CONSTI 3.25.15

Right ot Health

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, vs.HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of an association with that of its members. An association has standing to file suit for its workers despite its lack of direct interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.

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x x x x

x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it and its members are in every practical sense identical. x x x The respondent [association] is but the medium through which its individual members seek to make more effective the expression of their voices and the redress of their grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association has the legal personality to represent its members because the results of the case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is formed "to represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine Government and any of its agencies, the medical professions and the general public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized9to take the appropriate course of action to bring to the attention of government agencies and the courts any grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on governmental action that would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be considered as a real party-in-interest which stands to be benefited or injured by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments10 regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been depicted in this wise:

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Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological orsubjective factor, that is, why they behave the way they do.

x x x x

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

x x x x

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.22 (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar products moving in international commerce,"27 and to "make recommendations to members with respect to any matter within the competence of the Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest international body in the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

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In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the code in the form of a recommendation rather than a regulation . x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the Organization, and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to the changing needs and demands of its constituents."39 Other international organizations which have resorted to soft law include the International Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law." WHO has during its existence generated many soft law norms, creating a "soft law regime" in international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions

clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution could inform the development of general and consistent state practice on infectious disease surveillance and outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and control.41

In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still considered not binding or enforceable, although said resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders and regulations concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive

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breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or those from ages two years old and beyond:

MILK CODE RIRRWHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products;

SECTION 4(e). "Infant" means a person falling within the age bracket of 0-12 months.

Section 2. Purpose –hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young childrenprotection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through appropriate marketing and distribution.

Section 5(ff). "Young Child" means a person from the age ofthan twelve (12) months up to the age of three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk":

MILK CODE RIRRWHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of

Section 4. Declaration of Principles –underlying principles from which the revised rules and regulations

breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products;

are premised upon:

a. Exclusive breastfeeding is for infants

b. There is no substitute or replacement

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is vague:

MILK CODE RIRRSECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

Section 4. Declaration of Principles –underlying principles from which the revised rules and regulations are premised upon:

x x x x

f. Advertising, promotions, or sponsor-shipsbreastmilk substitutes and other related products

Section 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and activitiesintended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.

Section 13. "Total Effect" of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim.

Section 15. Content of Materials.included in advertising, promotional and marketing materials:

a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In this connection, no pictures of babies and children together with their mothers, fathers, siblings, grandparents, other relatives or caregivers (or yayas) shall be used in any

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advertisements for infant formula and breastmilk supplements;

b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing breastmilk substitutes or milk supplements;

c. Pictures or texts that idealize the use of infant and milk formula.

Section 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRRSECTION 10. Containers/Label. –

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.

Section 26. Content –message, in both Filipino and English languages, and which message cannot be readily separated therefrom, relative the following points:

(a) The words or phrase "Important Notice" or "Government Warning" or their equivalent;

(b) A statement of the superiority of breastfeeding;

(c) A statement that there is no substitute for breastmilk

(d) A statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use;

(e) Instructions for appropriate prepara-tion, and a warning against the health hazards of inappropriate preparation; and

(f) The health hazards of unnecessary or improper use of infant formula and other related products including information that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity:

MILK CODE RIRRSECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or representatives of

products covered by the Code shall be allowed to conduct or be

(b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b).

SECTION 8. Health Workers. -

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle-feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).

involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding,in classes or seminars for women and children activities and to avoid the use of these venues to market their brands or company names.

SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health professionals; RIRR absolutely forbids the same.

MILK CODE RIRRSECTION 8. Health Workers –

(e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals,in accordance with the rules and regulations promulgated by the Ministry of Health.

Section 4. Declaration of Principles –

The following are the underlying principles from which the revised rules and regulations are premised upon:

i. Milk companies, and their representatives,of any policymaking body or entity in relation to the advancement of breasfeeding.

SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding,in classes or seminars for women and children activitiesavoid the use of these venues to market their brands or company names.

SECTION 32. Primary Responsibility of Health Workersprimary responsibility of the health workers to promote, protect and support breastfeeding and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding.logistics or training from milk companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRRSECTION 6. The General Public and Mothers. – Section 51. Donations Within the Scope of This Code

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(f) Nothing herein contained shall prevent donations from manufacturers and distributors of products within the scope of this Code upon request by or with the approval of the Ministry of Health.

of products, materials, defined and covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited.

Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives, whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRRSection 46. Administrative Sanctions. –administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations:

a) 1st violation – Warning;

b) 2nd violation – Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (the gravity and extent of the violation, including the recall of the offending product;

c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR);

d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate (LTO) for one year;

e) 5th and succeeding repeated violations – Administrative Fine of One Million (P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI);

f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other

such appropriate body, notifying and penalizing the company for the infraction.

For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related thereto, of the following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose."This section conspicuously lacks reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

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2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials should include information on the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it..48 However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of infantsand the methods of preventing and combating dangerous communicable diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the right to health of the people and instill health consciousness among them."52 To that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health information and educate the populationon important health, medical and environmental matters which have health implications."53

When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on breastfeeding and use of breastmilk substitutes, supplements and related products; and the power to control such information. These are expressly provided for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring –

x x x x

(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the accomplishment of its purposes and objectives.

x x x x

(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education –

(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis-à-visbreastmilk substitutes, supplement and related products, in the following manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.

SECTION 8. Health Workers –

x x x x

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).

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SECTION 10. Containers/Label –


x x x x

(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that would reach pregnant women, mothers of infants, and health professionals and workers in the health care system is restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over information given to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision of safe and adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate marketing and distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes, including infant formula, and to information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or text which may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary or improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health professionals but such information should be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -

x x x x

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters, and such informationshall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-visbreastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and

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deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

x x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present in infant formula and other related products when these are prepared and used inappropriately.

Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology that allows production of powdered infant formula that eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers. –

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby created:

Minister of Health -------------------

Minister of Trade and Industry -------------------

Minister of Justice -------------------

Minister of Social Services and Development -------------------

The members may designate their duly authorized representative to every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual, on products within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles –

x x x x

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(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

x x x x

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.

We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter agency committee that is empowered to process and evaluate all the advertising and promotion materials.

x x x x

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the promