them be lifted. This plea was however denied
in a Letter[57] dated August 1, 2011 which prompted the institution of the present
petition by the Genuinos. In a Resolution[58] dated April 21, 2015, the Court consolidated
the said petition with G.R. Nos. 199034 and 199046.

The Court, after going through the respective memoranda of the parties and their
pleadings, sums up the issues for consideration as follows:
I

WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;

II

WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and

III

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF

CONTEMPT OF COURT.
Ruling of the Court

The Court may exercise its power of judicial review despite the filing of information for
electoral sabotage against GMA. It is the respondents' contention that the present
petitions should be dismissed for lack of a justiciable controversy. They argue that the
instant petitions had been rendered moot and academic by (1) the expiration of the
WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6, 2011;
[59]
 (2) the filing of an information for electoral sabotage against GMA,[60] and; (3) the
lifting of the WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and
the subsequent deletion of his name from the BI watchlist after the COMELEC en
banc dismissed the case for electoral sabotage against him.[61]

The power of judicial review is articulated in Section 1, Article VIII of the 1987
Constitution which reads:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.[62]

Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have the standing
to question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.[63]

Except for the first requisite, there is no question with respect to the existence of the
three (3) other requisites. Petitioners have the locus standi to initiate the petition as
they claimed to have been unlawfully subjected to restraint on their right to travel
owing to the issuance of WLOs against them by authority of DOJ Circular No. 41. Also,
they have contested the constitutionality of the questioned issuances at the most
opportune time.

The respondents, however, claim that the instant petitions have become moot and
academic since there is no longer any actual case or controversy to resolve following the
subsequent filing of an information for election sabotage against GMA on November 18,
2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo and the deletion of his
name from the BI watchlist after the dismissal of the complaint for electoral sabotage
against him.

To be clear, "an actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and concrete, touching the
legal relations of parties having adverse legal interest; a real and substantial controversy
admitting of specific relief."[64] When the issues have been resolved or when the
circumstances from which the legal controversy arose no longer exist, the case is
rendered moot and academic. "A moot and academic case is one that ceases to present
a justiciable controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value."[65]

The Court believes that the supervening events following the filing of the instant
petitions, while may have seemed to moot the instant petitions, will not preclude it
from ruling on the constitutional issues raised by the petitioners. The Court, after
assessing the necessity and the invaluable gain that the members of the bar, as well as
the public may realize from the academic discussion of the constitutional issues raised in
the petition, resolves to put to rest the lingering constitutional questions that abound
the assailed issuance. This is not a novel occurrence as the Court, in a number of
occasions, took up cases up to its conclusion notwithstanding claim of mootness.

In Evelio Javier vs. The Commission on Elections,[66] the Court so emphatically stated,

thus:
The Supreme Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but we must also
give him justice. The two are not always the same. There are times when we cannot
grant the latter because the issue has been settled and decision is no longer possible
according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands
that we act then, not only for the vindication of the outraged right, though gone, but
also for the guidance of and as a restraint upon the future.[67]
In Prof. David vs. Pres. Macapagal-Arroyo,[68] the Court proceeded in ruling on the
constitutionality of Presidential Proclamation (PP) No. 1017 in which GMA declared a
state of national emergency, and General Order No. 5 (G.O. No. 5), which ordered the
members of the Armed Forces of the Philippines and the Philippine National Police to
carry all necessary actions to suppress acts of terrorism and lawless violence,
notwithstanding the issuance of PP 1021 lifting both issuances. The Court articulated,
thus:
The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative.

The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.[69] (Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the Court's
exercise of its power of judicial review. The petitioners impute the respondents of
violating their constitutional right to travel through the enforcement of DOJ Circular No.
41. They claim that the issuance unnecessarily places a restraint on the right to travel
even in the absence of the grounds provided in the Constitution.

There is also no question that the instant petitions involved a matter of public interest
as the petitioners are not alone in this predicament and there can be several more in
the future who may be similarly situated. It is not far fetched that a similar challenge to
the constitutionality of DOJ Circular No. 41 will recur considering the thousands of
names listed in the watch list of the DOJ, who may brave to question the supposed
illegality of the issuance. Thus, it is in the interest of the public, as well as for the
education of the members of the bench and the bar, that this Court takes up the instant
petitions and resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and supreme of all laws

We begin by emphasizing that the Constitution is the fundamental, paramount and

supreme law of the nation; it is deemed written in every statute and contract.[70] If a law
or an administrative rule violates any norm of the Constitution, that issuance is null and
void and has no effect.

The Constitution is a testament to the living democracy in this jurisdiction. It contains

the compendium of the guaranteed rights of individuals, as well as the powers granted
to and restrictions imposed on government officials and instrumentalities. It is that lone
unifying code, an inviolable authority that demands utmost respect and obedience.

The more precious gifts of democracy that the Constitution affords us are enumerated
in the Bill of Rights contained in Article III. In particular, Section 1 thereof provides:
Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license for an individual to
do whatever he pleases, for each is given an equal right to enjoy his liberties, with no
one superior over another. Hence, the enjoyment of one's liberties must not infringe on
anyone else's equal entitlement.

Surely, the Bill of Rights operates as a protective cloak under which the individual may
assert his liberties. Nonetheless, "the Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties. Even liberty itself, the greatest of all
rights, is not unrestricted license to act according to one's will. It is subject to the far
more overriding demands and requirements of the greater number."[71]

It is therefore reasonable that in order to achieve communal peace and public welfare,
calculated limitations in the exercise of individual freedoms are necessary. Thus, in
many significant provisions, the Constitution itself has provided for exceptions and
restrictions to balance the free exercise of rights with the equally important ends of
promoting common good, public order and public safety.

The state's exercise of police power is also well-recognized in this jurisdiction as an

acceptable limitation to the exercise of individual rights. In Philippine Association of
Service Exporters, Inc. vs. Drilon,[72] it was defined as the inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety, and
welfare of society. It is rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard constitutional rights did not
intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to ensure communal
peace, safety, good order, and welfare.[73]

Still, it must be underscored that in a constitutional government like ours, liberty is the
rule and restraint the exception.[74] Thus, restrictions in the exercise of fundamental
liberties are heavily guarded against so that they may not unreasonably interfere with
the free exercise of constitutional guarantees.

The right to travel and its limitations

The right to travel is part of the "liberty" of which a citizen cannot be deprived without
due process of law.[75] It is part and parcel of the guarantee of freedom of movement
that the Constitution affords its citizen. Pertinently, Section 6, Article III of the
Constitution provides:
Section 6. 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 maybe provided by law.
Liberty under the foregoing clause includes the right to choose one's residence, to leave
it whenever he pleases and to travel wherever he wills.[76] Thus, in Zacarias Villavicencio
vs. Justo Lucban,[77] the Court held illegal the action of the Mayor of Manila in expelling
women who were known prostitutes and sending them to Davao in order to eradicate
vices and immoral activities proliferated by the said subjects. It was held that regardless
of the mayor's laudable intentions, no person may compel another to change his
residence without being expressly authorized by law or regulation.

It is apparent, however, that the right to travel is not absolute. There are constitutional,
statutory and inherent limitations regulating the right to travel. Section 6 itself provides
that the right to travel may be impaired only in the interest of national security, public
safety or public health, as may be provided by law. In Silverio vs. Court of Appeals,[78] the
Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while
the liberty of travel may be impaired even without Court Order, the appropriate
executive officers or administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by law," a limitive phrase
which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I,
First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the previous regime when
there was a Travel Processing Center, which issued certificates of eligibility to travel
upon application of an interested party.[79] (Emphasis ours)
Clearly, under the provision, there are only three considerations that may permit a
restriction on the right to travel: national security, public safety or public health. As a
further requirement, there must be an explicit provision of statutory law or the Rules of
Court[80] providing for the impairment. The requirement for a legislative enactment was
purposely added to prevent inordinate restraints on the person's right to travel by
administrative officials who may be tempted to wield authority under the guise of
national security, public safety or public health. This is in keeping with the principle that
ours is a government of laws and not of men and also with the canon that provisions of
law limiting the enjoyment of liberty should be construed against the government and in
favor of the individual.[81]

The necessity of a law before a curtailment in the freedom of movement may be

permitted is apparent in the deliberations of the members of the Constitutional
Commission. In particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the
phrase "and changing the same" is taken from the 1935 version; that is, changing the
abode. The addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures
that, whether the rights be impaired on order of a court or without the order of a court,
the impairment must be in accordance with the prescriptions of law; that is, it is not left
to the discretion of any public officer.[82]
It is well to remember that under the 1973 Constitution, the right to travel is
compounded with the liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired
except upon lawful order of the court, or when necessary in the interest of national
security, public safety, or public health. (Emphasis ours)
The provision, however, proved inadequate to afford protection to ordinary citizens who
were subjected to "hamletting" under the Marcos regime.[83] Realizing the loophole in
the provision, the members of the Constitutional Commission agreed that a safeguard
must be incorporated in the provision in order to avoid this unwanted consequence.
Thus, the Commission meticulously framed the subject provision in such a manner that
the right cannot be subjected to the whims of any administrative officer. In addressing
the loophole, they found that requiring the authority of a law most viable in preventing
unnecessary intrusion in the freedom of movement, viz.:
MR. NOLLEDO. x x x x

My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that
the liberty of abode shall not be impaired except upon lawful order of the court or -
underscoring the word "or" - when necessary in the interest of national security, public
safety or public health. So, in the first part, there is the word "court"; in the second part,
it seems that the question rises as to who determines whether it is in the interest of
national security, public safety, or public health. May it be determined merely by
administrative authorities?

FR. BERNAS. The understanding we have of this is that, yes, it may be determined by
administrative authorities provided that they act, according to line 9, within the limits
prescribed by law. For instance when this thing came up; what was in mind were
passport officers. If they want to deny a passport on the first instance, do they have to
go to court? The position is, they may deny a passport provided that the denial is based
on the limits prescribed by law. The phrase "within the limits prescribed by law" is
something which is added here. That did not exist in the old provision.[84]
During the discussions, however, the Commission realized the necessity of separating
the concept of liberty of abode and the right to travel in order to avoid untoward
results. Ultimately, distinct safeguards were laid down which will protect the liberty of
abode and the right to travel separately, viz.:
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan
natin ang walang pakundangang paglabag sa liberty of abode sa ngalan ng national
security at pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito,
maisasagawa lamang ang "hamletting" upon lawful order of the court. x x x.

xxxx

MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. And there are cases when passports may not be granted or passports
already granted may be cancelled. If the amendment is approved, then passports may
not be cancelled unless it is ordered by the court. Is that the intention? x x x x

FR. BERNAS. Yes

MR. RODRIGO. But another right is involved here and that is to travel.

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate
the liberty of abode and or changing the same from the right to travel, because they
may necessitate different provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

xxxx

RESUMPTION OF SESSION

xxxx

THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized

The session is resumed.

FR. BERNAS. The proposal is amended to read:

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 MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment,
as amended. Is there any objection? (Silence) The Chair hears none; the amendment, as
amended, is approved.[85]
It is clear from the foregoing that the liberty of abode may only be impaired by a lawful
order of the court and, on the one hand, the right to travel may only be impaired by a
law that concerns national security, public safety or public health. Therefore, when the
exigencies of times call for a limitation on the right to travel, the Congress must respond
to the need by explicitly providing for the restriction in a law. This is in deference to the
primacy of the right to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative enactment.

Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,[86] the
Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the
Department of Labor and Employment, which temporarily suspended the deployment
of domestic and household workers abroad. The measure was taken in response to
escalating number of female workers abroad who were subjected to exploitative
working conditions, with some even reported physical and personal abuse. The Court
held that Department Order No. 1 is a valid implementation of the Labor Code,
particularly, the policy to "afford protection to labor." Public safety considerations
justified the restraint on the right to travel.

Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the
Court Administrator (OCA) vs. Wilma Salvacion P. Heusdens,[87] the Court enumerated
the statutes which specifically provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:

1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel
of an individual charged with the crime of terrorism even though such person is out on
bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the
Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of,
restrict the use of, or withdraw, a passport of a Filipino citizen.

3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the

provisions thereof, the [BI], in order to manage migration and curb trafficking in
persons, issued Memorandum Order Radir No. 2011-011, allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful
purpose of travel, including possible victims of human trafficking" from our ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as
amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue deployment permit to a specific
country that effectively prevents our migrant workers to enter such country.

5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-
Country Adoption Board may issue rules restrictive of an adoptee's right to travel "to
protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child."[88]
In any case, when there is a dilemma between an individual claiming the exercise of a
constitutional right vis-a-vis the state's assertion of authority to restrict the same, any
doubt must, at all times, be resolved in favor of the free exercise of the right, absent any
explicit provision of law to the contrary.

The issuance of DOJ Circular No. 41 has no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying the

authority from which the DOJ believed its power to restrain the right to travel
emanates. To begin with, there is no law particularly providing for the authority of the
secretary of justice to curtail the exercise of the right to travel, in the interest of national
security, public safety or public health. As it is, the only ground of the former DOJ
Secretary in restraining the petitioners, at that time, was the pendency of the
preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation
Committee on the complaint for electoral sabotage against them.[89]

To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which
underwent the scrutiny and concurrence of lawmakers, and submitted to the President
for approval. It is a mere administrative issuance apparently designed to carry out the
provisions of an enabling law which the former DOJ Secretary believed to be Executive
Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She
opined that DOJ Circular No. 41 was validly issued pursuant to the agency's rule-making
powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and
Section 50, Chapter 11, Book IV of the mentioned Code.

Indeed, administrative agencies possess quasi-legislative or rule-making powers, among

others. It is the "power to make rules and regulations which results in delegated
legislation that is within the confines of the granting statute and the doctrine of non-
delegability and separability of powers."[90] In the exercise of this power, the rules and
regulations that administrative agencies promulgate should be within the scope of the
statutory authority granted by the legislature to the administrative agency. It is required
that the regulation be germane to the objects and purposes of the law, and be not in
contradiction to, but in conformity with, the standards prescribed by law. They must
conform to and be consistent with the provisions of the enabling statute in order for
such rule or regulation to be valid.[91]

It is, however, important to stress that before there can even be a valid administrative
issuance, there must first be a showing that the delegation of legislative power is itself
valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions.[92]

A painstaking examination of the provisions being relied upon by the former DOJ
Secretary will disclose that they do not particularly vest the DOJ the authority to issue
DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of
WLOs and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. - It is the declared policy of the State to provide the
government with a principal law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice system in accordance with the
accepted processes thereof consisting in the investigation of the crimes, prosecution
of offenders and administration of the correctional system; implement the laws on the
admission and stay of aliens, citizenship, land titling system, and settlement of land
problems involving small landowners and member of indigenous cultural minorities; and
provide free legal services to indigent members of the society.

xxxx

Section 3. Powers and Functions. - to accomplish its mandate, the Department shall
have the following powers and functions:

(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system;
xxxx
(6) Provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned and controlled
 corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are mere general provisions
designed to lay down the purposes of the enactment and the broad enumeration of the
powers and functions of the DOJ. In no way can they be interpreted as a grant of power
to curtail a fundamental right as the language of the provision itself does not lend to
that stretched construction. To be specific, Section 1 is simply a declaration of policy,
the essence of the law, which provides for the statement of the guiding principle, the
purpose and the necessity for the enactment. The declaration of policy is most useful in
statutory construction as an aid in the interpretation of the meaning of the substantive
provisions of the law. It is preliminary to the substantive portions of the law and
certainly not the part in which the more significant and particular mandates are
contained. The suggestion of the former DOJ Secretary that the basis of the issuance of
DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not only
defeats logic but also the basic style of drafting a decent piece of legislation because it
supposes that the authors of the law included the operative and substantive provisions
in the declaration of policy when its objective is merely to introduce and highlight the
purpose of the law.

Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part
of the substantive portions of the act. Such provisions are available for clarification of
ambiguous substantive portions of the act, but may not be used to create ambiguity in
other substantive provisions."[93]

In the same way, Section 3 does not authorize the DOJ to issue WLOs and HDOs to
restrict the constitutional right to travel. There is even no mention of the exigencies
stated in the Constitution that will justify the impairment. The provision simply grants
the DOJ the power to investigate the commission of crimes and prosecute offenders,
which are basically the functions of the agency. However, it does not carry with it the
power to indiscriminately devise all means it deems proper in performing its functions
without regard to constitutionally-protected rights. The curtailment of a fundamental
right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned
provision of the law. Any impairment or restriction in the exercise of a constitutional
right must be clear, categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules and
regulations may be promulgated by an administrative body, as well as with respect to
what fields are subject to regulation by it. It may not make rules and regulations which
are inconsistent with the provisions of the Constitution or a statute, particularly the
statute it is administering or which created it, or which are in derogation of, or defeat,
the purpose of a statute.[94]
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which
simply provides for the types of issuances that administrative agencies, in general, may
issue. It does not speak of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary or head of agency. The
innocuous provision reads as follows:
Section 50. General Classification of Issuances. - The administrative issuances of
Secretaries and heads of bureaus, offices and agencies shall be in the form of circulars or
orders.

(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and

procedures promulgated pursuant to law, applicable to individuals and organizations
outside the Government and designed to supplement provisions of the law or to provide
means for carrying them out, including information relating thereto; and

(2) Orders shall refer to issuances directed to particular offices, officials, or employees,

concerning specific matters including assignments, detail and transfer of personnel, for
observance or compliance by all concerned. (Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the
memorandum of the former DOJ Secretary cannot justify the restriction on the right to
travel in DOJ Circular No. 41. The memorandum particularly made reference to
Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:

(1) Advise the President in issuing executive orders, regulations, proclamations and
other issuances, the promulgation of which is expressly vested by law in the
President relative to matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant
to the approved programs of governments;
(3) Promulgate rules and regulations necessary to carry out department objectives,
policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efficient administration of
the offices under the Secretary and for proper execution of the laws relative
thereto. These issuances shall not prescribe penalties for their violation, except
when expressly authorized by law;
xxxx
(9) Perform such other functions as may be provided by law. (Emphasis Ours)
It is indisputable that the secretaries of government agencies have the power to
promulgate rules and regulations that will aid in the performance of their functions. This
is adjunct to the power of administrative agencies to execute laws and does not require
the authority of a law. This is, however, different from the delegated legislative power
to promulgate rules of government agencies.

The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly
AASJS) et al. vs. Hon. Purisima et al.,[95] is illuminating:
The inherent power of the Executive to adopt rules and regulations to execute or
implement the law is different from the delegated legislative power to prescribe rules.
The inherent power of the Executive to adopt rules to execute the law does not require
any legislative standards for its exercise while the delegated legislative power requires
sufficient legislative standards for its exercise.

xxxx
Whether the rule-making power by the Executive is a delegated legislative power or an
inherent Executive power depends on the nature of the rule-making power involved. If
the rule-making power is inherently a legislative power, such as the power to fix tariff
rates, the rule-making power of the Executive is a delegated legislative power. In such
event, the delegated power can be exercised only if sufficient standards are prescribed
in the law delegating the power.

If the rules are issued by the President in implementation or execution of self-executory

constitutional powers vested in the President, the rule-making power of the President is
not a delegated legislative power, x x x. The rule is that the President can execute the
law without any delegation of power from the legislature. Otherwise, the President
becomes a mere figure-head and not the sole Executive of the Government.[96]
The questioned circular does not come under the inherent power of the executive
department to adopt rules and regulations as clearly the issuance of HDO and WLO is
not the DOJ's business. As such, it is a compulsory requirement that there be an existing
law, complete and sufficient in itself, conferring the expressed authority to the
concerned agency to promulgate rules. On its own, the DOJ cannot make rules, its
authority being confined to execution of laws. This is the import of the terms "when
expressly provided by law" or "as may be provided by law" stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined to filling in the gaps and
the necessary details in carrying into effect the law as enacted.[97] Without a clear
mandate of an existing law, an administrative issuance is ultra vires.

Consistent with the foregoing, there must be an enabling law from which DOJ Circular
No. 41 must derive its life. Unfortunately, all of the supposed statutory authorities relied
upon by the DOJ did not pass the completeness test and sufficient standard test. The
DOJ miserably failed to establish the existence of the enabling law that will justify the
issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in realizing its mandate
only begs the question. The purpose, no matter how commendable, will not obliterate
the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ must have the
best intentions in promulgating DOJ Circular No. 41, but the end will not justify the
means. To sacrifice individual liberties because of a perceived good is disastrous to
democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform,[98] the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there
be a valid objective; it is also necessary that the means employed to pursue it be in
keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the
nation who would deny him that right.[99]
The DOJ would however insist that the resulting infringement of liberty is merely
incidental, together with the consequent inconvenience, hardship or loss to the person
being subjected to the restriction and that the ultimate objective is to preserve the
investigative powers of the DOJ and public order.[100] It posits that the issuance ensures
the presence within the country of the respondents during the preliminary
investigation.[101] Be that as it may, no objective will ever suffice to legitimize desecration
of a fundamental right. To relegate the intrusion as negligible in view of the supposed
gains is to undermine the inviolable nature of the protection that the Constitution
affords.

Indeed, the DOJ has the power to investigate the commission of crimes and prosecute
offenders. Its zealousness in pursuing its mandate is laudable but more admirable when
tempered by fairness and justice. It must constantly be reminded that in the hierarchy
of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and
when weighed against each other, the scales of justice tilt towards the former.[102] Thus,
in Allado vs. Diokno,[103] the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people from vicious
acts which endanger the proper administration of justice; hence, the State has every
right to prosecute and punish violators of the law. This is essential for its self-
preservation, nay, its very existence. But this does not confer a license for pointless
assaults on its citizens. The right of the State to prosecute is not a carte blanche for
government agents to defy and disregard the rights of its citizens under the
Constitution.[104]
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to
allow the petitioners, who are under preliminary investigation, to exercise an
untrammelled right to travel, especially when the risk of flight is distinctly high will
surely impede the efficient and effective operation of the justice system. The absence of
the petitioners, it asseverates, would mean that the farthest criminal proceeding they
could go would be the filing of the criminal information since they cannot be
arraigned in absentia.[105]

The predicament of the DOJ is understandable yet untenable for relying on grounds
other what is permitted within the confines of its own power and the nature of
preliminary investigation itself. The Court, in Paderanga vs. Drilon,[106] made a
clarification on the nature of a preliminary investigation, thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. x x x A preliminary
investigation is not the occasion for the full and exhaustive display of the parties'
evidence; it is for the presentation of such evidence only as may engender a well
grounded belief that an offense has been committed and that the accused is probably
guilty thereof.[107]
It bears emphasizing that the conduct of a preliminary investigation is an implement of
due process which essentially benefits the accused as it accords an opportunity for the
presentation of his side with regard to the accusation.[108] The accused may, however,
opt to waive his presence in the preliminary investigation. In any case, whether the
accused responds to a subpoena, the investigating prosecutor shall resolve the
complaint within 10 days after the filing of the same.

The point is that in the conduct of a preliminary investigation, the presence of the
accused is not necessary for the prosecutor to discharge his investigatory duties. If the
accused chooses to waive his presence or fails to submit countervailing evidence, that is
his own lookout. Ultimately, he shall be bound by the determination of the prosecutor
on the presence of probable cause and he cannot claim denial of due process.

The DOJ therefore cannot justify the restraint in the liberty of movement imposed by
DOJ Circular No. 41 on the ground that it is necessary to ensure presence and
attendance in the preliminary investigation of the complaints. There is also no authority
of law granting it the power to compel the attendance of the subjects of a preliminary
investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory
power is simply inquisitorial and, unfortunately, not broad enough to embrace the
imposition of restraint on the liberty of movement.

That there is a risk of flight does not authorize the DOJ to take the situation upon itself
and draft an administrative issuance to keep the individual within the Philippine
jurisdiction so that he may not be able to evade criminal prosecution and consequent
liability. It is an arrogation of power it does not have; it is a usurpation of function that
properly belongs to the legislature.

Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized
act of the DOJ of empowering itself under the pretext of dire exigency or urgent
necessity. This action runs afoul the separation of powers between the three branches
of the government and cannot be upheld. Even the Supreme Court, in the exercise of its
power to promulgate rules is limited in that the same shall not diminish, increase, or
modify substantive rights.[109] This should have cautioned the DOJ, which is only one of
the many agencies of the executive branch, to be more scrutinizing in its actions
especially when they affect substantive rights, like the right to travel.

The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the
right to travel were found reasonable, i.e. New York v. O'Neill,[110] Kwong vs. Presidential
Commission on Good Government[111] and PASEI.

It should be clear at this point that the DOJ cannot rely on PASEI to support its position
for the reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not
an appropriate authority since the Court never ruled on the constitutionality of the
authority of the PCGG to issue HDOs in the said case. On the contrary, there was an
implied recognition of the validity of the PCGG's Rules and Regulations as the petitioners
therein even referred to its provisions to challenge the PCGG's refusal to lift the HDOs
issued against them despite the lapse of the period of its effectivity. The petitioners
never raised any issue as to the constitutionality of Section 2 of the PCGG Rules and
Regulations but only questioned the agency's non-observance of the rules particularly
on the lifting of HDOs. This is strikingly different from the instant case where the main
issue is the constitutionality of the authority of the DOJ Secretary to issue HDOs under
DOJ Circular No. 41.

Similarly, the pronouncement is New York does not lend support to the respondents'
case. In the said case, the respondent therein questioned the constitutionality of a
Florida statute entitled "Uniform Law to Secure the Attendance of Witnesses from
Within or Without a State in Criminal Proceedings," under which authority a judge of the
Court of General Sessions, New York County requested the Circuit Court of Dade County,
Florida, where he was at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury proceeding. The US
Supreme Court upheld the constitutionality of the law, ruling that every citizen, when
properly summoned, has the obligation to give testimony and the same will not amount
to violation of the freedom to travel but, at most, a mere temporary interference. The
clear deviation of the instant case from New York is that in the latter case there is a law
specifically enacted to require the attendance of the respondent to court proceedings to
give his testimony, whenever it is needed. Also, after the respondent fulfils his
obligation to give testimony, he is absolutely free to return in the state where he was
found or to his state of residence, at the expense of the requesting state. In contrast,
DOJ Circular No. 41 does not have an enabling law where it could have derived its
authority to interfere with the exercise of the right to travel. Further, the respondent is
subjected to continuing restraint in his right to travel as he is not allowed to go until he
is given, if he will ever be given, an ADO by the secretary of justice.

The DOJ cannot issue DOJ Circular No. 41 under the guise of police power

The DOJ's reliance on the police power of the state cannot also be countenanced. Police
power pertains to the "state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare."[112] "It may be said
to be that inherent and plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society."[113] Verily, the exercise of this
power is primarily lodged with the legislature but may be wielded by the President and
administrative boards, as well as the lawmaking bodies on all municipal levels, including
the barangay, by virtue of a valid delegation of power.[114]

It bears noting, however, that police power may only be validly exercised if (a) the
interests of the public generally, as distinguished from those of a particular class,
require the interference of the State, and (b) the means employed are reasonably
necessary to the attainment of the object sought to be accomplished and not unduly
oppressive upon individuals.[115]

On its own, the DOJ cannot wield police power since the authority pertains to Congress.
Even if it claims to be exercising the same as the alter ego of the President, it must first
establish the presence of a definite legislative enactment evidencing the delegation of
power from its principal. This, the DOJ failed to do. There is likewise no showing that the
curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably
necessary in order for it to perform its investigatory duties.

In any case, the exercise of police power, to be valid, must be reasonable and not
repugnant to the Constitution.[116] It must never be utilized to espouse actions that
violate the Constitution. Any act, however noble its intentions, is void if it violates the
Constitution.[117] In the clear language of the Constitution, it is only in the interest of
national security, public safety and public health that the right to travel may be
impaired. None one of the mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41.

DOJ Circular No. 41 transcends constitutional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious
infirmities that render it invalid. The apparent vagueness of the circular as to the
distinction between a HDO and WLO is violative of the due process clause. An act that is
vague "violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid and leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government
muscle."[118] Here, the distinction is significant as it will inform the respondents of the
grounds, effects and the measures they may take to contest the issuance against them.
Verily, there must be a standard by which a HDO or WLO may be issued, particularly
against those whose cases are still under preliminary investigation, since at that stage
there is yet no criminal information against them which could have warranted the
restraint.

Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it
emanates from the DOJ's assumption of powers that is not actually conferred to it. In
one of the whereas clauses of the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court
Administrator, clearly state that "[HDO] shall be issued only in criminal cases within the
exclusive jurisdiction of the [RTCs]," said circulars are, however, silent with respect to
cases falling within the jurisdiction of courts below the RTC as well as those pending
determination by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was
the supposed inadequacy of the issuances of this Court pertaining to HDOs, the more
pertinent of which is SC Circular No. 39-97.[119] It is the DOJ's impression that with the
silence of the circular with regard to the issuance of HDOs in cases falling within the
jurisdiction of the MTC and those still pending investigation, it can take the initiative in
filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake
such action since the issuance of HDOs is an exercise of this Court's inherent power "to
preserve and to maintain the effectiveness of its jurisdiction over the case and the
person of the accused."[120] It is an exercise of judicial power which belongs to the Court
alone, and which the DOJ, even as the principal law agency of the government, does not
have the authority to wield.

Moreover, the silence of the circular on the matters which are being addressed by DOJ
Circular No. 41 is not without good reasons. Circular No. 39-97 was specifically issued to
avoid indiscriminate issuance of HDOs resulting to the inconvenience of the parties
affected as the same could amount to an infringement on the right and liberty of an
individual to travel. Contrary to the understanding of the DOJ, the Court intentionally
held that the issuance of HDOs shall pertain only to criminal cases within the exclusive
jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of
the MTC and all other cases. The intention was made clear with the use of the term
"only." The reason lies in seeking equilibrium between the state's interest over the
prosecution of the case considering the gravity of the offense involved and the
individual's exercise of his right to travel. Thus, the circular permits the intrusion on the
right to travel only when the criminal case filed against the individual is within the
exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or
offenses that are punishable with imprisonment of more than six years. The exclusion of
criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain
to less serious offenses which is not commensurate with the curtailment of a
fundamental right. Much less is the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation since at that stage no
information has yet been filed in court against them. It is for these reasons that Circular
No. 39-97 mandated that FIDO may only be issued in criminal cases filed with the RTC
and withheld the same power from the MTC.

Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming
powers which have been withheld from the lower courts in Circular No. 39-97. In the
questioned circular, the DOJ Secretary may issue HDO against the accused in criminal
cases within the jurisdiction of the MTC[121] and against defendants, respondents and
witnesses in labor or administrative cases,[122] no matter how unwilling they may be. He
may also issue WLO against accused in criminal cases pending before the RTC,
[123]
 therefore making himself in equal footing with the RTC, which is authorized by law
to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO against
respondents in criminal cases pending preliminary investigation, petition for review or
motion for reconsideration before the DOJ.[124] More striking is the authority of the DOJ
Secretary to issue a HDO or WLO motu proprio, even in the absence of the grounds
stated in the issuance if he deems necessary in the interest of national security, public
safety or public health.[125]

It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too
obtrusive as it remains effective even after the lapse of its validity period as long as the
DOJ Secretary does not approve the lifting or cancellation of the same. Thus, the
respondent continually suffers the restraint in his mobility as he awaits a favorable
indorsement of the government agency that requested for the issuance of the HDO or
WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against him had
become functus officio with its expiration.

It did not also escape the attention of the Court that the DOJ Secretary has authorized
himself to permit a person subject of HDO or WLO to travel through the issuance of an
ADO upon showing of "exceptional reasons" to grant the same. The grant, however, is
entirely dependent on the sole discretion of the DOJ Secretary based on his assessment
of the grounds stated in the application.

The constitutional violations of DOJ Circular No. 41 are too gross to brush aside
particularly its assumption that the DOJ Secretary's determination of the necessity of
the issuance of HDO or WLO can take the place of a law that authorizes the restraint in
the right to travel only in the interest of national security, public safety or public health.
The DOJ Secretary has recognized himself as the sole authority in the issuance and
cancellation of HDO or WLO and in the determination of the sufficiency of the grounds
for an ADO. The consequence is that the exercise of the right to travel of persons
subject of preliminary investigation or criminal cases in court is indiscriminately
subjected to the discretion of the DOJ Secretary.

This is precisely the situation that the 1987 Constitution seeks to avoid—for an
executive officer to impose restriction or exercise discretion that unreasonably impair
an individual's right to travel- thus, the addition of the phrase, "as maybe provided by
law" in Section 6, Article III thereof. In Silverio, the Court underscored that this
phraseology in the 1987 Constitution was a reaction to the ban on international travel
imposed under the previous regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of an interested party.[126] The
qualifying phrase is not a mere innocuous appendage. It secures the individual the
absolute and free exercise of his right to travel at all times unless the more paramount
considerations of national security, public safety and public health call for a temporary
interference, but always under the authority of a law.

The subject WLOs and the restraint on the right to travel.

In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in
the wordings thereof. For better illustration, the said WLOs are hereby reproduced as
follows:
WLO No. ASM-11-237[127]
(Watchlist)

In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- x

ORDER

On 09 August 2011, Hon. Leila M. Dc Lima, Secretary of the Department of Justice issued
an order docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration
to include the name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.

It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by

the Department of Justice in connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder
Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or
Macapagl-Arroyo Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of the
Code of Ethical Standards for
Public Officials, and Qualified
Theft
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or
Macapagl-Arroyo Jocelyn Illegal use of Public Funds,
"Joc-Joc" Bolante, Ibarra Graft and Corruption,
Poliquit et al. Violation of The Omnibus
Election Code, Violation of the
Code of Ethical Standards for
Public Officials, and Qualified
Theft

Based on the foregoing and pursuant to Department of Justice Circular No. 41

(Consolidated Rules and Regulations Governing the Issuance and Implementation of
Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated 25 May
2010, we order the inclusion of the name GLORIA M. MACAPAGAL-ARROYO in the
Watchlist.

This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.

The Airport Operation Division and Immigration Regulation Division Chiefs shall
implement this Order.

Notify the Computer Section.

SO ORDERED.

09 August 2011 (Emphasis ours)

__________________________________

 Watchlist Order No. 2011-422[128]

In re: Issuance of Watchlist

Order against MA. GLORIA M. MACAPAGAL-ARROYO

AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this

Department in connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay versus Plunder
Gloria Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I, Chavez versus Plunder, Malversation and/or
Gloria Macapagal-Arroyo Illegal Use of OWWA Funds,
Graft and Corruption,
Violation of the Omnibus
Election Code, Violation of the
Code of Ethical Standards for
Public Officials, and Qualified
Theft
XVI-INV-11F-00238 Francisco I. Chavez versus Plunder, Malversation and/or
Gloria Macapagal-Arroyo Illegal Use of Public Funds,
Jocelyn "Joc-Joc" Bolante, Graft and Corruption,
Ibarra Poliquit et al. Violation of the Omnibus
Election Code, Violation of the
Code of Ethical Standards for
Public Officials, and Qualified
Theft

Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010
(Consolidated Rules and Regulations Governing the Issuance and Implementation of
Hold Departure Orders, Watchlist Orders, and Allow Departure Orders), the undersigned
hereby motu proprio issues a Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in
the Bureau of Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.

Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days
from issuance unless sooner terminated or extended.

SO ORDERED.

City of Manila, September 6, 2011. (Emphasis ours)

__________________________________

Watchlist Order (WLO)

No. 2011-573[129]

IN RE: Issuance of WLO against BENJAMIN ABALOS. SR. et al.

ORDER

Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010
(Consolidated Rules and Regulations Governing the Issuance and Implementation of
Hold Departure Orders, Watchlist Orders, and Allow Departure Orders), after careful
evaluation, finds the Application for the Issuance of WLO against the following
meritorious;

xxxx

12. MA. GLORIA M.MACAPAGAL-ARROYO

     Address: Room MB-2, House of Representatives
     Quezon City
 
x x x x 
 
Ground for WLO Pendency of the case,
Issuance: entitled "DOJ-COMELEC
Fact Finding Committee v.
Benjamin Abalos Sr., el
al." for Electoral
Sabotage/Omnibus
Election Code docketed as
DOJ-COMELEC Case No.
001-2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

    Address: Room MB-2, House of Representatives Quezon City

2. JOSE MIGUEL TUASON ARROYO

    Address: L.T.A. Bldg. 118 Perea St. Makati City
x x x x 
 
Ground for WLO Pendency of the case,
Issuance: entitled "Aquilino
Pimentel III v. Gloria
Macapagal-Arroyo, et Al."
for Electoral Sabotage
docketed as DOJ-
COMELEC Case No. 002-
2011.

Accordingly, the Commissioner of Immigration, Manila, is hereby-ordered to INCLUDE in

the Bureau of Immigration's Watchlist, the names of the above-named persons.

This Order is valid for a period of sixty (60) days from the date of its issuance unless
sooner terminated or otherwise extended.

SO ORDERED.
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R.
No. 197930 pertinently states:   
Hold Departure Order (HDO)
No. 2011-64[130]

In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL.

x ------------------------------------- x

ORDER

After a careful evaluation of the application, including the documents attached thereto,
for the issuance of Hold Departure Order (HDO) against the above-named persons filed
pursuant to this Department's Circular (D.C.) No. 41 (Consolidated Rules and Regulations
Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders) dated May 25, 2010, we find the application meritorious.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in

the Bureau of Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F.
GENUINO-SEE, ERWIN F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE"
F. KING, RENE C. FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B.
MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.

Name: EFRAIM C. GENUINO

Nationality: Filipino
Last known
No. 42 Lapu Lapu Street, Magallanes Village, Makati City
address:
Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt Practices Act,
Issuance: Plunder
Details of the Pending before the National Prosecution Service, Department of Justice
Case: (NPS Docket No. XV-INV-11F-00229
  Pending before the Office of the Ombudsman
  (Case No. CPL-C-11-1297)
  Pending before the National Prosecution Service, Department of Justice
  (I.S. No. XVI-INV-11G-00248)
Name: SHERYLL F. GENUINO-SEE
Nationality: Filipino
Last known
No. 32-a Paseo Parkview, Makati City
address:
Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt Practices Act,
Issuance: Plunder
Details of the
Pending before the National Prosecution Service, Department of Justice
Case:
(I.S. No. XVI-INV-11G-00248)
Name: ERWIN F. GENUINO
Nationality: Filipino
Last known
No. 5 J.P. Rizal Extension, COMEMBO, Makati City
address:
Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt Practices Act,
Issuance: Plunder
Details of the Pending before the National Prosecution Service, Department of Justice
Case: (NTS Docket No. XV-INV-11F-00229
Pending before the National Prosecution Service, Department of Justice
(I.S. No. XVI-INV-11G-00248)
xxxx

Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years
unless sooner terminated.

SO ORDERED. (Emphasis ours)

On its face, the language of the foregoing issuances does not contain an explicit
restraint on the right to travel. The issuances seemed to be a mere directive from to the
BI officials to include the named individuals in the watchlist of the agency. Noticeably,
however, all of the WLOs contained a common reference to DOJ Circular No. 41, where
the authority to issue the same apparently emanates, and from which the restriction on
the right to travel can be traced. Section 5 thereof provides, thus:
Section 5. HDO/WLO Lifting or Cancellation - In the lifting or cancellation of the
HDO/WLO issued pursuant to this Circular, the following shall apply:

(a) The HDO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the HDO as provided for in the preceding section
has already expired;
2. When the accused subject of the HDO has been allowed to leave the country
during the pendency of the case, or has been acquitted of the charge, or the
case in which the warrant/order of arrest was issued has been dismissed or the
warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of the
government wherein the presence of the alien subject of the HDO/WLO has
been dismissed by the court or by appropriate government agency, or the alien
has been discharged as a witness therein, or the alien has been allowed to
leave the country;
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding section
 has already expired;
2. When the accused subject of the WLO has been allowed by the court to leave
the country during the pendency of the case, or has been acquitted of the
charge; and
3. When the preliminary investigation is terminated, or when the petition for
review, or motion for reconsideration has been denied and/or dismissed.
xxxx
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in
the fact that under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek
permission to leave the country from the court during the pendency of the case against
him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the
case in which he is involved has been terminated.

In the same manner, it is apparent in Section 7 of the same circular that the subject of a
HDO or WLO cannot leave the country unless he obtains an ADO. The said section reads
as follows:
Section 7. Allow Departure Order (ADO) - Any person subject of HDO/WLO issued
pursuant to this Circular who intends, for some exceptional reasons, to leave the
country may, upon application under oath with the Secretary of Justice, be issued an
ADO.

The ADO may be issued upon submission of the following requirements:

(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and
containing an undertaking to immediately report to the DOJ upon return; and

(b) Authority to travel or travel clearance from the court or appropriate government
office where the case upon which the issued HDO/WLO was based is pending, or from
the investigating prosecutor in charge of the subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the
country, the only plausible conclusion that can be made is that its mere issuance
operates as a restraint on the right to travel. To make it even more difficult, the
individual will need to cite an exceptional reason to justify the granting of an ADO.

The WLO also does not bear a significant distinction from a HDO, thereby giving the
impression that they are one and the same or, at the very least, complementary such
that whatever is not covered in Section 1,[131] which pertains to the issuance of HDO, can
conveniently fall under Section 2,[132] which calls for the issuance of WLO. In any case,
there is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of
Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national
security, public safety or public health. With this all-encompassing provision, there is
nothing that can prevent the Secretary of Justice to prevent anyone from leaving the
country under the guise of national security, public safety or public health.

The exceptions to the right to travel are limited to those stated in Section 6, Article III
of the Constitution

The DOJ argues that Section 6, Article III of the Constitution is not an exclusive
enumeration of the instances wherein the right to travel may be validly impaired.[133] It
cites that this Court has its own administrative issuances restricting travel of its
employees and that even lower courts may issue HDO even on grounds/outside of what
is stated in the Constitution.[134]

The argument fails to persuade.

It bears reiterating that the power to issue HDO is inherent to the courts. The courts
may issue a HDO against an accused in a criminal case so that he may be dealt with in
accordance with law.[135] It does not require legislative conferment or constitutional
recognition; it co-exists with the grant of judicial power. In Defensor-Santiago vs.
Vasquez,[136] the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent
powers are such powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or essential to the existence, dignity and functions of the court, as well as to
the due administration of justice; or are directly appropriate, convenient and suitable to
the execution of their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants.[137]
The inherent powers of the courts are essential in upholding its integrity and largely
beneficial in keeping the people's faith in the institution by ensuring that it has the
power and the means to enforce its jurisdiction.

As regards the power of the courts to regulate foreign travels, the Court, in Leave
Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987
Constitution provides that the Supreme Court shall have administrative supervision
over all courts and the personnel thereof. This provision empowers the Court to
oversee all matters relating to the effective supervision and management of all courts
and personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the
Office of the President, dated July 31, 1986, considers the Supreme Court exempt and
with authority to promulgate its own rules and regulations on foreign travels. Thus, the
Court came out with OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to
faithfully adhere to, and abide with, the law and the corresponding office rules and
regulations. These rules and regulations, to which one submits himself or herself, have
been issued to guide the government officers and employees in the efficient
performance of their obligations. When one becomes a public servant, he or she
assumes certain duties with their concomitant responsibilities and gives up some rights
like the absolute right to travel so that public service would not be prejudiced.[138]
It is therefore by virtue of its administrative supervision over all courts and personnel
that this Court came out with OCA Circular No. 49-2003, which provided for the
guidelines that must be observed by employees of the judiciary seeking to travel
abroad. Specifically, they are required to secure a leave of absence for the purpose of
foreign travel from this Court through the Chief Justice and the Chairmen of the
Divisions, or from the Office of the Court Administrator, as the case maybe. This is "to
ensure management of court dockets and to avoid disruption in the administration of
justice."[139]
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation
of the employee's leave for purpose of foreign travel which is necessary for the orderly
administration ofjustice. To "restrict" is to restrain or prohibit a person from doing
something; to "regulate" is to govern or direct according to rule.[140] This regulation
comes as a necessary consequence of the individual's employment in the judiciary, as
part and parcel of his contract in joining the institution. For, if the members of the
judiciary are at liberty to go on leave any time, the dispensation ofjustice will be
seriously hampered. Short of key personnel, the courts cannot properly function in the
midst of the intricacies in the administration of justice. At any rate, the concerned
employee is not prevented from pursuing his travel plans without complying with OCA
Circular No. 49-2003 but he must be ready to suffer the consequences of his non-
compliance.

The same ratiocination can be said of the regulations of the Civil Service Commission
with respect to the requirement for leave application of employees in the government
service seeking to travel abroad. The Omnibus Rules Implementing Book V of E.O. No.
292 states the leave privileges and availment guidelines for all government employees,
except those who are covered by special laws. The filing of application for leave is
required for purposes of orderly personnel administration. In pursuing foreign travel
plans, a government employee must secure an approved leave of absence from the
head of his agency before leaving for abroad.

To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order
(MO) No. 26 dated July 31, 1986, provided the procedure in the disposition of requests
of government officials and employees for authority to travel abroad. The provisions of
this issuance were later clarified in the Memorandum Circular No. 18 issued on October
27, 1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued, streamlining the
procedure in the disposition of requests of government officials and employees for
authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees
seeking authority to travel abroad shall henceforth seek approval from their
respective heads of agencies, regardless of the length of their travel and the number of
delegates concerned. For the purpose of this paragraph, heads of agencies refer to the
Department Secretaries or their equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was deemed necessary
"to promote efficiency and economy in the government service."[141] The objective was
clearly administrative efficiency so that government employees will continue to render
public services unless they are given approval to take a leave of absence in which case
they can freely exercise their right to travel. It should never be interpreted as an
exception to the right to travel since the government employee during his approved
leave of absence can travel wherever he wants, locally or abroad. This is no different
from the leave application requirements for employees in private companies.

The point is that the DOJ may not justify its imposition of restriction on the right to
travel of the subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its
claim, it does not have inherent power to issue HDO, unlike the courts, or to restrict the
right to travel in anyway. It is limited to the powers expressly granted to it by law and
may not extend the same on its own accord or by any skewed interpretation of its
authority.
The key is legislative enactment

The Court recognizes the predicament which compelled the DOJ to issue the questioned
circular but the solution does not lie in taking constitutional shortcuts. Remember that
the Constitution "is the fundamental and paramount law of the nation to which all other
laws must conform and in accordance with which all private rights are determined and
all public authority administered."[142] Any law or issuance, therefore, must not
contradict the language of the fundamental law of the land; otherwise, it shall be struck
down for being unconstitutional.

Consistent with the foregoing, the DOJ may not promulgate rules that have a negative
impact on constitutionally-protected rights without the authority of a valid law. Even
with the predicament of preventing the proliferation of crimes and evasion of criminal
responsibility, it may not overstep constitutional boundaries and skirt the prescribed
legal processes.

That the subjects of DOJ Circular No. 41 are individuals who may have committed a
wrong against the state does not warrant the intrusion in the enjoyment of their basic
rights. They are nonetheless innocent individuals and suspicions on their guilt do not
confer them lesser privileges to enjoy. As emphatically pronounced in Secretary of
National Defense vs. Manalo, et al.,[143] the constitution is an overarching sky that covers
all in its protection. It affords protection to citizens without distinction. Even the most
despicable person deserves the same respect in the enjoyment of his rights as the
upright and abiding.

Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The
resolution of the issues in the instant petitions was partly aimed at encouraging the
legislature to do its part and enact the necessary law so that the DOJ may be able to
pursue its prosecutorial duties without trampling on constitutionally-protected rights.
Without a valid legislation, the DOJ's actions will perpetually be met with legal hurdles
to the detriment of the due administration of justice. The challenge therefore is for the
legislature to address this problem in the form of a legislation that will identify
permissible intrusions in the right to travel. Unless this is done, the government will
continuously be confronted with questions on the legality of their actions to the
detriment of the implementation of government processes and realization of its
objectives.

In the meantime, the DOJ may remedy its quandary by exercising more vigilance and
efficiency in the performance of its duties. This can be accomplished by expediency in
the assessment of complaints filed before its office and in the prompt filing of
information in court should there be an affirmative finding of probable cause so that it
may legally request for the issuance of HDO and hold the accused for trial. Clearly, the
solution lies not in resorting to constitutional shortcuts but in an efficient and effective
performance of its prosecutorial duties.

The Court understands the dilemma of the government on the effect of the declaration
of unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may
be utilized by suspected criminals, especially the affluent ones, to take the opportunity
to immediately leave the country. While this is a legitimate concern, it bears stressing
that the government is not completely powerless or incapable of preventing their
departure or having them answer charges that may be subsequently filed against them.
In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No.
(R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants the
Secretary of Foreign Affairs or any of the authorized consular officers the authority to
issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the
circumstances mentioned in Section 4[144] thereof. Mr. Justice Tijam, on the other hand,
mentioned Memorandum Circular No. 036, which was issued pursuant to R.A. No. 9208
or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or
the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold
the departure of suspected traffickers or trafficked individuals. He also noted that the
Commissioner of BI has the authority to issue a HDO against a foreigner subject of
deportation proceedings in order to ensure his appearance therein. Similarly, the
proposal of Mr. Justice Velasco for the adoption of new set of rules which will allow the
issuance of a precautionary warrant of arrest offers a promising solution to this
quandary. This, the Court can do in recognition of the fact that laws and rules of
procedure should evolve as the present circumstances require.

Contempt charge against respondent De Lima

It is well to remember that on November 18, 2011, a Resolution[145] was issued requiring

De Lima to show cause why she should not be disciplinarily dealt or be held in contempt
for failure to comply with the TRO issued by this Court.

In view, however, of the complexity of the facts and corresponding full discussion that it
rightfully deserves, the Court finds it more fitting to address the same in a separate
proceeding. It is in the interest of fairness that there be a complete and exhaustive
discussion on the matter since it entails the imposition of penalty that bears upon the
fitness of the respondent as a member of the legal profession. The Court, therefore,
finds it proper to deliberate and resolve the charge of contempt against De Lima in a
separate proceeding that could accommodate a full opportunity for her to present her
case and provide a better occasion for the Court to deliberate on her alleged
disobedience to a lawful order.

WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41

is hereby declared UNCONSTITUTIONAL. All issuances which were released pursuant
thereto are hereby declared NULL and VOID.

The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated

November 28, 2011, which required respondent Leila De Lima to show cause why she
should not be cited in contempt, as a separate petition.

SO ORDERED.

Sereno, C. J., on indefinite leave.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe, Jardeleza, Martires,
Tijam, and Gesmundo, JJ., concur.
Carpio, J., See Concurring Opinion.
Velasco, Jr., J., See Separate Concurring Opinion.
Leonen, J., See Separate Opinion.
Caguioa, J., no part.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on April 17, 2018 a Decision/Resolution, copy attached herewith,
was rendered by the Supreme Court in the above-entitled cases, the original of which
was received by this Office on May 9, 2018 at 2:50 p.m.

Very truly yours,

(SGD)
EDGAR O. ARICHETA
  Clerk of Court

[1]
 Rollo (G.R. No. 199034), Volume I, pp. 45-46.

[2]
 Id. at 47-48.

[3]
 Id. at 49-58.

[4]
 Id. at 106-116.

[5]
 Rollo (G.R. No. 197930), pp. 30-35.

[6]
 Rollo (G.R. No. 199034), Volume III, pp. 901-902.

[7]
 Id. at 902.

[8]
 Id.

[9]
 Id. at 903.

[10]
 Id.

[11]
 Rollo (G.R. No. 199034), Volume I, pp. 45-46.

[12]
 Id. at 47-48.

[13]
 Rollo (G.R. No. 199034), Volume III, p. 904.

[14]
 Id.

[15]
 Id.
[16]
 Id.

[17]
 Id. at 905.

[18]
 Id. at 905-906.

[19]
 Id. at 1028.

[20]
 Rollo (G.R. No. 199034), Volume I, p. 76.

[21]
 Id. at 82-83.

[22]
 Id. at 86.

[23]
 Id. at 68-75.

[24]
 Rollo (G.R. No. 199034), Volume III, p. 908.

[25]
 Id. at 909.

[26]
 Id.

[27]
 Rollo (G.R. No. 199034), Volume I, pp. 122-132.

[28]
 Id. at 110, 112, 113-114, 116.

[29]
 Id. at 89-104; Rollo (G.R. No. 199046), pp. 59-70.

[30]
 Id. at 102-103; id. at 68.

[31]
 Rollo (G.R. No. 199034), Volume I, pp. 133-174.

[32]
 Id. at 189-206.

[33]
 Id. at 208-210.

[34]
 Id. at 208-209.

[35]
 Id. at 337-339; 344-345.

[36]
 Id. at 347.

[37]
 Id. at 348.

[38]
 Id. at 349-350.

[39]
 Id. at 342.

[40]
 Id. at 367.
[41]
 Id. at 364-375.

[42]
 Id. at 369.

[43]
 Id. at 382-384.

[44]
 Id. at 288-323.

[45]
 Id. at 311.

[46]
 Id. at 318-319.

[47]
 Id. at 394-398.

[48]
 Id. at 394-395.

[49]
 Rollo (G.R. No. 199034), Volume II, pp. 525-527.

[50]
 Id. at 518-524.

[51]
 Id. at 519-521.

[52]
 Rollo, (G.R. No. 199034), Volume III, pp. 1017-1018.

[53]
 Id. at 914.

[54]
 Rollo (G.R. No. 197930), pp. 30-35.

[55]
 Id. at 7-8.

[56]
 Id. at 36-42.

[57]
 Id. at 43-45.

[58]
 Id. at 417.

[59]
 Rollo (G.R. No. 199034), Volume III, p. 921.

[60]
 Id. at 923.

[61]
 Id.

[62]
 The 1987 CONSTITUTION, Article VIII, Sec. 1.

[63]
 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget and
Management, 686 Phil. 357, 369 (2012).

[64]
 Prof. David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 753 (2006).
[65]
 Id.

[66]
 228 Phil. 193, 211 (1986).

[67]
 Id. at 199.

[68]
 Supra note 64, at 809.

[69]
 Id. at 754.

[70]
 Tawang Multi-Purpose Cooperative v. La Trinidad Water District, 661 Phil. 390, 403
(2011).

[71]
 Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 399
(1988).

[72]
 Supra.

[73]
 Id. at 399.

[74]
 Jesus P. Morfe v. Amelito R. Mutuc, 130 Phil. 415, 430 (1968).

[75]
 Kent v. Dulles, 357 U.S. 116.

[76]
 Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 168.

[77]
 39 Phil. 778, 812 (1919).

[78]
 273 Phil. 128, 135 (1991).

[79]
 Id. at 133-134.

[80]
 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 2003 Edition, pp. 367-368.

[81]
 Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 172.

[82]
 Records of the Constitutional Commission, Volume I, p. 674.

[83]
 Id. at 715.

[84]
 Id. at 677.

[85]
 Id. at 764-765.

[86]
 Supra note 71, at 405.

[87]
 678 Phil. 328 (2011).
[88]
 Id. at 339-340.

[89]
 Rollo (G.R. No. 199034), Volume III, p. 922.
 
[90]
 Holy Spirit Homeowners Association, Inc. v. Secretary Michael Defensor, 529 Phil. 573,
585 (2006).

[91]
 SMART Communications, Inc. v National Telecommunications Commission, 456 Phil.
145, 156 (2003).

[92]
 William C. Dagan v. Philippine Racing Commission, 598 Phil. 406, 417 (2009).

[93]
 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, 971 N.E.2d 1195, 2012 Ill App. LEXIS
506, 361 Ill. Dec. 673, 2012 WL 2371249 (Ill. App. Ct. 2d Dist. 2012)

[94]
 SMART Communications, Inc. v. National Telecommunications Commission, supra
note 91, at 156.

[95]
 584 Phil. 246 (2008) [Carpio, J., Separate Concurring Opinion].

[96]
 Id. at 296-297.

[97]
 Manila Electric Company v. Spouses Edilo and Felicidad Chita, 637 Phil. 80, 98 (2010).

[98]
 256 Phil. 777 (1989).

[99]
 Id. at 809.

[100]
 Rollo (G.R. No. 199034), Volume III, pp. 942.

[101]
 Id. at 939.

[102]
 Allado v. Diokno, 302 Phil. 213, 238 (1994).

[103]
 Supra.

[104]
 Id. at 238.

[105]
 Rollo (G.R. No. 199034), Volume III, p. 943.

[106]
 273 Phil. 290 (1991).

[107]
 Id. at 299.

[108]
 Ocampo v. Judge Abando, et al., 726 Phil. 441, 459 (2014).

[109]
 1987 CONSTITUTION, Article VIII, Section 5(5).
[110]
 359 U.S. 1 (1959).

[111]
 240 Phil. 219 (1987).

[112]
 Philippine Association of Service Exporters, Inc. v. Hon. Franklin M. Drilon, supra note
73, at 398.

[113]
 Id. at 399.

[114]
 Executive Secretary v. Southwing Heavy Industries, Inc., 518 Phil. 103, 117 (2006).

[115]
 Department of Education, Culture and Sports v. Roberto Rey Sandiego, 259 Phil.
1016, 1021 (1989).

[116]
 Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 557
Phil. 121, 140 (2007).

[117]
 Tawang Multi-Purpose Cooperative v. La Trinidad Water District, supra note 70, at
406.

[118]
 James M. Imbong v. Hon. Paquito N. Ochoa, 732 Phil. 1, 108-109 (2014).

[119]
 Guidelines in the Issuance of Hold-Departure Orders.

[120]
 Miriam Defensor Santiago v. Conrado M. Vasquez, 291 Phil. 664, 680 (1993).

[121]
 Section 1(a). DOJ Circular No. 41.

[122]
 Section 1(b). DOJ Circular No. 41.

[123]
 Section 2(a). DOJ Circular No. 41.

[124]
 Section 2(b). DOJ Circular No. 41.

[125]
 Sections 1(c) and 2(c), DOJ Circular No. 41.

[126]
 Supra note 78, at 133-134 (1991).

[127]
 Rollo (G.R. No. 199034), Volume I, pp. 45-46.
 
[128]
 Id. at 47-48.

[129]
 Id. at 49-59.

[130]
 Rollo (G.R. No. 197930), pp. 30-35.

[131]
 Section 1. Hold Departure Order. - The Secretary of Justice may issue an HDO under
any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal cases falling within the
jurisdiction of courts below the Regional Trial Courts (RTCs).

If the case against the accused is pending trial, the application under oath of an
interested party must be supported by (a) a certified true copy of the complaint or
information and

(b) a Certification from the Clerk of Court concerned that criminal case is still pending.

(b) Against the alien whose presence is required either as a defendant, respondent, or
witness in a civil or labor case pending litigation, or any case before an administrative
agency of the government.

The application under oath of an interested party must be supported by (a) a certified
true copy of the subpoena or summons issued against the alien and (b) a certified true
copy complaint in civil, labor or administrative case where the presence of the alien is
required.

(c) The Secretary of Justice may likewise issue an HDO against any person, either motu
proprio, or upon the request by the Head of a Department of the Government; the head
of a constitutional body or commission; the Chief Justice of the Supreme Court for the
Judiciary; the Senate President or the House Speaker for the Legislature, when the
adverse party is the Government or any of its agencies or instrumentalities, or in the
interest of national security, public safety or public health.

[132]
 Section 2. Watchlist Order. - The Secretary of Justice may issue a WLO, under any of
the following instances:

(a) Against the accused, irrespective of nationality, in criminal cases pending trial before
the Regional Trial Court.

The application under oath of an interested party must be supported by (a) certified
true copy of an Information filed with the court, (b) a certified true copy of the
Prosecutor's Resolution; and (c) a Certification from the Clerk of Court concerned that
criminal case is still pending.

(b) Against the respondent, irrespective of nationality, in criminal cases pending

preliminary investigation, petition for review, or motion for reconsideration before the
Department of Justice or any of its provincial or city prosecution offices.

The application under oath of an interested party must be supported by (a) certified
true copy of the complaint filed, and (b) a Certification from the appropriate
prosecution office concerned that the case is pending preliminary investigation, petition
for review, or motion for reconsideration, as the case may be.

(c) The Secretary of Justice may likewise issue a WLO against any person, either motu
proprio, or upon the request of any government agency, including commissions, task
forces or similar entities created by the Office of the President, pursuant to the "Anti-
Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any
investigation being conducted by it, or in the interest of national security, public safety
or public health.

[133]
 Rollo (G.R. No. 199034), Volume III, p. 971.

[134]
 Id. at 975.

[135]
 Silverio v. Court of Appeals, supra note 78, at 133-134.

[136]
 Miriam Defensor Santiago v. Conrado M. Vasquez, supra note 120.

[137]
 Id. at 679.

[138]
 Leave Division-Office of Administrative Services-Office of the Court Administrator v.
Wilma Sahacion Heusdens, supra note 87, at 341-342.

[139]
 Office of the Administrative Services-Office of the Court Administrator v. Judge
Ignacio B. Macarine, 691 Phil. 217, 222 (2012).

[140]
 Id.

[141]
 Executive Order No. 6 dated March 12, 1986 as amended by Memorandum Order
(MO) No. 26 dated July 31, 1986.

[142]
 Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 464 (2010).

[143]
 589 Phil. 1, 10 (2008).

SEC. 4. Authority to Issue, Deny, Restrict, or Cancel. - Upon the application of any
qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized
consular officer may issue passports in accordance with this Act.

Philippine consular officers in a foreign country shall be authorized by the Secretary to

issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in
accordance with the provisions of this Act.

In the interest of national security, public safety and public health, the Secretary or any
of the authorized consular officers may, after due hearing and in their proper discretion,
refuse to issue a passport, or restrict its use or withdraw or cancel a passport; Provided,
however, That such act shall not mean a loss or doubt on the person's
citizenship: Provided, further, That the issuance of a passport may not be denied if the
safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or
cancellation of a passport would not prevent the issuance of a Travel Document to allow
for a safe return journey by a Filipino to the Philippines.

[145]
 Rollo (G.R. No. 199034), Volume I, pp. 394-397.

CONCURRING OPINION
CARPIO, Acting C.J.:

I concur.

The constitutionality of the assailed administrative circular remains justiciable.

Preliminarily, the consolidated petitions continue to present a justiciable controversy.

Neither the expiration of the watchlist orders issued by Leila M. De Lima (respondent) as
former Secretary of Justice nor the filing of Information for electoral sabotage against
petitioner Gloria Macapagal-Arroyo (GMA) rendered the cases moot.

A case becomes moot when it ceases to present a justiciable controversy such that its
adjudication would not yield any practical value or use.[1] Where the petition is one
for certiorari seeking the nullification of an administrative issuance for having been
issued with grave abuse of discretion, obtaining the other reliefs prayed for in the
course of the proceedings will not render the entire petition moot altogether.
In COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on Elections
(COMELEC),[2] the Court thus explained:
A moot and academic case is one that ceases to present a justiciable controversy
because of supervening events so that a declaration thereon would be of no practical
use or value.

In the present case, while the COMELEC counted and tallied the votes in favor of
COCOFED showing that it failed to obtain the required number of votes, participation in
the 2013 elections was merely one of the reliefs COCOFED prayed for. The validity of the
COMELEC's resolution, cancelling COCOFED's registration, remains a very live issue that
is not dependent on the outcome of the elections.[3] (Citations omitted)
Similarly, where an accused assails via certiorari the judgment of conviction rendered by
the trial court, his subsequent release on parole will not render the petition academic.
[4]
 Precisely, if the sentence imposed upon him is void for lack of jurisdiction, the accused
should not have been paroled, but unconditionally released since his detention was
illegal.[5] In the same vein, even when the certification election sought to be enjoined
went on as scheduled, a petition for certiorari does not become moot considering that
the petition raises jurisdictional errors that strike at the very heart of the validity of the
certification election itself.[6] Indeed, an allegation of a jurisdictional error is a justiciable
controversy that would prevent the mootness of a special civil action for certiorari.[7]

Here, the consolidated petitions for certiorari and prohibition assail the constitutionality

of Department of Justice (DOJ) Circular No. 041-10,[8] on which respondent based her
issuance of watchlist and hold-departure orders against petitioners. Notably, DOJ
Circular No. 041-10 was not issued by respondent herself, but by Alberto C. Agra as then
Acting Secretary of Justice during the Arroyo Administration. It became effective on 2
July 2010.[9] In fact, the assailed issuance remains in effect. To be sure, whether the
watchlist and hold-departure orders issued by respondent against petitioners
subsequently expired or were lifted is not determinative of the constitutionality of the
circular. Hence, the Court is duty-bound to pass upon the constitutionality of DOJ
Circular No. 041-10, being a justiciable issue rather than an exception to the doctrine of
mootness.
DOJ Circular No. 041-10 is an invalid impairment of the right to travel, and therefore,
unconstitutional.

Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10 violates
the constitutional right to travel.

Section 6, Article III of the Constitution reads:

SEC. 6. 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. (Emphasis supplied)
As above-quoted, the right to travel is not absolute. However, while it can be restricted,
the only permissible grounds for restriction are national security, public safety, and
public health, which grounds must at least be prescribed by an act of Congress. In only
two .instances can the right to travel be validly impaired even without a statutory
authorization. The first is when a court forbids the accused from leaving Philippine
jurisdiction in connection with a pending criminal case.[10] The second is when Congress,
pursuant to its power of legislative inquiry, issues a subpoena or arrest order against a
person.[11]

The necessity for a legislative enactment expressly providing for a valid impairment of
the right to travel finds basis in no less than the fundamental law of the land. Under
Section 1, Article VI of the Constitution, the legislative power is vested in Congress.
Hence, only Congress, and no other entity or office, may wield the power to make,
amend, or repeal laws.[12]

Accordingly, whenever confronted with provisions interspersed with phrases like "in
accordance with law" or "as may be provided by law," the Court turns to acts of
Congress for a holistic constitutional construction. To illustrate, in interpreting the
clause "subject to such limitations as may be provided by law" in relation to the right to
information, the Court held in Gonzales v. Narvasa[13] that it is Congress that will
prescribe these reasonable conditions upon the access to information:
The right to information is enshrined in Section 7 of the Bill of Rights which provides
that —
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.
Under both the 1973 and 1987 Constitution, this is a self-executory provision which can
be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service
Commission, wherein the Court classified the right to information as a public right and
"when a mandamus proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that the petitioner is a citizen, and
therefore, part of the general 'public' which possesses the right." However, Congress
may provide for reasonable conditions upon the access to information. Such
limitations were embodied in Republic Act No. 6713, otherwise known as the "Code of
Conduct and Ethical Standards for Public Officials and Employees," which took effect on
March 25, 1989. This law provides that, in the performance of their duties, all public
officials and employees are obliged to respond to letters sent by the public within fifteen
(15) working days from receipt thereof and to ensure the accessibility of all public
documents for inspection by the public within reasonable working hours, subject to the
reasonable claims of confidentiality.[14] (Emphasis supplied; Citations omitted)
In Tondo Medical Center Employees Association v. Court of Appeals,[15] the Court made a
jurisprudential survey on the interpretation of constitutional provisions that are not self-
executory and held that it is Congress that will breathe life into these provisions:
As a general rule, the provisions of the Constitution are considered self-executing, and
do not require future legislation for their enforcement. For if they are not treated as
self-executing, the mandate of the fundamental law can be easily nullified by the
inaction of Congress. However, some provisions have already been categorically
declared by this Court as non self-executing.

In Tañada v. Angara, the Court specifically set apart the sections found under Article II
of the 1987 Constitution as non self-executing and ruled that such broad principles need
legislative enactments before they can be implemented:
By its very title, Article II of the Constitution is a "declaration of principles and state
policies." x x x These principles in Article II are not intended to be self-
executing principles ready for enforcement through the courts. They are used by the
judiciary as aids or as guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws.
In Basco v. Philippine Amusement and Gaining Corporation, this Court declared that
Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV
of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of
Finance, the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the
Constitution as moral incentives to legislation, not as judicially enforceable rights.
These provisions, which merely lay down a general principle, are distinguished from
other constitutional provisions as non self-executing and, therefore, cannot give rise to a
cause of action in the courts; they do not embody judicially enforceable constitutional
rights.

Some of the constitutional provisions invoked in the present case were taken from
Article II of the Constitution — specifically, Sections 5, 9, 10, 11, 13, 15 and 18 — the
provisions of which the Court categorically ruled to be non self-executing in the
aforecited case of Tañada v. Angara.[16] (Emphasis supplied; citations omitted)
In Ang Bagong Bayani-OFW Labor Party v. COMELEC,[17] the Court construed the
constitutional provisions on the party-list system and held that the phrases "in
accordance with law" and "as may be provided by law" authorized Congress "to sculpt in
granite the lofty objective of the Constitution," to wit:
That political parties may participate in the party-list elections does not mean, however,
that any political party — or any organization or group for that matter — may do so. The
requisite character of these parties or organizations must be consistent with the
purpose of the party-list system, as laid down in the Constitution and RA 7941. Section
5, Article VI of the Constitution, provides as follows:
"(1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral parties or
organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number
of representatives including those under the party list. For three consecutive terms after
the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector."
xxxx

The foregoing provision on the party-list system is not self-executory. It is, in fact,
interspersed with phrases like "in accordance with law" or "as may be provided by
law"; it was thus up to Congress to sculpt in granite the lofty objective of the
Constitution. x x x.[18] (Italicization in the original; boldfacing supplied)
Unable to cite any specific law on which DOJ Circular No. 041-10 is based, respondent
invokes Executive Order No. 292, otherwise known as the Revised Administrative Code
of 1987. In particular, respondent cites the DOJ's mandate to "investigate the
commission of crimes" and "provide immigration x x x regulatory services," as well as
the DOJ Secretary's rule-making power.[19]

I disagree.

In the landmark case of Ople v. Torres,[20] an administrative order was promulgated

restricting the right to privacy without a specific law authorizing the restriction. The
Office of the President justified its legality by invoking the Revised Administrative Code
of 1987. The Court rejected the argument and nullified the assailed issuance for being
unconstitutional as the Revised Administrative Code of 1987 was too general a law to
serve as basis for the curtailment of the right to privacy, thus:
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere
administrative order but a law and hence, beyond the power of the President to issue.
He alleges that A.O. No. 308 establishes a system of identification that is all-
encompassing in scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between
the power of the Legislature to make laws and the power of the Executive to execute
laws will disturb their delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to another will be given a
stricter scrutiny by this Court.

xxxx

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
appropriate to be covered by an administrative order. An administrative order is:
"Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."
An administrative order is an ordinance issued by the President which relates to specific
aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out the
legislative policy. We reject the argument that A.O. No. 308 implements the legislative
policy of the Administrative Code of 1987. The Code is a general law and "incorporates
in a unified document the major structural, functional and procedural principles of
governance" and "embodies changes in administrative structures and procedures
designed to serve the people." The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the Distribution of Powers of
the three branches of Government, Book III on the Office of the President, Book IV on
the Executive Branch, Book V on the Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books contain
provisions on the organization, powers and general administration of the executive,
legislative and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the organization and
functions of the Constitutional Commissions and other constitutional bodies, the rules
on the national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers
both the internal administration of government, i.e., internal organization, personnel
and recruitment, supervision and discipline, and the effects of the functions performed
by administrative officials on private individuals or parties outside government.
[21]
 (Citations omitted)
Indeed, EO 292 is a law of general application.[22] Pushed to the hilt, the argument of
respondent will grant carte blanche to the Executive in promulgating rules that curtail
the enjoyment of constitutional rights even without the sanction of Congress. To repeat,
the Executive is limited to executing the law. It cannot make, amend or repeal a law,
much less a constitutional provision.

For the same reason, in the Court's jurisprudence concerning the overseas travel of
court personnel during their approved leaves of absence and with no pending criminal
case before any court, I have consistently maintained that only a law, not administrative
rules, can authorize the Court to impose administrative sanctions for the employee's
failure to obtain a travel permit:
Although the constitutional right to travel is not absolute, it can only be restricted in the
interest of national security, public safety, or public health, as may be provided by law.
As held in Silverio v. Court of Appeals:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while
the liberty of travel may be impaired even without court order, the appropriate
executive officers or administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by law," a limitive phrase which
did not appear in the 1973 text x x x. Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international travel imposed under the
previous regime when there was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party x x x.
The constitutional right to travel cannot be impaired without due process of law. Here,
due process of law requires the existence of a law regulating travel abroad, in the
interest of national security, public safety or public health. There is no such law
applicable to the travel abroad of respondent. Neither the OCA nor the majority can
point to the existence of such a law. In the absence of such a law, the denial of
respondent's right to travel abroad is a gross violation of a fundamental constitutional
right.

xxxx

Furthermore, respondent's travel abroad, during her approved leave, did not require
approval from anyone because respondent, like any other citizen, enjoys the
constitutional right to travel within the Philippines or abroad. Respondent's right to
travel abroad, during her approved leave, cannot be impaired "except in the interest of
national security, public safety, or public health, as may be provided by law." Not one of
these grounds is present in this case.[23] (Citations omitted)
While the Revised Administrative Code of 1987 cannot lend credence to a valid
impairment of the right to travel, Republic Act No. (RA) 8239, otherwise known as the
Philippine Passport Act of 1996, expressly allows the Secretary of Foreign Affairs or any
of the authorized consular officers to cancel the passport of a citizen. Section 4 of RA
8239 reads:
SEC. 4. Authority to Issue, Deny, Restrict or Cancel. — Upon the application of any
qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized
consular officer may issue passports in accordance with this Act.

Philippine consular officers in a foreign country shall be authorized by the Secretary to

issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in
accordance with the provisions of this Act.

In the interest of national security, public safety and public health, the Secretary or any
of the authorized consular officers may, after due hearing and in their proper discretion,
refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided,
however, That such act shall not mean a loss or doubt on the person's
citizenship: Provided, further, That the issuance of a passport may not be denied if the
safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or
cancellation of a passport would not prevent the issuance of a Travel Document to allow
for a safe return journey by a Filipino to the Philippines.
The identical language between the grounds to cancel passports under the above-
quoted provision and the grounds to impair the right to travel under Section 6, Article III
of the Constitution is not by accident cognizant of the fact that passport cancellations
necessarily entail an impairment of the right. Congress intentionally copied the latter to
obviate expanding the grounds for restricting the right to travel.

Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of persons
under preliminary investigation? The answer depends on the nature of the crime for
which the passport holders are being investigated on. If the crime affects national
security and public safety, the cancellation squarely falls within the ambit of Section 4.
Thus, passport holders facing preliminary investigation for the following crimes are
subject to the DFA Secretary's power under Section 4:
(1) Title One, (Crimes Against National Security and the Law of Nations), Title Three
(Crimes Against Public Order), Title Eight (Crimes Against Persons), Title Nine
(Crimes Against Liberty), Title Ten (Crimes Against Property) and Title Eleven
(Crimes Against Chastity), Book II of the Revised Penal Code;
(2) Section 261 (Prohibited Acts), paragraphs (e),[24] (f),[25] (p),[26] (q),[27]  (s),[28] and (u)
[29]
 of the Omnibus Election Code;[30] and
(3) Other related election laws such as Section 27(b) of RA 7874, as amended by RA
9369.[31]
Indeed, the phrases "national security" and "public safety," which recur in the text of
the Constitution as grounds for the exercise of powers or curtailment of rights,[32] are
intentionally broad to allow interpretative flexibility, but circumscribed at the same time
to prevent limitless application. At their core, these concepts embrace acts undermining
the State's existence or public security. At their fringes, they cover acts disrupting
individual or communal tranquility. Either way, violence or potential of violence features
prominently.

Thus understood, the "public safety" ground under Section 4 of RA 8239 unquestionably
includes violation of election-related offenses carrying the potential of disrupting the
peace, such as electoral sabotage which involves massive tampering of votes (in excess
of 10,000 votes). Not only does electoral sabotage desecrate electoral processes, but it
also arouses heated passion among the citizenry, driving some to engage in mass
actions and others to commit acts of violence. The cancellation of passports of
individuals investigated for this crime undoubtedly serves the interest of public safety,
much like individuals under investigation for robbery, kidnapping, and homicide, among
others.[33]

As to whether respondent must be cited in contempt for allegedly defying the

Temporary Restraining Order issued by the Court, I agree that it cannot be resolved
simultaneously with these consolidated petitions. Until the contempt charge is threshed
out in a separate and proper proceeding, I defer expressing my view on this issue.

Accordingly, I vote to GRANT the petitions and to declare DOJ Circular No. 041-10, and
the assailed Watchlist Orders issued pursuant to the circular, UNCONSTITUTIONAL for
being contrary to Section 6, Article III of the Constitution. As regards the contempt
charge against respondent, I DEFER any opinion on this issue until it is raised in a
separate and proper proceeding.

[1]
 Osmeña III v. Social Security System of the Philippines, 559 Phil. 723, 735 (2007),
citing Governor Mandanas v. Honorable Romulo, 473 Phil. 806, 827-828
(2004); Olanolan v. COMELEC, 494 Phil. 749, 759 (2005); Paloma v. Court of Appeals, 461
Phil. 269, 276-277 (2003).

[2]
 716 Phil. 19 (2013).

[3]
 Id. at 28-29.

[4]
 Castrodes v. Cubelo, 173 Phil. 86 (1978).

[5]
 Id. at 91.
[6]
 Cooperative Rural Bank of Davao City. Inc., v. Ferrer-Calleja, 248 Phil. 169 (1988).

[7]
 Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, 25 January 2016, 781 SCRA
607, 619.

[8]
 Otherwise known as Consolidated Rules and Regulations Governing the Issuances and
Implementing of Hold Departure Orders, Watchlist Orders and Allow Departure Orders.

[9]
 DOJ Circular No. 041-10 was published in The Philippine Star on 17 June 2010. Under
Art. 2 of the Civil Code, as interpreted by the Court in Tañada v. Tuvera, 230 Phil. 528,
533-534 (1986), DOJ Circular No. 041-10 shall take effect after 15 days from the date of
its publication.

[10]
 Dr. Cruz v. Judge Iturralde, 450 Phil. 77, 86 (2003); Hold-Departure Order issued by
Judge Occiano, 431 Phil. 408, 411-412 (2002); Silverio v. Court of Appeals, 273 Phil. 128,
134-135 (1991).

[11]
 See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my dissenting opinion
in Leave Division, Office of Administrative Services-OCA v. Heusdens, 678 Phil. 328, 355
(2011).

[12]
 See Belgica v. Ochoa, 721 Phil. 416, 546 (2013).

[13]
 392 Phil. 518 (2000).

[14]
 Id. at 529-530.

[15]
 554 Phil. 609 (2007).

[16]
 Id. at 625-626.

[17]
 412 Phil. 308 (2001).

[18]
 Id. at 331-332.

[19]
 Consolidated Comment, p. 36.

[20]
 354 Phil. 948 (1998).

[21]
 Id. at 966, 968-969.

[22]
 Office of the Solicitor General v. Court of Appeals, 735 Phil. 622, 630 (2014); Calingin
v. Court of Appeals, 478 Phil. 231, 236-237 (2004); Government Service Insurance
System v. Civil Service Commission, 307 Phil. 836, 846 (1994).

[23]
 See my dissenting opinion in Leave Division, Office of Administrative Services-OCA v.
Heusdens, supra note 11, at 354-356.
[24]
 "Threats, intimidation, terrorism, use of fraudulent device or other forms of
coercion."

[25]
 "Coercion of election officials and employees."

[26]
 "[Carrying of] deadly weapons in prohibited areas."

[27]
 "Carrying of firearms outside residence or place of business."

[28]
 "Wearing of uniforms and bearing arms."

[29]
 "Organization or maintenance of reaction forces, strike forces, or other similar
forces."

[30]
 Batas Pambansa Blg. 881, as amended.

[31]
 Defining the offense of Electoral Sabotage.

[32]
 E.g., (1) Art. III, Sec. 3(1) ["The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law."]; Sec. 6 ["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."]; Sec. 15 ["The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion, when the public safety requires it."]); and (2)
Art. VII, Sec. 15 ["Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety."]: Sec. 18, par. 2 ["In case
of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. x x x. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it."] (Emphasis supplied)

[33]
 It is not farfetched to link election laws with public safety. The European Court of
Human Rights considers the forced abolition of a political party espousing violent and
extreme views as permissible in the interest of public safety, even though this impairs
the party members' right to association. See Refah Partisi v. Turkey, 13 February 2003,
Application Nos. 41340/98, 41342/98, 41343/98 and 41344/9837.
(www.echr.coe.int/Documents/Reports_Recueil_2003-II.pdf, accessed on 18 January
2018)

SEPARATE CONCURRING OPINION

VELASCO,JR., J.:
I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes, Jr.

That the right to travel and to freedom of movement are guaranteed protection by no
less than the fundamental law of our land brooks no argument. While these rights are
not absolute, the delimitation thereof must rest on specific circumstances that would
warrant the intrusion of the State. As mandated by Section 6 of the Bill of Rights, any
curtailment of the people's freedom of movement must indispensably be grounded on
an intrinsically valid law, and only whenever necessary to protect national security,
public safety, or public health, thus:
SEC. 6. 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. (Emphasis and underscoring supplied)
The Department of Justice (DOJ) Circular No. 41 cannot be the law pertained to in the
provision. As pointed out in the ponencia, it is but an administrative issuance that
requires an enabling law to be valid.[1]

Jurisprudence dictates that the validity of an administrative issuance is hinged on

compliance with the following requirements: 1) its promulgation is authorized by the
legislature; 2) it is promulgated in accordance with the prescribed procedure; 3) it is
within the scope of the authority given by the legislature; and 4) it is reasonable.[2] The
DOJ, thus, exceeded its jurisdiction when it assumed to wield the power to issue hold
departure orders (HDOs) and watchlist orders (WLOs), and allow department orders
which unduly infringe on the people's right to travel absent any specific legislation
expressly vesting it with authority to do so.

I, therefore, concur that DOJ Circular No. 41 is without basis in law and is, accordingly,
unconstitutional.

With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a
quandary and without prompt recourse for preventing persons strongly suspected of
committing criminal activities from evading the reach of our justice system by fleeing to
other countries.

Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of

Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996, which
expressly allows the Secretary of Foreign Affairs or any of the authorized consular
officers to cancel the passport of a citizen, even those of persons under preliminary
investigations, for crimes affecting national security and public safety. This course of
action, while undoubtedly a legally viable solution to the DOJ's dilemma, would
nevertheless require the conduct of a hearing, pursuant to Section 4[3] of the law. This
would inevitably alert the said persons of interest of the cause and purpose of the
cancellation of their passports that could, in turn, facilitate, rather than avert, their
disappearance to avoid the processes of the court.

As an alternative solution, it is my humble submission that the above predicament can

be effectively addressed through the ex-parte issuance of precautionary warrants of
arrest (PWAs) and/or precautionary hold departure orders (PHDOs) prior to the filing of
formal charges and information against suspected criminal personalities.

The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of
the Constitution, to wit:
Section 2. x x x no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. (Emphasis
supplied)
It bears noting that the warrant clause permits the issuance of warrants, whether it be a
search warrant or a warrant of arrest, even prior to the filing of a criminal complaint or
information in court. This interpretation finds support in the crafting of the provisions in
our Rules of Criminal Procedure that govern the issuance of search warrants. As stated
in Sections 4 to 6[4] of Rule 126, a search warrant may be issued by the courts if, after
personally examining the complainants/applicants and the witnesses produced, they are
convinced that probable cause exists for the issuance thereof. The rules do not
require that 1) a criminal action or even a complaint must have already been filed
against an accused; and that 2) persons of interest are notified of such application
before law enforcement may avail of this remedy. The application for and issuance of a
search warrant are not conditioned on the existence of a criminal action or even a
complaint before an investigating prosecutor against any person.

Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of

arrest, akin to a search warrant, may be crafted by the Court. The application will be
done ex-parte, by a public prosecutor upon the initiative of our law enforcement
agencies, before an information is filed in court, and only in certain serious crimes and
offenses. Before filing the application, the public prosecutor shall ensure that probable
cause exists that the crime has been committed and that the person sought to be
arrested committed it. The law enforcement agencies may also opt to ask for a PWA
with PHDO or simply a PHDO.

The judge's determination of probable cause shall be done in accordance with the
requirements in Section 2, Article III of the Constitution. He shall set a hearing on the
application to personally examine under oath or affirmation, in form of searching
questions and answers, the applicant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements. If satisfied
of the existence of probable cause based on the application and its attachments, the
testimonies of the witnesses, and other evidence presented during the hearing, the
judge may issue the warrant and direct the Philippine National Police or the National
Bureau of Investigation to effect the arrest.

The suggested revision in the Rules, to my mind, will help solve the problem caused by
the declaration of nullity of the HDOs and WLOs issued by the DOJ. The law
enforcement agencies can apply for a PWA or PHDO to prevent suspects from fleeing
the country and to detain and arrest them at the airport. This may also solve the
problem of extrajudicial killings as the law enforcement agency is now provided with an
adequate remedy for the arrest of the criminals.

I vote to GRANT the petition.

[1]
 Page 22 of the Decision.

[2]
 Hon. Executive Secretary, et. al. v. Southwing Heavy Industries, Inc., G.R. No. 164171,
February 20, 2006, 482 SCRA 673, 686.

[3]
 SEC. 4. Authority to Issue, Deny, Restrict or Cancel. - Upon the application of any
qualified Filipino citizen, the Secretary of Foreign Affairs or any of his authorized
consular officer may issue passports in accordance with this Act.

Philippine consular officers in a foreign country shall be authorized by the Secretary to

issue, verify, restrict, cancel or refuse a passport in the area of jurisdiction of the Post in
accordance with the provisions of this Act.

In the interest of national security, public safety and public health, the Secretary or any
of the authorized consular officers may, after due hearing and in their proper discretion,
refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided,
however, That such act shall not mean a loss or doubt on the person's
citizenship: Provided, further, That the issuance of a passport may not be denied if the
safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or
cancellation of a passport would not prevent the issuance of a Travel Document to allow
for a safe return journey by a Filipino to tlie Philippines. (Emphasis supplied)

[4]
 Section 4. Requisites for issuing search warrant. — A search warrant shall not issue
except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the Philippines.

Section 5. Examination of complainant; record. — The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may produce on facts personally
known to them and attach to the record their sworn statements, together with the
affidavits submitted. (4a)

Section 6. Issuance and form of search warrant. — If the judge is satisfied of the
existence of facts upon which the application is based or that there is probable cause to
believe that they exist, he shall issue the warrant, which must be substantially in the
form prescribed by these Rules. (5a)

SEPARATE OPINION

LEONEN, J.:

I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional.
The Department of Justice is neither authorized by law nor does it possess the inlierent
power to issue hold departure orders, watchlist orders, and allow departure orders
against persons under preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of persons
to travel can only be impaired by a legislative enactment as it can likewise be burdened
by other constitutional provisions.

The pertinent Constitutional provision on the right to travel is Article III, Section 6, which
states:
Section 6. 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 safely, or public
health, as may be provided by law. (Emphasis supplied)
The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,[1] an early
case decided under the 1987 Constitution. It dealt specifically with the right of former
President Marcos to return to the Philippines. In resolving the case, this Court
distinguished between the right to return to one's country and the general right to
travel. The right to return to one's country was treated separately and deemed excluded
from the constitutionally protected right to travel.[2]

In my view, the right to travel should not be given such a restrictive interpretation. In
the broad sense, the right to travel refers to the "right to move from one place to
another."[3] The delimitation set in Marcos effectively excludes instances that may
involve a curtailment on the right to travel within the Philippines and the right
to travel to the Philippines. This case presents us with an opportunity to
revisit Marcos and abandon its narrow and restrictive interpretation. In this regard, the
constitutional provision should be read to include travel within the Philippines and
travel to and from the Philippines.

Undeniably, the right to travel is not absolute. Article III, Section 6 of the Constitution
states that any curtailment must be based on "national security, public safety, or public
health, as may be provided by law."

In interpreting this constitutional provision, the ponencia proposes that only a statute or

a legislative enactment may impair the right to travel.

Respectfully, I disagree. In my view, the phrase "as may be provided by law" should not
be literally interpreted to mean statutory law. Its usage should depend upon the context
in which it is written. As used in the Constitution, the word "law" does not only refer to
statutes but embraces the Constitution itself.

The Bill of Rights is replete with provisions that provide a similar phraseology. For
instance, both the due process clause and the equal protection clause under Article III,
Section 1 of the Constitution contain the word "law," thus:
Article III
BILL OF RIGHTS

Section 1. No person shall be deprived of life, liberty or property without due process of

law, nor shall any person be denied the equal protection of the laws. (Emphasis
supplied)
However, the application of the due process and the equal protection clauses has not
been limited to statutory law. These two (2) principles have been tested even against
executive issuances.

In Ynot v. Intermediate Appellate Court,[4] the due process clause was deemed to have
been violated by an executive order which directed the outright confiscation of
carabaos transported from one province to another. In declaring the executive order
unconstitutional, this Court held:
[T]he challenged measure is an invalid exercise of the police power because the method
employed to conserve the carabaos is not reasonably necessary to the purpose of the
law and, worse, is unduly oppressive. Due process is violated because the owner of the
property confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear encroachment on judicial
functions and militates against the doctrine of separation of powers. There is, finally,
also an invalid delegation of legislative powers to the officers mentioned therein who
are granted unlimited discretion in the distribution of the properties arbitrarily taken.
For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.[5]
In the same manner, this Court in Corona v. United Harbor Pilots Association of the
Philippines[6] invalidated an administrative order that restricted harbor pilots from
exercising their profession. The administrative order, which required harbor pilots to
undergo an annual performance evaluation as a condition for the continued exercise of
their profession, was considered a "deprivation of property without due process of
law."[7]

In Biraogo v. Truth Commission,[8] the creation of the Philippine Truth Commission by

virtue of an executive order was deemed unconstitutional for violating the equal
protection clause. The classification under the executive order, according to this Court,
was unreasonable, thus:
Executive Order No. 1 should be struck down as violative of the equal protection clause.
The clear mandate of the envisioned truth commission is to investigate and find out the
truth "concerning the reported cases of graft and corruption during the previous
administration" only. The intent to single out the previous administration is plain, patent
and manifest. Mention of it has been made in at least three portions of the questioned
executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during
the previous administration, and which will recommend the prosecution of the
offenders and secure justice for all;

SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers
of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code
of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman. [Emphases
supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a
member of a class, that is, a class of past administrations. It is not a class of its own. Not
to include past administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.[9] (Citations omitted)
In this regard, it is inaccurate to say that the right of persons to travel to and from the
Philippines can only be impaired by statutory law. It is also inaccurate to say that the
impairment should only be limited to national security, public safety, or public health
considerations for it to be valid.

For instance, the assailed department order in Philippine Association of Service

Exporters, Inc. v. Drilon[10] was not founded upon national security, public safety, or
public health but on the state's policy of affording protection to labor.[11] The
department order was deemed a valid restriction on the right to travel.[12]

The term "law" in Article III, Section 6 can refer to the Constitution itself. This can be
understood by examining this Court's power to regulate foreign travel of court
personnel and the nature and functions of bail.

The power of this Court to regulate the foreign travel of court personnel does not
emanate from statutory law, nor is it based on national security, public safety, or public
health considerations. Rather, it is an inherent power flowing from Article III, Section
5(6) of the Constitution, which grants this Court the power of administrative supervision
over all courts and court personnel.[13]

The nature and object of this Court's power to control the foreign travel of court
personnel were further explained in Leave Division, Office of Administrative Services —
Office of the Court Administrator v. Heusdens,[14] thus:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution
provides that the "Supreme Court shall have administrative supervision over all courts
and the personnel thereof." This provision empowers the Court to oversee all matters
relating to the effective supervision and management of all courts and personnel under
it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the
President, dated July 31, 1986, considers the Supreme Court exempt and with authority
to promulgate its own rules and regulations on foreign travels. Thus, the Court came out
with OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to
faithfully adhere to, and abide with, the law and the corresponding office rules and
regulations. These rules and regulations, to which one submits himself or herself, have
been issued to guide the government officers and employees in the efficient
performance of their obligations. When one becomes a public servant, he or she
assumes certain duties with their concomitant responsibilities and gives up some rights
like the absolute right to travel so that public service would not be prejudiced.

As earlier stated, with respect to members and employees of the Judiciary, the Court
issued OCA Circular No. 49-2003 to regulate their foreign travel in an unofficial
capacity. Such regulation is necessary for the orderly administration of justice. If judges
and court personnel can go on leave and travel abroad at will and without restrictions or
regulations, there could be a disruption in the administration of justice. A situation
where the employees go on mass leave and travel together, despite the fact that their
invaluable services are urgently needed, could possibly arise. For said reason, members
and employees of the Judiciary cannot just invoke and demand their right to travel.

To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary
and the society as well. In a situation where there is a delay in the dispensation of
justice, litigants can gel disappointed and disheartened. If their expectations are
frustrated, they may take the law into their own hands which results in public disorder
undermining public safety. In this limited sense, it can even be considered that the
restriction or regulation of a court personnel's right to travel is a concern for public
safety, one of the exceptions to the non-impairment of one's constitutional right to
travel.[15] (Citations omitted, emphasis supplied)
A person's right to bail before conviction is both guaranteed and limited under the
Constitution. Article III, Section 13 states:
Section 13. 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.
Courts have the jurisdiction to determine whether a person should be admitted to bail.
This jurisdiction springs from the Constitution itself, which imposes limitations on the
right to bail. However, the discretion of courts is not restricted to the question of
whether bail should be granted to an accused as Courts have the inherent power "to
prohibit a person admitted to bail from leaving the Philippines."[16] Regional Trial Courts,
in particular, are empowered to issue hold departure orders in criminal cases falling
within their exclusive jurisdiction.[17] Persons admitted to bail are required to seek
permission before travelling abroad.[18]

Similar to the power of this Court to control foreign travel of court personnel, the power
to restrict the travel of persons admitted to bail is neither based on a legislative
enactment nor founded upon national security, public safety, or public health
considerations. The power of courts to restrict the travel of persons on bail is deemed a
necessary consequence of the conditions imposed in a bail bond.[19] In Manotoc v. Court
of Appeals[20] this Court explained:
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given
for the release of a person who is in the custody of the law, that he will appear before
any court in which his appearance may be required as stipulated in the bail bond or
recognizance.
"Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much under
the power of the court as if he were in custody of the proper officer, and to secure the
appearance of the accused so as to answer the call of the court and do what the law
may require of him."

The condition imposed upon petitioner to make himself available at all times whenever
the court requires his presence operates as a valid restriction on his right to travel. As
we have held in People v. Uy Tuising[:]
". . . the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to prohibit
said accused from leaving the jurisdiction of the Philippines, because, otherwise, said
orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts
from which they issued does not extend beyond that of the Philippines they would have
no binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without sufficient reason,
he may be placed beyond the reach of the courts.

"The effect of a recognizance or bail bond, when fully executed or filed of record, and
the prisoner released thereunder, is to transfer the custody of the accused from the
public officials who have him in their charge to keepers of his own selection. Such
custody has been regarded merely as a continuation of the original imprisonment. The
sureties become invested with full authority over the person of the principal and have
the right to prevent the principal from leaving the state."[21] (Citations omitted)
Although Manotoc was decided under the 1973 Constitution, the nature and functions
of bail remain essentially the same under the 1987 Constitution.[22] Hence, the principle
laid down in Manotoc was reiterated in Silverio v. Court of Appeals[23] where this Court
further explained that:
Article III, Section 6 of the 1987 Constitution should by no means be construed as
delimiting the inherent power of the Courts to use all means necessary to carry their
orders into effect in criminal cases pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed by such Court or officer.

....

. . . Holding an accused in a criminal case within the reach of the Courts by preventing
his departure from the Philippines must be considered as a valid restriction on his right
to travel so that he may be dealt with in accordance with law.[24] (Citation omitted)
Moreover, the power of courts to restrict the travel of persons out on bail is an incident
of its power to grant or deny bail. As explained in Santiago v. Vasquez:[25]
Courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent
powers are such powers as are necessary for the ordinary and efficient exercise of
jurisdiction; or essential to the existence, dignity and functions of the courts, as well as
to the due administration of justice; or are directly appropriate, convenient and suitable
to the execution of their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants.
Therefore, while a court may be expressly granted the incidental powers necessary to
effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation,
implies the necessary and usual incidental powers essential to effectuate it, and, subject
to existing laws and constitutional provisions, every regularly constituted court has the
power to do all things that are reasonably necessary for the administration of justice
within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or
incidental to, or growing out of, the main action, and coming within the above
principles, may be taken cognizance of by the court and determined, since such
jurisdiction is in aid of its authority over the principal matter, even though the court may
thus be called on to consider and decide matters which, as original causes of action,
would not be within its cognizance.

Furthermore, a court has the inherent power to make interlocutory orders necessary to
protect its jurisdiction. Such being the case, with more reason may a party litigant be
subjected to proper coercive measures where he disobeys a proper order, or commits a
fraud on the court or the opposing party, the result of which is that the jurisdiction of
the court would be ineffectual. What ought to be done depends upon the particular
circumstances.

Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even
made a public statement that she had every intention of leaving the country allegedly to
pursue higher studies abroad. We uphold the course of action adopted by the
Sandiganbayan in taking judicial notice of such fact of petitioner's plan to go abroad and
in thereafter issuing sua sponte the hold departure order, in justified consonance with
our preceding disquisition. To reiterate, the hold departure order is but an exercise of
respondent court's inherent power to preserve and to maintain the effectiveness of its
jurisdiction over the case and the person of the accused.[26]
The Department of Justice is neither empowered by a specific law nor does it possess
the inherent power to restrict the right to travel of persons under criminal investigation
through the issuance of hold departure orders, watchlist orders, and allow departure
orders. Its mandate under the Administrative Code of 1987 to "[investigate the
commission of crimes [and] prosecute offenders"[27] cannot be interpreted so broadly as
to include the power to curtail a person's right to travel. Furthermore, Department
Order No. 41, series of 2010 cannot be likened to the power of the courts to restrict the
travel of persons on bail as the latter presupposes that the accused was arrested by
virtue of a valid warrant and placed under the court's jurisdiction. For these reasons,
Department of Justice Circular No. 41, series of 2010, is unconstitutional.

Parenthetically, I agree that the right to travel is part and parcel of an individual's right
to liberty, which cannot be impaired without due process of law.[28]

The ponencia mentions Rubi v. Provincial Board of Mindoro.[29] In my view, Rubi should

always be cited with caution. In Rubi, the Mangyans of Mindoro were forcibly removed
from their habitat and were compelled to settle in a reservation under pain of
imprisonment for non-compliance.[30] Although the concepts of civil liberty and due
process were extensively discussed in the case,[31] this Court nevertheless justified the
government act on a perceived necessity to "begin the process of civilization" of the
Mangyans who were considered to have a "low degree of intelligence" and as "a drag
upon the progress of the State."[32]

[1]
 258 Phil. 489 (1989) [Per J. Cortes, En Banc].

[2]
 Id. at 497-498.

[3]
 Mirasol v. Department of Public Works and Highways, 523 Phil. 713, 752 (2006) [Per J.
Carpio, En Banc].

[4]
 232 Phil. 615, 631 (1987) [Per J. Cruz, En Banc].

[5]
 Id. at 631.

[6]
 347 Phil. 333 (1997) [Per J. Romero, En Banc].

[7]
 Id. at 344.

[8]
 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].

[9]
 Id. at 461-462.

[10]
 246 Phil. 393 (1988) [Per J. Sarmiento, En Banc].

[11]
 Id. at 404-405.

[12]
 Id.

[13]
 CONST., art. VIII, sec. 5(6) provides:

Section 6. The Supreme Court shall have administrative supervision over all courts and
the personnel thereof.

[14]
 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].

[15]
 Id. at 341-342.

[16]
 Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].

[17]
 OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders (1997):

In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in

inconvenience to the parties affected the same being tantamount to an infringement on
the right and liberty of an individual to travel and to ensure that the Hold-Departure
Orders which are issued contain complete and accurate information, the following
guidelines are hereby promulgated:

1. Hold-Departure Orders shall be issued only in criminal cases within the exclusive
jurisdiction of the Regional Trial Courts;
2. The Regional Trial Courts issuing the Hold-Departure Order shall furnish the
Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the
Department of Justice with a copy each of the Hold-Departure Order issued within
twenty-four (24) hours from the time of issuance and through the fastest available
means of transmittal;

3. The Hold-Departure Order shall contain the following information:

a. The complete name (including the middle name), the date and place of birth and the
place of last residence of the person against whom a Hold-Departure Order has been
issued or whose departure from the country has been enjoined;

b. The complete title and the docket number of the case in which the Hold-Departure
Order was issued;

c. The specific nature of the case; and

d. The date of the Hold-Departure Order.

If available a recent photograph of the person against whom a Hold-Departure Order

has been issued or whose departure from the country has been enjoined should also be
included.

4. Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the
judgment of acquittal or the order of dismissal shall include therein the cancellation of
the Hold-Departure Order issued. The courts concerned shall furnish the Department of
Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of
acquittal promulgated or the order of dismissal issued within twenty-four (24) hours
from the time of promulgation/issuance and likewise through the fastest available
means of transmittal.

All Regional Trial Courts which have furnished the Department of Foreign Affairs with
their respective lists of active Hold-Departure Orders are hereby directed to conduct an
inventory of the Hold-Departure Orders included in the said lists and inform the
government agencies concerned of the status of the Orders involved.

[18]
 Leave Division, Office of Administrative Services - Office of the Court Administrator v.
Heusdens, 678 Phil. 328 (2011) [Per J. Mendoza, En Banc].

[19]
 Manotoc v. Court of Appeals, 226 Phil. 75, 82 (1986) [Per J. Fernan, En Banc].

[20]
 226 Phil. 75 (1986) [Per J. Fernan, En Banc].

[21]
 Id. at 82-83.

[22]
 Silverio v. Court of Appeals, 273 Phil. 128, 134 (1991) [Per J. Melencio-Herrera,
Second Division].
[23]
 273 Phil. 128 (1991) [Per J. Melencio-Herrera, Second Division].

[24]
 Id. at 134.

[25]
 291 Phil. 664 (1993) [Per J. Regalado, En Banc].

[26]
 Id. at 679-680.

[27]
 1987 ADM. CODE, Title III, sec. 3(2).

[28]
 Ponencia, pp. 16-17.

[29]
 39 Phil. 660 (1919) [Per J. Malcolm, En Banc].

[30]
 Id. at 666-669.

[31]
 Id. at 703-707.

[32]
 Id. at 718-720.

Source: Supreme Court E-Library | Date created: July 31, 2018

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Supreme Court E-Library

.   Right to Information (Sec. 7, Art. III)

i.   Scope and exception
1.  Chavez vs. PEA, July 9, 2002

433 Phil. 506

EN BANC

[ G.R. No. 133250, July 09, 2002 ]

FRANCISCO I. CHAVEZ, PETITIONER, VS. PUBLIC ESTATES AUTHORITY AND AMARI

COASTAL BAY DEVELOPMENT CORPORATION, RESPONDENTS.

DECISION

CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction
and a temporary restraining order. The petition seeks to compel the Public Estates
Authority (“PEA” for brevity) to disclose all facts on PEA’s then on-going renegotiations
with Amari Coastal Bay and Development Corporation (“AMARI” for brevity) to reclaim
portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new
agreement with AMARI involving such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways,
signed a contract with the Construction and Development Corporation of the Philippines
(“CDCP” for brevity) to reclaim certain foreshore and offshore areas of Manila Bay. The
contract also included the construction of Phases I and II of the Manila-Cavite Coastal
Road. CDCP obligated itself to carry out all the works in consideration of fifty percent of
the total reclaimed land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No.
1084 creating PEA. PD No. 1084 tasked PEA “to reclaim land, including foreshore and
submerged areas,” and “to develop, improve, acquire, x x x lease and sell any and all
kinds of lands.”[1] On the same date, then President Marcos issued Presidential Decree
No. 1085 transferring to PEA the “lands reclaimed in the foreshore and offshore of the
Manila Bay”[2] under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to

amend its contract with CDCP, so that “[A]ll future works in MCCRRP x x x shall be
funded and owned by PEA.” Accordingly, PEA and CDCP executed a Memorandum of
Agreement dated December 29, 1981, which stated:

“(i) CDCP shall undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties, to be paid according to progress of
works on a unit price/lump sum basis for items of work to be agreed upon, subject to
price escalation, retention and other terms and conditions provided for in Presidential
Decree No. 1594. All the financing required for such works shall be provided by PEA.

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and
transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and
to all the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981
which have not yet been sold, transferred or otherwise disposed of by CDCP as of said
date, which areas consist of approximately Ninety-Nine Thousand Four Hundred
Seventy Three (99,473) square meters in the Financial Center Area covered by land
pledge No. 5 and approximately Three Million Three Hundred Eighty Two Thousand
Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying
elevations above Mean Low Water Level located outside the Financial Center Area and
the First Neighborhood Unit.”[3]

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517,
granting and transferring to PEA “the parcels of land so reclaimed under the Manila-
Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square
meters.” Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of
Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name
of PEA, covering the three reclaimed islands known as the “Freedom Islands” located at
the southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom
Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four
Hundred and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement (“JVA” for brevity) with
AMARI, a private corporation, to develop the Freedom Islands. The JVA also required
the reclamation of an additional 250 hectares of submerged areas surrounding these
islands to complete the configuration in the Master Development Plan of the Southern
Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation
without public bidding.[4] On April 28, 1995, the Board of Directors of PEA, in its
Resolution No. 1245, confirmed the JVA. [5] On June 8, 1995, then President Fidel V.
Ramos, through then Executive Secretary Ruben Torres, approved the JVA.[6]

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege
speech in the Senate and denounced the JVA as the “grandmother of all scams.” As a
result, the Senate Committee on Government Corporations and Public Enterprises, and
the Committee on Accountability of Public Officers and Investigations, conducted a joint
investigation. The Senate Committees reported the results of their investigation in
Senate Committee Report No. 560 dated September 16, 1997.[7] Among the conclusions
of their report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the
JVA are lands of the public domain which the government has not classified as alienable
lands and therefore PEA cannot alienate these lands; (2) the certificates of title covering
the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative

Order No. 365 creating a Legal Task Force to conduct a study on the legality of the JVA in
view of Senate Committee Report No. 560. The members of the Legal Task Force were
the Secretary of Justice,[8] the Chief Presidential Legal Counsel,[9] and the Government
Corporate Counsel.[10] The Legal Task Force upheld the legality of the JVA, contrary to the
conclusions reached by the Senate Committees.[11]

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that

there were on-going renegotiations between PEA and AMARI under an order issued by
then President Fidel V. Ramos. According to these reports, PEA Director Nestor
Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz composed the
negotiating panel of PEA.

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition
with Application for the Issuance of a Temporary Restraining Order and Preliminary
Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. The Court dismissed
the petition “for unwarranted disregard of judicial hierarchy, without prejudice to the
refiling of the case before the proper court.”[12]

On April 27, 1998, petitioner Frank I. Chavez (“Petitioner” for brevity) as a taxpayer, filed
the instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary
Injunction and Temporary Restraining Order. Petitioner contends the government stands
to lose billions of pesos in the sale by PEA of the reclaimed lands to AMARI. Petitioner
prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking
Section 28, Article II, and Section 7, Article III, of the 1987 Constitution on the right of
the people to information on matters of public concern. Petitioner assails the sale to
AMARI of lands of the public domain as a blatant violation of Section 3, Article XII of the
1987 Constitution prohibiting the sale of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of
pesos in properties of the State that are of public dominion.

After several motions for extension of time,[13] PEA and AMARI filed their Comments on
October 19, 1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998,
petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the
renegotiated PEA-AMARI contract; (b) for issuance of a temporary restraining order; and
(c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for
Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution dated
June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and
required the parties to file their respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement
(“Amended JVA,” for brevity). On May 28, 1999, the Office of the President under the
administration of then President Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now
prays that on “constitutional and statutory grounds the renegotiated contract be
declared null and void.”[14]

The Issues

The issues raised by petitioner, PEA[15] and AMARI[16] are as follows:

I.    WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND
ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;

II.   WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE

PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;

III.  WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF

ADMINISTRATIVE REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V.  WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL

INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR

THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED,
VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER
THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT.

The Court’s Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and
academic because of subsequent events.

The petition prays that PEA publicly disclose the “terms and conditions of the on-going
negotiations for a new agreement.” The petition also prays that the Court
enjoin PEA from “privately entering into, perfecting and/or executing any new
agreement with AMARI.”

PEA and AMARI claim the petition is now moot and academic because AMARI furnished
petitioner on June 21, 1999 a copy of the signed Amended JVA containing the terms and
conditions agreed upon in the renegotiations. Thus, PEA has satisfied petitioner’s prayer
for a public disclosure of the renegotiations. Likewise, petitioner’s prayer to enjoin the
signing of the Amended JVA is now moot because PEA and AMARI have already signed
the Amended JVA on March 30, 1999. Moreover, the Office of the President has
approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply
fast-tracking the signing and approval of the Amended JVA before the Court could act
on the issue. Presidential approval does not resolve the constitutional issue or remove it
from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the
President cannot operate to moot the petition and divest the Court of its
jurisdiction. PEA and AMARI have still to implement the Amended JVA. The prayer to
enjoin the signing of the Amended JVA on constitutional grounds necessarily includes
preventing its implementation if in the meantime PEA and AMARI have signed one in
violation of the Constitution. Petitioner’s principal basis in assailing the renegotiation of
the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits the
government from alienating lands of the public domain to private corporations. If the
Amended JVA indeed violates the Constitution, it is the duty of the Court to enjoin its
implementation, and if already implemented, to annul the effects of such
unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks
to transfer title and ownership to 367.5 hectares of reclaimed lands and submerged
areas of Manila Bay to a single private corporation. It now becomes more compelling
for the Court to resolve the issue to insure the government itself does not violate a
provision of the Constitution intended to safeguard the national patrimony. Supervening
events, whether intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution. In the instant case, if the
Amended JVA runs counter to the Constitution, the Court can still prevent the transfer
of title and ownership of alienable lands of the public domain in the name of AMARI.
Even in cases where supervening events had made the cases moot, the Court did not
hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and the public.[17]

Also, the instant petition is a case of first impression. All previous decisions of the Court
involving Section 3, Article XII of the 1987 Constitution, or its counterpart provision in
the 1973 Constitution,[18] covered agricultural lands sold to private corporations which
acquired the lands from private parties. The transferors of the private corporations
claimed or could claim the right to judicial confirmation of their imperfect
titles[19] under Title II of Commonwealth Act. 141 (“CA No. 141” for brevity). In the
instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands
and submerged areas for non-agricultural purposes by  purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the
Amended JVA constitute the consideration for the purchase. Neither AMARI nor PEA can
claim judicial confirmation of their titles because the lands covered by the Amended JVA
are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title
requires open, continuous, exclusive and notorious occupation of agricultural lands of
the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the
deadline for filing applications for judicial confirmation of imperfect title expired on
December 31, 1987.[20]

Lastly, there is a need to resolve immediately the constitutional issue raised in this
petition because of the possible transfer at any time by PEA to AMARI of title and
ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is obligated
to transfer to AMARI the latter’s seventy percent proportionate share in the reclaimed
areas as the reclamation progresses. The Amended JVA even allows AMARI to mortgage
at any time the entire reclaimed area to raise financing for the reclamation project.[21]

Second issue: whether the petition merits dismissal for failing to observe the principle
governing the hierarchy of courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional issues of transcendental
importance to the public.[22] The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative
remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose

publicly certain information without first asking PEA the needed information. PEA claims
petitioner’s direct resort to the Court violates the principle of exhaustion of
administrative remedies. It also violates the rule that mandamus may issue only if there
is no other plain, speedy and adequate remedy in the ordinary course of law.

PEA distinguishes the instant case from Tañada v. Tuvera[23] where the Court granted

the petition for mandamus even if the petitioners there did not initially demand from
the Office of the President the publication of the presidential decrees. PEA points out
that in Tañada, the Executive Department had an affirmative statutory duty under
Article 2 of the Civil Code[24] and Section 1 of Commonwealth Act No. 638[25] to publish
the presidential decrees. There was, therefore, no need for the petitioners in Tañada  to
make an initial demand from the Office of the President. In the instant case, PEA claims
it has no affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of
exhaustion of administrative remedies to the instant case in view of the failure of
petitioner here to demand initially from PEA the needed information.

The original JVA sought to dispose to AMARI public lands held by PEA, a government
corporation. Under Section 79 of the Government Auditing Code,[26]2 the disposition of
government lands to private parties requires public bidding. PEA was under a positive
legal duty to disclose to the public the terms and conditions for the sale of its lands.
The law obligated PEA to make this public disclosure even without demand from
petitioner or from anyone. PEA failed to make this public disclosure because the original
JVA, like the Amended JVA, was the result of a negotiated contract, not of a public
bidding. Considering that PEA had an affirmative statutory duty to make the public
disclosure, and was even in breach of this legal duty, petitioner had the right to seek
direct judicial intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of
administrative remedies does not apply when the issue involved is a purely legal or
constitutional question.[27] The principal issue in the instant case is the capacity of
AMARI to acquire lands held by PEA in view of the constitutional ban prohibiting the
alienation of lands of the public domain to private corporations. We rule that the
principle of exhaustion of administrative remedies does not apply in the instant case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to

enforce his constitutional right to information without a showing that PEA refused to
perform an affirmative duty imposed on PEA by the Constitution. PEA also claims that
petitioner has not shown that he will suffer any concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no actual controversy requiring the
exercise of the power of judicial review.

The petitioner has standing to bring this taxpayer’s suit because the petition seeks to
compel PEA to comply with its constitutional duties. There are two constitutional issues
involved here. First is the right of citizens to information on matters of public concern.
Second is the application of a constitutional provision intended to insure the equitable
distribution of alienable lands of the public domain among Filipino citizens. The thrust of
the first issue is to compel PEA to disclose publicly information on the sale of
government lands worth billions of pesos, information which the Constitution and
statutory law mandate PEA to disclose. The thrust of the second issue is to
prevent PEA from alienating hundreds of hectares of alienable lands of the public
domain in violation of the Constitution, compelling PEA to comply with a constitutional
duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public.
In Chavez v. PCGG,[28] the Court upheld the right of a citizen to bring a taxpayer’s suit on
matters of transcendental importance to the public, thus -

“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 ‘immediately 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, such as in this
case. He invokes several decisions of this Court which have set aside the procedural
matter of locus standi, when the subject of the case involved public interest.

xxx

In Tañada v. Tuvera, 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. 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, 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, while reiterating Tañada, 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.’

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have
been involved under the questioned contract for the development, management and
operation of the Manila International Container Terminal, ‘public interest [was]
definitely involved considering the important role [of the subject contract] . . . 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 petitioner's
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 petitioner's 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.”

We rule that since the instant petition, brought by a citizen, involves the enforcement of
constitutional rights - to information and to the equitable diffusion of natural resources -
matters of transcendental public importance, the petitioner has the requisite locus
standi.

Fifth issue: whether the constitutional right to information includes official information
on on-going negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people’s right to information on
matters of public concern in this manner:

“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 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.” (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest
reinforces the people’s right to information on matters of public concern. This State
policy is expressed in Section 28, Article II of the Constitution, thus:

“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.” (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-

making and in the operations of the government, as well as provide the people sufficient
information to exercise effectively other constitutional rights. These twin provisions are
essential to the exercise of freedom of expression. If the government does not disclose
its official acts, transactions and decisions to citizens, whatever citizens say, even if
expressed without any restraint, will be speculative and amount to nothing. These twin
provisions are also essential to hold public officials “at all times x x x accountable to the
people,”[29] for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies and
their effective implementation. An informed citizenry is essential to the existence and
proper functioning of any democracy. As explained by the Court in Valmonte v.
Belmonte, Jr.[30]–

“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.”

PEA asserts, citing Chavez  v. PCGG,[31] that in cases of on-going negotiations the right to

information is limited to “definite propositions of the government.” PEA maintains the
right does not include access to “intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still in the process of
being formulated or are in the ‘exploratory stage’.”

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage
or before the closing of the transaction. To support its contention, AMARI cites the
following discussion in the 1986 Constitutional Commission:

“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.”[32] (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke
the right. Requiring government officials to reveal their deliberations at the pre-
decisional stage will degrade the quality of decision-making in government agencies.
Government officials will hesitate to express their real sentiments during deliberations if
there is immediate public dissemination of their discussions, putting them under all
kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to
disclose publicly, and information the constitutional right to information requires PEA to
release to the public. Before the consummation of the contract, PEA must, on its own
and without demand from anyone, disclose to the public matters relating to the
disposition of its property. These include the size, location, technical description and
nature of the property being disposed of, the terms and conditions of the disposition,
the parties qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of the disposition
process, long before the consummation of the contract, because the Government
Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen
can demand from PEA this information at any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being

undertaken by the bidding or review committee is not immediately accessible under the
right to information. While the evaluation or review is still on-going, there are no
“official acts, transactions, or decisions” on the bids or proposals. However, once the
committee makes its official recommendation, there arises a “definite proposition” on
the part of the government. From this moment, the public’s right to information
attaches, and any citizen can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,[33] the Court ruled as follows:

“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 during
the stage when common assertions are still in the process of being formulated or are in
the “exploratory” stage. There is 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.” (Emphasis supplied)

Contrary to AMARI’s contention, the commissioners of the 1986 Constitutional

Commission understood that the right to information “contemplates inclusion of
negotiations leading to the consummation of the transaction.” Certainly, a
consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes
a fait accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public discussion
of any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by
the State of its avowed “policy of full disclosure of all its transactions involving public
interest.”

The right covers three categories of information which are “matters of public concern,”
namely: (1) official records; (2) documents and papers pertaining to official acts,
transactions and decisions; and (3) government research data used in formulating
policies. The first category refers to any document that is part of the public records in
the custody of government agencies or officials. The second category refers to
documents and papers recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of government agencies or
officials. The third category refers to research data, whether raw, collated or processed,
owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes
evaluation reports, recommendations, legal and expert opinions, minutes of meetings,
terms of reference and other documents attached to such reports or minutes, all
relating to the JVA. However, the right to information does not compel PEA to prepare
lists, abstracts, summaries and the like relating to the renegotiation of the JVA.[34] The
right only affords access to records, documents and papers, which means the
opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject
to reasonable regulations to protect the integrity of the public records and to minimize
disruption to government operations, like rules specifying when and how to conduct the
inspection and copying.[35]

The right to information, however, does not extend to matters recognized as privileged
information under the separation of powers.[36] The right does not also apply to
information on military and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential.[37] The
right may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door Cabinet
meetings which, like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress,[38] are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power.[39] This is not the situation in the instant case.

We rule, therefore, that the constitutional right to information includes official

information on on-going negotiations before a final contract. The information,
however, must constitute definite propositions by the government and should not cover
recognized exceptions like privileged information, military and diplomatic secrets and
similar matters affecting national security and public order.[40] Congress has also
prescribed other limitations on the right to information in several legislations.[41]

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the
Regalian doctrine which holds that the State owns all lands and waters of the public
domain. Upon the Spanish conquest of the Philippines, ownership of all “lands,
territories and possessions” in the Philippines passed to the Spanish Crown.[42] The King,
as the sovereign ruler and representative of the people, acquired and owned all lands
and territories in the Philippines except those he disposed of by grant or sale to private
individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting,
however, the State, in lieu of the King, as the owner of all lands and waters of the public
domain. The Regalian doctrine is the foundation of the time-honored principle of land
ownership that “all lands that were not acquired from the Government, either by
purchase or by grant, belong to the public domain.”[43] Article 339 of the Civil Code of
1889, which is now Article 420 of the Civil Code of 1950, incorporated the Regalian
doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership
and disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine
Commission enacted Act No. 1654 which provided for the lease, but not the sale, of
reclaimed lands of the government to corporations and individuals. Later, on
November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the government
to corporations and individuals. On November 7, 1936, the National Assembly passed
Commonwealth Act No. 141, also known as the Public Land Act, which authorized the
lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters
within the maritime zone of the Spanish territory belonged to the public domain for
public use.[44] The Spanish Law of Waters of 1866 allowed the reclamation of the sea
under Article 5, which provided as follows:

“Article 5. Lands reclaimed from the sea in consequence of works constructed by the
State, or by the provinces, pueblos or private persons, with proper permission, shall
become the property of the party constructing such works, unless otherwise provided
by the terms of the grant of authority.”

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party
undertaking the reclamation, provided the government issued the necessary permit and
did not reserve ownership of the reclaimed land to the State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

“Art. 339. Property of public dominion is –

1.  That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;

2.  That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as
walls, fortresses, and other works for the defense of the territory, and mines, until
granted to private individuals.”
Property devoted to public use referred to property open for use by the public. In
contrast, property devoted to public service referred to property used for some specific
public service and open only to those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but
also to property not so used but employed to develop the national wealth. This class of
property constituted property of public dominion although employed for some
economic or commercial activity to increase the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public
dominion into private property, to wit:

“Art. 341. Property of public dominion, when no longer devoted to public use or to the
defense of the territory, shall become a part of the private property of the State.”

This provision, however, was not self-executing. The legislature, or the executive
department pursuant to law, must declare the property no longer needed for public use
or territorial defense before the government could lease or alienate the property to
private parties.[45]

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the
lease of reclaimed and foreshore lands. The salient provisions of this law were as
follows:

“Section 1. The control and disposition of the foreshore as defined in existing law, and
the title to all Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine Islands, shall be retained by
the Government without prejudice to vested rights and without prejudice to rights
conceded to the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands
made or reclaimed by the Government by dredging or filling or otherwise to be divided
into lots or blocks, with the necessary streets and alleyways located thereon, and shall
cause plats and plans of such surveys to be prepared and filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to
the public that such parts of the lands so made or reclaimed as are not needed for
public purposes will be leased for commercial and business purposes, x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-General
may by executive order prescribe.” (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed
by the government. The Act also vested in the government control and disposition of
foreshore lands. Private parties could lease lands reclaimed by the government only if
these lands were no longer needed for public purpose. Act No. 1654 mandated public
bidding in the lease of government reclaimed lands. Act No. 1654 made government
reclaimed lands sui generis in that unlike other public lands which the government
could sell to private parties, these reclaimed lands were available only for lease to
private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866.
Act No. 1654 did not prohibit private parties from reclaiming parts of the sea under
Section 5 of the Spanish Law of Waters. Lands reclaimed from the sea by private parties
with government permission remained private lands.

Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land
Act.[46] The salient provisions of Act No. 2874, on reclaimed lands, were as follows:

“Sec. 6. The Governor-General, upon the recommendation of the Secretary of

Agriculture and Natural Resources, shall from time to time classify the lands of the
public domain into –

(a)  Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable
public lands, the Governor-General, upon recommendation by the Secretary of
Agriculture and Natural Resources, shall from time to time declare what lands are
open to disposition or concession under this Act.”

Sec. 8. Only those lands shall be declared open to disposition or concession which have
been officially delimited or classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral
land, shall be classified as suitable for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural purposes, and shall be
open to disposition or concession, shall be disposed of under the provisions of this
chapter, and not otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be
disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for the public service and are
open to disposition under this chapter. The lands included in class (d) may be disposed
of by sale or lease under the provisions of this Act.” (Emphasis supplied)

Section 6 of Act No. 2874 authorized the Governor-General to “classify lands of the
public domain into x x x alienable or disposable”[47] lands. Section 7 of the Act
empowered the Governor-General to “declare what lands are open to disposition or
concession.” Section 8 of the Act limited alienable or disposable lands only to those
lands which have been “officially delimited and classified.”

Section 56 of Act No. 2874 stated that lands “disposable under this title[48] shall be
classified” as government reclaimed, foreshore and marshy lands, as well as other lands.
All these lands, however, must be suitable for residential, commercial, industrial or
other productive non-agricultural purposes. These provisions vested upon the
Governor-General the power to classify inalienable lands of the public domain into
disposable lands of the public domain. These provisions also empowered the Governor-
General to classify further such disposable lands of the public domain into government
reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public
domain classified as government reclaimed, foreshore and marshy lands “shall be
disposed of to private parties by lease only and not otherwise.” The Governor-General,
before allowing the lease of these lands to private parties, must formally declare that
the lands were “not necessary for the public service.” Act No. 2874 reiterated the State
policy to lease and not to sell government reclaimed, foreshore and marshy lands of the
public domain, a policy first enunciated in 1907 in Act No. 1654. Government reclaimed,
foreshore and marshy lands remained sui generis, as the only alienable or disposable
lands of the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and
marshy public lands for non-agricultural purposes retain their inherent potential as
areas for public service. This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always reserved these
lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore
and marshy lands into other non-agricultural lands under Section 56 (d). Lands falling
under Section 56 (d) were the only lands for non-agricultural purposes the government
could sell to private parties. Thus, under Act No. 2874, the government could not sell
government reclaimed, foreshore and marshy lands to private parties, unless the
legislature passed a law allowing their sale.[49]
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant
to Section 5 of the Spanish Law of Waters of 1866. Lands reclaimed from the sea by
private parties with government permission remained private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino
people. The 1935 Constitution, in adopting the Regalian doctrine, declared in Section 1,
Article XIII, that –

“Section 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy and
other natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines or
to corporations or associations at least sixty per centum of the capital of which is owned
by such citizens, subject to any existing right, grant, lease, or concession at the time of
the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and limit of the grant.” (Emphasis
supplied)

The 1935 Constitution barred the alienation of all natural resources except public
agricultural lands, which were the only natural resources the State could alienate. Thus,
foreshore lands, considered part of the State’s natural resources, became inalienable by
constitutional fiat, available only for lease for 25 years, renewable for another 25 years.
The government could alienate foreshore lands only after these lands were reclaimed
and classified as alienable agricultural lands of the public domain. Government
reclaimed and marshy lands of the public domain, being neither timber nor mineral
lands, fell under the classification of public agricultural lands.[50] However, government
reclaimed and marshy lands, although subject to classification as disposable public
agricultural lands, could only be leased and not sold to private parties because of Act
No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed

and marshy lands of the public domain was only a statutory prohibition and the
legislature could therefore remove such prohibition. The 1935 Constitution did not
prohibit individuals and corporations from acquiring government reclaimed and marshy
lands of the public domain that were classified as agricultural lands under existing public
land laws. Section 2, Article XIII of the 1935 Constitution provided as follows:

“Section 2. No private corporation or association may acquire, lease, or hold public
agricultural lands in excess of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one hundred and forty hectares,
or by lease in excess of one thousand and twenty-four hectares, or by homestead in
excess of twenty-four hectares. Lands adapted to grazing, not exceeding two thousand
hectares, may be leased to an individual, private corporation, or association.” (Emphasis
supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section
58 of Act No. 2874 to open for sale to private parties government reclaimed and marshy
lands of the public domain. On the contrary, the legislature continued the long
established State policy of retaining for the government title and ownership of
government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141,
also known as the Public Land Act, which compiled the then existing laws on lands of the
public domain. CA No. 141, as amended, remains to this day the existing general
law governing the classification and disposition of lands of the public domain other than
timber and mineral lands.[51]

Section 6 of CA No. 141 empowers the President to classify lands of the public domain
into “alienable or disposable”[52] lands of the public domain, which prior to such
classification are inalienable and outside the commerce of man. Section 7 of CA No. 141
authorizes the President to “declare what lands are open to disposition or concession.”
Section 8 of CA No. 141 states that the government can declare open for disposition or
concession only lands that are “officially delimited and classified.” Sections 6, 7 and 8 of
CA No. 141 read as follows:

“Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and

Commerce, shall from time to time classify the lands of the public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another,
[53]
 for the purpose of their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and
Commerce, shall from time to time declare what lands are open to disposition or
concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which have
been officially delimited and classified and, when practicable, surveyed, and which
have not been reserved for public or quasi-public uses, nor appropriated by the
Government, nor in any manner become private property, nor those on which a private
right authorized and recognized by this Act or any other valid law may be claimed, or
which, having been reserved or appropriated, have ceased to be so. x x x.”
Thus, before the government could alienate or dispose of lands of the public domain,
the President must first officially classify these lands as alienable or disposable, and then
declare them open to disposition or concession. There must be no law reserving these
lands for public or quasi-public uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy
lands of the public domain, are as follows:

“Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this chapter and
not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case
may be, to any person, corporation, or association authorized to purchase or lease
public lands for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be
disposed of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture, shall declare that the
same are not necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or lease under the
provisions of this Act.” (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution,

Section 58 of Act No. 2874 prohibiting the sale of government reclaimed, foreshore and
marshy disposable lands of the public domain. All these lands are intended for
residential, commercial, industrial or other non-agricultural purposes. As before, Section
61 allowed only the lease of such lands to private parties. The government could sell to
private parties only lands falling under Section 59 (d) of CA No. 141, or those lands for
non-agricultural purposes not classified as government reclaimed, foreshore and marshy
disposable lands of the public domain. Foreshore lands, however, became inalienable
under the 1935 Constitution which only allowed the lease of these lands to qualified
private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain
intended for residential, commercial, industrial or other productive purposes other than
agricultural “shall be disposed of under the provisions of this chapter and not
otherwise.” Under Section 10 of CA No. 141, the term “disposition” includes lease of the
land. Any disposition of government reclaimed, foreshore and marshy disposable lands
for non-agricultural purposes must comply with Chapter IX, Title III of CA No. 141,
[54]
 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v.
Court of Appeals,[55] Justice Reynato S. Puno summarized succinctly the law on this
matter, as follows:

“Foreshore lands are lands of public dominion intended for public use. So too are lands
reclaimed by the government by dredging, filling, or other means. Act 1654 mandated
that the control and disposition of the foreshore and lands under water remained in the
national government. Said law allowed only the ‘leasing’ of reclaimed land. The Public
Land Acts of 1919 and 1936 also declared that the foreshore and lands reclaimed by the
government were to be “disposed of to private parties by lease only and not otherwise.”
Before leasing, however, the Governor-General, upon recommendation of the Secretary
of Agriculture and Natural Resources, had first to determine that the land reclaimed was
not necessary for the public service. This requisite must have been met before the land
could be disposed of. But even then, the foreshore and lands under water were not to
be alienated and sold to private parties. The disposition of the reclaimed land was
only by lease. The land remained property of the State.” (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, “Commonwealth Act No. 141 has
remained in effect at present.”

The State policy prohibiting the sale to private parties of government reclaimed,
foreshore and marshy alienable lands of the public domain, first implemented in 1907
was thus reaffirmed in CA No. 141 after the 1935 Constitution took effect. The
prohibition on the sale of foreshore lands, however, became a constitutional edict under
the 1935 Constitution. Foreshore lands became inalienable as natural resources of the
State, unless reclaimed by the government and classified as agricultural lands of the
public domain, in which case they would fall under the classification of government
reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy
disposable lands of the public domain continued to be only leased and not sold to
private parties.[56] These lands remained sui generis, as the only alienable or disposable
lands of the public domain the government could not sell to private parties.

Since then and until now, the only way the government can sell to private parties
government reclaimed and marshy disposable lands of the public domain is for the
legislature to pass a law authorizing such sale. CA No. 141 does not authorize the
President to reclassify government reclaimed and marshy lands into other non-
agricultural lands under Section 59 (d). Lands classified under Section 59 (d) are the only
alienable or disposable lands for non-agricultural purposes that the government could
sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority before
lands under Section 59 that the government previously transferred to government units
or entities could be sold to private parties. Section 60 of CA No. 141 declares that –

“Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the
Secretary of Agriculture and Natural Resources, be reasonably necessary for the
purposes for which such sale or lease is requested, and shall not exceed one hundred
and forty-four hectares: Provided, however, That this limitation shall not apply to
grants, donations, or transfers made to a province, municipality or branch or subdivision
of the Government for the purposes deemed by said entities conducive to the public
interest; but the land so granted, donated, or transferred to a province, municipality
or branch or subdivision of the Government shall not be alienated, encumbered, or
otherwise disposed of in a manner affecting its title, except when authorized by
Congress:  x x x.” (Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative
authority required in Section 56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted
government units and entities from the maximum area of public lands that could be
acquired from the State. These government units and entities should not just turn
around and sell these lands to private parties in violation of constitutional or statutory
limitations. Otherwise, the transfer of lands for non-agricultural purposes to
government units and entities could be used to circumvent constitutional limitations on
ownership of alienable or disposable lands of the public domain. In the same manner,
such transfers could also be used to evade the statutory prohibition in CA No. 141 on
the sale of government reclaimed and marshy lands of the public domain to private
parties. Section 60 of CA No. 141 constitutes by operation of law a lien on these lands.[57]

In case of sale or lease of disposable lands of the public domain falling under Section 59
of CA No. 141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No.
141 provide as follows:

“Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for
public purposes, the Director of Lands shall ask the Secretary of Agriculture and
Commerce (now the Secretary of Natural Resources) for authority to dispose of the
same. Upon receipt of such authority, the Director of Lands shall give notice by public
advertisement in the same manner as in the case of leases or sales of agricultural public
land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be
made to the highest bidder. x x x.” (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales
of alienable or disposable lands of the public domain.[58]

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the
Spanish Law of Waters of 1866. Private parties could still reclaim portions of the sea
with government permission. However, the reclaimed land could become private land
only if classified as alienable agricultural land of the public domain open to disposition
under CA No. 141. The 1935 Constitution prohibited the alienation of all natural
resources except public agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public
dominion found in the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950
state that –

“Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar
character;

(2) Those which belong to the State, without being for public use, and are intended for
some public service or for the development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for
public service, shall form part of the patrimonial property of the State.”

Again, the government must formally declare that the property of public dominion is no
longer needed for public use or public service, before the same could be classified as
patrimonial property of the State.[59] In the case of government reclaimed and marshy
lands of the public domain, the declaration of their being disposable, as well as the
manner of their disposition, is governed by the applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public
dominion those properties of the State which, without being for public use, are
intended for public service or the “development of the national wealth.” Thus,
government reclaimed and marshy lands of the State, even if not employed for public
use or public service, if developed to enhance the national wealth, are classified as
property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the
Regalian doctrine. Section 8, Article XIV of the 1973 Constitution stated that –

“Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources
of the Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases, beneficial
use may be the measure and the limit of the grant.” (Emphasis supplied)

The 1973 Constitution prohibited the alienation of all natural resources with the
exception of “agricultural, industrial or commercial, residential, and resettlement lands
of the public domain.” In contrast, the 1935 Constitution barred the alienation of all
natural resources except “public agricultural lands.” However, the term “public
agricultural lands” in the 1935 Constitution encompassed industrial, commercial,
residential and resettlement lands of the public domain.[60] If the land of public domain
were neither timber nor mineral land, it would fall under the classification of agricultural
land of the public domain. Both the 1935 and 1973 Constitutions, therefore, prohibited
the alienation of all natural resources except agricultural lands of the public domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to
individuals who were citizens of the Philippines. Private corporations, even if wholly
owned by Philippine citizens, were no longer allowed to acquire alienable lands of the
public domain unlike in the 1935 Constitution. Section 11, Article XIV of the 1973
Constitution declared that –

“Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and
development requirements of the natural resources, shall determine by law the size of
land of the public domain which may be developed, held or acquired by, or leased to,
any qualified individual, corporation, or association, and the conditions therefor. No
private corporation or association may hold alienable lands of the public domain
except by lease not to exceed one thousand hectares in area nor may any citizen hold
such lands by lease in excess of five hundred hectares or acquire by purchase,
homestead or grant, in excess of twenty-four hectares. No private corporation or
association may hold by lease, concession, license or permit, timber or forest lands and
other timber or forest resources in excess of one hundred thousand hectares. However,
such area may be increased by the Batasang Pambansa upon recommendation of the
National Economic and Development Authority.” (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of
the public domain only through lease. Only individuals could now acquire alienable
lands of the public domain, and private corporations became absolutely barred from
acquiring any kind of alienable land of the public domain. The constitutional ban
extended to all kinds of alienable lands of the public domain, while the statutory ban
under CA No. 141 applied only to government reclaimed, foreshore and marshy
alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No.
1084 creating PEA, a wholly government owned and controlled corporation with a
special charter. Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes
and powers:
“Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell
any and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the
efficient, economical and beneficial utilization of the above properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain  in excess of the area permitted to private
corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream,

watercourse, canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified.” (Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the
public domain. Foreshore areas are those covered and uncovered by the ebb and flow
of the tide.[61] Submerged areas are those permanently under water regardless of the
ebb and flow of the tide.[62] Foreshore and submerged areas indisputably belong to the
public domain[63] and are inalienable unless reclaimed, classified as alienable lands open
to disposition, and further declared no longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands
of the public domain did not apply to PEA since it was then, and until today, a fully
owned government corporation. The constitutional ban applied then, as it still applies
now, only to “private corporations and associations.” PD No. 1084 expressly
empowers PEA “to hold lands of the public domain”  even  “in excess of the area
permitted to private corporations by statute.” Thus, PEA can hold title to private lands,
as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the

public domain, there must be legislative authority empowering PEA to sell these lands.
This legislative authority is necessary in view of Section 60 of CA No.141, which states –

“Sec. 60. x x x; but the land so granted, donated or transferred to a province,

municipality, or branch or subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress; x x x.” (Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed
foreshore and submerged alienable lands of the public domain. Nevertheless, any
legislative authority granted to PEA to sell its reclaimed alienable lands of the public
domain would be subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. Hence, such legislative authority could
only benefit private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the
Regalian doctrine. The 1987 Constitution declares that all natural resources are “owned
by the State,” and except for alienable agricultural lands of the public domain, natural
resources cannot be alienated. Sections 2 and 3, Article XII of the 1987 Constitution
state that –

“Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated.  The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber,
mineral lands, and national parks. Agricultural lands of the public domain may be
further classified by law according to the uses which they may be devoted. Alienable
lands of the public domain shall be limited to agricultural lands. Private corporations
or associations may not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable for not more than
twenty-five years, and not to exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares, or acquire not more than
twelve hectares thereof by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law,
the size of lands of the public domain which may be acquired, developed, held, or
leased and the conditions therefor.” (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning
private corporations from acquiring any kind of alienable land of the public domain.
Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold
alienable lands of the public domain only through lease. As in the 1935 and 1973
Constitutions, the general law governing the lease to private corporations of reclaimed,
foreshore and marshy alienable lands of the public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except
through lease, alienable lands of the public domain is not well understood. During the
deliberations of the 1986 Constitutional Commission, the commissioners probed the
rationale behind this ban, thus:

“FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which
says:

`No private corporation or association may hold alienable lands of the public domain
except by lease, not to exceed one thousand hectares in area.’

If we recall, this provision did not exist under the 1935 Constitution, but this was
introduced in the 1973 Constitution. In effect, it prohibits private corporations from
acquiring alienable public lands. But it has not been very clear in jurisprudence what
the reason for this is. In some of the cases decided in 1982 and 1983, it was indicated
that the purpose of this is to prevent large landholdings. Is that the intent of this
provision?

MR. VILLEGAS: I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances
where the Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land
where a chapel stood because the Supreme Court said it would be in violation of this.”
(Emphasis supplied)

In Ayog v. Cusi,[64] the Court explained the rationale behind this constitutional ban in this
way:

“Indeed, one purpose of the constitutional prohibition against purchases of public

agricultural lands by private corporations is to equitably diffuse land ownership or to
encourage ‘owner-cultivatorship and the economic family-size farm’ and to prevent a
recurrence of cases like the instant case. Huge landholdings by corporations or private
persons had spawned social unrest.”

However, if the constitutional intent is to prevent huge landholdings, the Constitution

could have simply limited the size of alienable lands of the public domain that
corporations could acquire. The Constitution could have followed the limitations on
individuals, who could acquire not more than 24 hectares of alienable lands of the
public domain under the 1973 Constitution, and not more than 12 hectares under the
1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land
in the name of a corporation would be more effective in preventing the break-up of
farmlands. If the farmland is registered in the name of a corporation, upon the death of
the owner, his heirs would inherit shares in the corporation instead of subdivided
parcels of the farmland. This would prevent the continuing break-up of farmlands into
smaller and smaller plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional limitation on
individuals from acquiring more than the allowed area of alienable lands of the public
domain. Without the constitutional ban, individuals who already acquired the maximum
area of alienable lands of the public domain could easily set up corporations to acquire
more alienable public lands. An individual could own as many corporations as his means
would allow him. An individual could even hide his ownership of a corporation by
putting his nominees as stockholders of the corporation. The corporation is a convenient
vehicle to circumvent the constitutional limitation on acquisition by individuals of
alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer
ownership of only a limited area of alienable land of the public domain to a qualified
individual. This constitutional intent is safeguarded by the provision prohibiting
corporations from acquiring alienable lands of the public domain, since the vehicle to
circumvent the constitutional intent is removed. The available alienable public lands are
gradually decreasing in the face of an ever-growing population. The most effective way
to insure faithful adherence to this constitutional intent is to grant or sell alienable lands
of the public domain only to individuals. This, it would seem, is the practical benefit
arising from the constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists
of three properties, namely:

1. “[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;”
2. “[A]nother area of 2,421,559 square meters contiguous to the three
islands;” and
3. “[A]t AMARI’s option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area.”[65]

PEA confirms that the Amended JVA involves “the development of the Freedom Islands
and further reclamation of about 250 hectares x x x,” plus an option “granted to AMARI
to subsequently reclaim another 350 hectares x x x.”[66]

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84
hectares of the 750-hectare reclamation project have been reclaimed, and the rest of
the 592.15 hectares are still submerged areas forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00

for PEA’s “actual cost” in partially reclaiming the Freedom Islands. AMARI will also
complete, at its own expense, the reclamation of the Freedom Islands. AMARI will
further shoulder all the reclamation costs of all the other areas, totaling 592.15
hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70
percent and 30 percent, respectively, the total net usable area which is defined in the
Amended JVA as the total reclaimed area less 30 percent earmarked for common areas.
Title to AMARI’s share in the net usable area, totaling 367.5 hectares, will be issued in
the name of AMARI. Section 5.2 (c) of the Amended JVA provides that –
“x x x, PEA shall have the duty to execute without delay the necessary deed of transfer
or conveyance of the title pertaining to AMARI’s Land share based on the Land
Allocation Plan. PEA, when requested in writing by AMARI, shall then cause the
issuance and delivery of the proper certificates of title covering AMARI’s Land Share in
the name of AMARI, x x x; provided, that if more than seventy percent (70%) of the
titled area at any given time pertains to AMARI, PEA shall deliver to AMARI only seventy
percent (70%) of the titles pertaining to AMARI, until such time when a corresponding
proportionate area of additional land pertaining to PEA has been titled.” (Emphasis
supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of
367.5 hectares of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint

venture PEA’s statutory authority, rights and privileges to reclaim foreshore and
submerged areas in Manila Bay. Section 3.2.a of the Amended JVA states that –

“PEA hereby contributes to the joint venture its rights and privileges to perform
Rawland Reclamation and Horizontal Development as well as own the Reclamation
Area, thereby granting the Joint Venture the full and exclusive right, authority and
privilege to undertake the Project in accordance with the Master Development Plan.”

The Amended JVA is the product of a renegotiation of the original JVA dated April 25,
1995 and its supplemental agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own
under the Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in
Manila Bay in view of Sections 2 and 3, Article XII of the 1987 Constitution which state
that:

“Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. x x x.

xxx

Section 3. x x x Alienable lands of the public domain shall be limited to agricultural

lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, x x x.”(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila
Bay are alienable or disposable lands of the public domain. In its Memorandum,
[67]
 PEA admits that –
“Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as
alienable and disposable lands of the public domain:

‘Sec. 59. The lands disposable under this title shall be classified as follows:

(a)     Lands reclaimed by the government by dredging, filling, or other

means;
x x x.’” (Emphasis supplied)

Likewise, the Legal Task Force[68] constituted under Presidential Administrative Order

No. 365 admitted in its Report and Recommendation to then President Fidel V. Ramos,
“[R]eclaimed lands are classified as alienable and disposable lands of the public
domain.”[69] The Legal Task Force concluded that –

“D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the
rights of ownership and disposition over reclaimed lands have been transferred to PEA,
by virtue of which PEA, as owner, may validly convey the same to any qualified person
without violating the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public land,
except by lease (Sec. 3, Art. XVII,[70] 1987 Constitution), does not apply to reclaimed
lands whose ownership has passed on to PEA by statutory grant.”

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas
of Manila Bay are part of the “lands of the public domain, waters x x x and other natural
resources” and consequently “owned by the State.” As such, foreshore and submerged
areas “shall not be alienated,” unless they are classified as “agricultural lands” of the
public domain. The mere reclamation of these areas by PEA does not convert these
inalienable natural resources of the State into alienable or disposable lands of the public
domain. There must be a law or presidential proclamation officially classifying these
reclaimed lands as alienable or disposable and open to disposition or concession.
Moreover, these reclaimed lands cannot be classified as alienable or disposable if the
law has reserved them for some public or quasi-public use.[71]

Section 8 of CA No. 141 provides that “only those lands shall be declared open to
disposition or concession which have been officially delimited and classified.”[72] The
President has the authority to classify inalienable lands of the public domain into
alienable or disposable lands of the public domain, pursuant to Section 6 of CA No. 141.
In Laurel  vs. Garcia,[73] the Executive Department attempted to sell the Roppongi
property in Tokyo, Japan, which was acquired by the Philippine Government for use as
the Chancery of the Philippine Embassy. Although the Chancery had transferred to
another location thirteen years earlier, the Court still ruled that, under Article 422[74] of
the Civil Code, a property of public dominion retains such character until formally
declared otherwise. The Court ruled that –

“The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public
domain, not available for private appropriation or ownership ‘until there is a formal
declaration on the part of the government to withdraw it from being such’ (Ignacio v.
Director of Lands, 108 Phil. 335 [1960].” (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents
for lands reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On
January 19, 1988 then President Corazon C. Aquino issued Special Patent No. 3517 in
the name of PEA for the 157.84 hectares comprising the partially reclaimed Freedom
Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality of
Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section
103 of PD No. 1529 authorizing the issuance of certificates of title corresponding to land
patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino’s actual issuance of a special patent

covering the Freedom Islands, is equivalent to an official proclamation classifying the
Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and
President Aquino’s issuance of a land patent also constitute a declaration that the
Freedom Islands are no longer needed for public service. The Freedom Islands are thus
alienable or disposable lands of the public domain, open to disposition or concession
to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already
reclaimed the Freedom Islands although subsequently there were partial erosions on
some areas. The government had also completed the necessary surveys on these
islands. Thus, the Freedom Islands were no longer part of Manila Bay but part of the
land mass. Section 3, Article XII of the 1987 Constitution classifies lands of the public
domain into “agricultural, forest or timber, mineral lands, and national parks.” Being
neither timber, mineral, nor national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural lands of the public domain. Under
the 1987 Constitution, agricultural lands of the public domain are the only natural
resources that the State may alienate to qualified private parties. All other natural
resources, such as the seas or bays, are “waters x x x owned by the State” forming part
of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987
Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private
corporation, reclaimed the islands under a contract dated November 20, 1973 with the
Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters
of 1866, argues that “if the ownership of reclaimed lands may be given to the party
constructing the works, then it cannot be said that reclaimed lands are lands of the
public domain which the State may not alienate.”[75] Article 5 of the Spanish Law of
Waters reads as follows:

“Article 5. Lands reclaimed from the sea in consequence of works constructed by the
State, or by the provinces, pueblos or private persons, with proper permission, shall
become the property of the party constructing such works, unless otherwise provided
by the terms of the grant of authority.” (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from
the sea only with “proper permission” from the State. Private parties could own the
reclaimed land only if not “otherwise provided by the terms of the grant of authority.”
This clearly meant that no one could reclaim from the sea without permission from the
State because the sea is property of public dominion. It also meant that the State could
grant or withhold ownership of the reclaimed land because any reclaimed land, like the
sea from which it emerged, belonged to the State. Thus, a private person reclaiming
from the sea without permission from the State could not acquire ownership of the
reclaimed land which would remain property of public dominion like the sea it replaced.
[76]
 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of
land ownership that “all lands that were not acquired from the government, either by
purchase or by grant, belong to the public domain.”[77]

Article 5 of the Spanish Law of Waters must be read together with laws subsequently
enacted on the disposition of public lands. In particular, CA No. 141 requires that lands
of the public domain must first be classified as alienable or disposable before the
government can alienate them. These lands must not be reserved for public or quasi-
public purposes.[78] Moreover, the contract between CDCP and the government was
executed after the effectivity of the 1973 Constitution which barred private
corporations from acquiring any kind of alienable land of the public domain. This
contract could not have converted the Freedom Islands into private lands of a private
corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the
power to reclaim lands. Section 1 of PD No. 3-A declared that –

“The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government
or any person authorized by it under a proper contract. (Emphasis supplied)

x x x.”

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because
reclamation of areas under water could now be undertaken only by the National
Government or by a person contracted by the National Government. Private parties may
reclaim from the sea only under a contract with the National Government, and no
longer by grant or permission as provided in Section 5 of the Spanish Law of Waters of
1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government’s implementing arm to undertake “all reclamation projects of the
government,” which “shall be undertaken by the PEA or through a proper contract
executed by it with any person or entity.” Under such contract, a private party receives
compensation for reclamation services rendered to PEA. Payment to the contractor may
be in cash, or in kind consisting of portions of the reclaimed land, subject to the
constitutional ban on private corporations from acquiring alienable lands of the public
domain. The reclaimed land can be used as payment in kind only if the reclaimed land is
first classified as alienable or disposable land open to disposition, and then declared no
longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15
hectares which are still submerged and forming part of Manila Bay. There is no
legislative or Presidential act classifying these submerged areas as alienable or
disposable lands of the public domain open to disposition. These submerged areas are
not covered by any patent or certificate of title.  There can be no dispute that these
submerged areas form part of the public domain, and in their present state
are inalienable and outside the commerce of man. Until reclaimed from the sea, these
submerged areas are, under the Constitution, “waters x x x owned by the State,”
forming part of the public domain and consequently inalienable. Only when actually
reclaimed from the sea can these submerged areas be classified as public agricultural
lands, which under the Constitution are the only natural resources that the State may
alienate. Once reclaimed and transformed into public agricultural lands, the government
may then officially classify these lands as alienable or disposable lands open to
disposition. Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable or
disposable lands of the public domain and within the commerce of man.

The classification of PEA’s reclaimed foreshore and submerged lands into alienable or
disposable lands open to disposition is necessary because PEA is tasked under its charter
to undertake public services that require the use of lands of the public domain. Under
Section 5 of PD No. 1084, the functions of PEA include the following: “[T]o own or
operate railroads, tramways and other kinds of land transportation, x x x; [T]o construct,
maintain and operate such systems of sanitary sewers as may be necessary; [T]o
construct, maintain and operate such storm drains as may be necessary.” PEA is
empowered to issue “rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use.” Thus, part of the
reclaimed foreshore and submerged lands held by the PEA would actually be needed for
public use or service since many of the functions imposed on PEA by its charter
constitute essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA “shall be primarily

responsible for integrating, directing, and coordinating all reclamation projects for and
on behalf of the National Government.” The same section also states that “[A]ll
reclamation projects shall be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a proper contract executed by it
with any person or entity; x x x.” Thus, under EO No. 525, in relation to PD No. 3-A and
PD No.1084, PEA became the primary implementing agency of the National Government
to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity “to undertake the reclamation of lands and
ensure their maximum utilization in promoting public welfare and interests.”[79] Since
large portions of these reclaimed lands would obviously be needed for public service,
there must be a formal declaration segregating reclaimed lands no longer needed for
public service from those still needed for public service.

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA “shall belong to or
be owned by the PEA,” could not automatically operate to classify inalienable lands into
alienable or disposable lands of the public domain. Otherwise, reclaimed foreshore and
submerged lands of the public domain would automatically become alienable once
reclaimed by PEA, whether or not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No.
525, vests in the Department of Environment and Natural Resources (“DENR” for
brevity) the following powers and functions:

“Sec. 4. Powers and Functions. The Department shall:

(1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public

lands, mineral resources and, in the process of exercising such control, impose
appropriate taxes, fees, charges, rentals and any such form of levy and collect such
revenues for the exploration, development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits,

concessions, lease agreements and such other privileges concerning the development,
exploration and utilization of the country’s marine, freshwater, and brackish water
and over all aquatic resources of the country and shall continue to oversee, supervise
and police our natural resources; cancel or cause to cancel such privileges upon failure,
non-compliance or violations of any regulation, order, and for all other causes which are
in furtherance of the conservation of natural resources and supportive of the national
interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of

the public domain and serve as the sole agency responsible for classification, sub-
classification, surveying and titling of lands in consultation with appropriate
agencies.”[80] (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR
exercises “supervision and control over alienable and disposable public lands.” DENR
also exercises “exclusive jurisdiction on the management and disposition of all lands of
the public domain.” Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs
authorization from DENR before PEA can undertake reclamation projects in Manila Bay,
or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public
domain. Hence, DENR decides whether reclaimed lands of PEA should be classified as
alienable under Sections 6[81] and 7[82] of CA No. 141. Once DENR decides that the
reclaimed lands should be so classified, it then recommends to the President the
issuance of a proclamation classifying the lands as alienable or disposable lands of the
public domain open to disposition. We note that then DENR Secretary Fulgencio S.
Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the Revised
Administrative Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas under
water, while PEA is vested with the power to undertake the physical reclamation of
areas under water, whether directly or through private contractors. DENR is also
empowered to classify lands of the public domain into alienable or disposable lands
subject to the approval of the President. On the other hand, PEA is tasked to develop,
sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas
does not make the reclaimed lands alienable or disposable lands of the public domain,
much less patrimonial lands of PEA. Likewise, the mere transfer by the National
Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.

Absent two official acts – a classification that these lands are alienable or disposable and
open to disposition and a declaration that these lands are not needed for public service,
lands reclaimed by PEA remain inalienable lands of the public domain. Only such an
official classification and formal declaration can convert reclaimed lands into alienable
or disposable lands of the public domain, open to disposition under the Constitution,
Title I and Title III[83] of CA No. 141 and other applicable laws.[84]

PEA’s Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public
domain, the reclaimed lands shall be disposed of in accordance with CA No. 141, the
Public Land Act. PEA, citing Section 60 of CA No. 141, admits that reclaimed lands
transferred to a branch or subdivision of the government “shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its title, except when
authorized by Congress: x x x.”[85] (Emphasis by PEA)

In Laurel  vs. Garcia,[86] the Court cited Section 48 of the Revised Administrative Code of
1987, which states that –

“Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x.”

Thus, the Court concluded that a law is needed to convey any real property belonging to
the Government. The Court declared that -

“It is not for the President to convey real property of the government on his or her own
sole will. Any such conveyance must be authorized and approved by a law enacted by
the Congress. It requires executive and legislative concurrence.” (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority
allowing PEA to sell its reclaimed lands. PD No. 1085, issued on February 4, 1977,
provides that –

“The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development
Corporation of the Philippines dated November 20, 1973 and/or any other contract or
reclamation covering the same area is hereby transferred, conveyed and assigned to
the ownership and administration of the Public Estates Authority established pursuant
to PD No. 1084; Provided, however, That the rights and interests of the Construction
and Development Corporation of the Philippines pursuant to the aforesaid contract shall
be recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the
obligations of the Republic of the Philippines (Department of Public Highways) arising
from, or incident to, the aforesaid contract between the Republic of the Philippines and
the Construction and Development Corporation of the Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority
shall issue in favor of the Republic of the Philippines the corresponding shares of stock
in said entity with an issued value of said shares of stock (which) shall be deemed fully
paid and non-assessable.

The Secretary of Public Highways and the General Manager of the Public Estates
Authority shall execute such contracts or agreements, including appropriate agreements
with the Construction and Development Corporation of the Philippines, as may be
necessary to implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in

favor of the Public Estates Authority without prejudice to the subsequent transfer to
the contractor or his assignees of such portion or portions of the land reclaimed or to
be reclaimed as provided for in the above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall issue the corresponding certificate of
title.” (Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -

“Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall

be responsible for its administration, development, utilization or disposition in
accordance with the provisions of Presidential Decree No. 1084. Any and all income that
the PEA may derive from the sale, lease or use of reclaimed lands shall be used in
accordance with the provisions of Presidential Decree No. 1084.”

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its
reclaimed lands. PD No. 1085 merely transferred “ownership and administration” of
lands reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands reclaimed
by PEA “shall belong to or be owned by PEA.” EO No. 525 expressly states
that PEA should dispose of its reclaimed lands “in accordance with the provisions of
Presidential Decree No. 1084,” the charter of PEA.

PEA’s charter, however, expressly tasks PEA “to develop, improve, acquire, administer,

deal in, subdivide, dispose, lease and sell any and all kinds of lands x x x owned,
managed, controlled and/or operated by the government.”[87] (Emphasis
supplied) There is, therefore, legislative authority granted to  PEA  to sell its lands,
whether patrimonial or alienable lands of the public domain. PEA may sell to private
parties its patrimonial properties in accordance with the PEA charter free from
constitutional limitations. The constitutional ban on private corporations from acquiring
alienable lands of the public domain does not apply to the sale of PEA’s patrimonial
lands.

PEA may also sell its alienable or disposable lands of the public domain to private
individuals since, with the legislative authority, there is no longer any statutory
prohibition against such sales and the constitutional ban does not apply to
individuals. PEA, however, cannot sell any of its alienable or disposable lands of the
public domain to private corporations since Section 3, Article XII of the 1987
Constitution expressly prohibits such sales. The legislative authority benefits only
individuals. Private corporations remain barred from acquiring any kind of alienable land
of the public domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be
transferred by PEA to the “contractor or his assignees” (Emphasis supplied) would not
apply to private corporations but only to individuals because of the constitutional ban.
Otherwise, the provisions of PD No. 1085 would violate both the 1973 and 1987
Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open
to disposition, and further declared no longer needed for public service, PEA would have
to conduct a public bidding in selling or leasing these lands. PEA must observe the
provisions of Sections 63 and 67 of CA No. 141 requiring public auction, in the absence
of a law exempting PEA from holding a public auction.[88] Special Patent No. 3517
expressly states that the patent is issued by authority of the Constitution and PD No.
1084, “supplemented by Commonwealth Act No. 141, as amended.” This is an
acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed
alienable lands of the public domain unless otherwise provided by law. Executive Order
No. 654,[89] which authorizes PEA “to determine the kind and manner of payment for the
transfer” of its assets and properties, does not exempt PEA from the requirement of
public auction. EO No. 654 merely authorizes PEA to decide the mode of payment,
whether in kind and in installment, but does not authorize PEA to dispense with public
auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government

Auditing Code, the government is required to sell valuable government property
through public bidding. Section 79 of PD No. 1445 mandates that –

“Section 79. When government property has become unserviceable for any cause, or is
no longer needed, it shall, upon application of the officer accountable therefor, be
inspected by the head of the agency or his duly authorized representative in the
presence of the auditor concerned and, if found to be valueless or unsaleable, it may be
destroyed in their presence. If found to be valuable, it may be sold at public auction to
the highest bidder under the supervision of the proper committee on award or similar
body in the presence of the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for not less
than three consecutive days in any newspaper of general circulation, or where the
value of the property does not warrant the expense of publication, by notices posted for
a like period in at least three public places in the locality where the property is to be
sold. In the event that the public auction fails, the property may be sold at a private
sale at such price as may be fixed by the same committee or body concerned and
approved by the Commission.”

It is only when the public auction fails that a negotiated sale is allowed, in which case
the Commission on Audit must approve the selling price.[90] The Commission on Audit
implements Section 79 of the Government Auditing Code through Circular No. 89-
296[91] dated January 27, 1989. This circular emphasizes that government assets must be
disposed of only through public auction, and a negotiated sale can be resorted to only in
case of “failure of public auction.”

At the public auction sale, only Philippine citizens are qualified to bid for PEA’s
reclaimed foreshore and submerged alienable lands of the public domain. Private
corporations are barred from bidding at the auction sale of any kind of alienable land of
the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10,
1991. PEA imposed a condition that the winning bidder should reclaim another 250
hectares of submerged areas to regularize the shape of the Freedom Islands, under a
60-40 sharing of the additional reclaimed areas in favor of the winning bidder.[92] No
one, however, submitted a bid. On December 23, 1994, the Government Corporate
Counsel advised PEA it could sell the Freedom Islands through negotiation, without need
of another public bidding, because of the failure of the public bidding on December 10,
1991.[93]

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands
and the additional 250 hectares still to be reclaimed, it also granted an option to AMARI
to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares.[94] The failure of public bidding on December 10, 1991,
involving only 407.84 hectares,[95] is not a valid justification for a negotiated sale of 750
hectares, almost double the area publicly auctioned. Besides, the failure of public
bidding happened on December 10, 1991, more than three years before the signing of
the original JVA on April 25, 1995. The economic situation in the country had greatly
improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is

absolute and clear: “Private corporations or associations may not hold such alienable
lands of the public domain except by lease, x x x.” Even Republic Act No. 6957 (“BOT
Law,” for brevity), cited by PEA and AMARI as legislative authority to sell reclaimed lands
to private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states –
“Sec. 6. Repayment Scheme. - For the financing, construction, operation and
maintenance of any infrastructure projects undertaken through the build-operate-and-
transfer arrangement or any of its variations pursuant to the provisions of this Act, the
project proponent x x x may likewise be repaid in the form of a share in the revenue of
the project or other non-monetary payments, such as, but not limited to, the grant of a
portion or percentage of the reclaimed land, subject to the constitutional requirements
with respect to the ownership of the land: x x x.” (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a

government BOT project, cannot acquire reclaimed alienable lands of the public domain
in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI,
authorizes local governments in land reclamation projects to pay the contractor or
developer in kind consisting of a percentage of the reclaimed land, to wit:

“Section 302. Financing, Construction, Maintenance, Operation, and Management of

Infrastructure Projects by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan

may consist of the grant of a portion or percentage of the reclaimed land or the
industrial estate constructed.”

Although Section 302 of the Local Government Code does not contain a proviso similar
to that of the BOT Law, the constitutional restrictions on land ownership automatically
apply even though not expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or
developer, if a corporate entity, can only be paid with leaseholds on portions of the
reclaimed land. If the contractor or developer is an individual, portions of the reclaimed
land, not exceeding 12 hectares[96] of non-agricultural lands, may be conveyed to him in
ownership in view of the legislative authority allowing such conveyance. This is the only
way these provisions of the BOT Law and the Local Government Code can avoid a direct
collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the “act of conveying the ownership of the reclaimed lands to
public respondent PEA transformed such lands of the public domain to private lands.”
This theory is echoed by AMARI which maintains that the “issuance of the special patent
leading to the eventual issuance of title takes the subject land away from the land of
public domain and converts the property into patrimonial or private property.” In
short, PEA and AMARI contend that with the issuance of Special Patent No. 3517 and
the corresponding certificates of titles, the 157.84 hectares comprising the Freedom
Islands have become private lands of PEA. In support of their theory, PEA and AMARI
cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,[97] where the Court held –

“Once the patent was granted and the corresponding certificate of title was issued, the
land ceased to be part of the public domain and became private property over which
the Director of Lands has neither control nor jurisdiction.”

2. Lee Hong Hok v. David,[98] where the Court declared -

“After the registration and issuance of the certificate and duplicate certificate of title
based on a public land patent, the land covered thereby automatically comes under the
operation of Republic Act 496 subject to all the safeguards provided therein.”

3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,[99] where the Court ruled -

“While the Director of Lands has the power to review homestead patents, he may do so
only so long as the land remains part of the public domain and continues to be under his
exclusive control; but once the patent is registered and a certificate of title is issued, the
land ceases to be part of the public domain and becomes private property over which
the Director of Lands has neither control nor jurisdiction.”

4. Manalo v. Intermediate Appellate Court,[100] where the Court held –

“When the lots in dispute were certified as disposable on May 19, 1971, and free
patents were issued covering the same in favor of the private respondents, the said lots
ceased to be part of the public domain and, therefore, the Director of Lands lost
jurisdiction over the same.”

5.Republic v. Court of Appeals,[101] where the Court stated –

“Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected
a land grant to the Mindanao Medical Center, Bureau of Medical Services, Department
of Health, of the whole lot, validly sufficient for initial registration under the Land
Registration Act. Such land grant is constitutive of a ‘fee simple’ title or absolute title in
favor of petitioner Mindanao Medical Center. Thus, Section 122 of the Act, which
governs the registration of grants or patents involving public lands, provides that
‘Whenever public lands in the Philippine Islands belonging to the Government of the
United States or to the Government of the Philippines are alienated, granted or
conveyed to persons or to public or private corporations, the same shall be brought
forthwith under the operation of this Act (Land Registration Act, Act 496) and shall
become registered lands.’”

The first four cases cited involve petitions to cancel the land patents and the
corresponding certificates of titles issued to private parties. These four cases uniformly
hold that the Director of Lands has no jurisdiction over private lands or that upon
issuance of the certificate of title the land automatically comes under the Torrens
System. The fifth case cited involves the registration under the Torrens System of a 12.8-
hectare public land granted by the National Government to Mindanao Medical Center, a
government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital buildings
and other facilities of Mindanao Medical Center, which performed a public service. The
Court affirmed the registration of the 12.8-hectare public land in the name of Mindanao
Medical Center under Section 122 of Act No. 496. This fifth case is an example of a
public land being registered under Act No. 496 without the land losing its character as a
property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name
of PEA, a wholly government owned corporation performing public as well as
proprietary functions. No patent or certificate of title has been issued to any private
party. No one is asking the Director of Lands to cancel PEA’s patent or certificates of
title. In fact, the thrust of the instant petition is that PEA’s certificates of title should
remain with PEA, and the land covered by these certificates, being alienable lands of the
public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant
private or public ownership of the land. Registration is not a mode of acquiring
ownership but is merely evidence of ownership previously conferred by any of the
recognized modes of acquiring ownership. Registration does not give the registrant a
better right than what the registrant had prior to the registration.[102] The registration of
lands of the public domain under the Torrens system, by itself, cannot convert public
lands into private lands.[103]

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of
title the alienable land of the public domain automatically becomes private land cannot
apply to government units and entities like PEA. The transfer of the Freedom Islands
to PEA was made subject to the provisions of CA No. 141 as expressly stated in Special
Patent No. 3517 issued by then President Aquino, to wit:

“NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines
and in conformity with the provisions of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby granted and conveyed unto
the Public Estates Authority the aforesaid tracts of land containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four (1,915,894) square
meters; the technical description of which are hereto attached and made an integral
part hereof.” (Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered
by PD No. 1084. Section 60 of CA No. 141 prohibits, “except when authorized by
Congress,” the sale of alienable lands of the public domain that are transferred to
government units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of
PD No. 1529, a “statutory lien affecting title” of the registered land even if not
annotated on the certificate of title.[104] Alienable lands of the public domain held by
government entities under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law authorizing their
disposition. Congress, however, cannot authorize the sale to private corporations of
reclaimed alienable lands of the public domain because of the constitutional ban. Only
individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA
No. 141 does not automatically convert alienable lands of the public domain into private
or patrimonial lands. The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to dispose of public lands,
before these lands can become private or patrimonial lands. Otherwise, the
constitutional ban will become illusory if Congress can declare lands of the public
domain as private or patrimonial lands in the hands of a government agency tasked to
dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly
public lands.

Under EO No. 525, PEA became the central implementing agency of the National

Government to reclaim foreshore and submerged areas of the public domain. Thus, EO
No. 525 declares that –

“EXECUTIVE ORDER NO. 525

Designating the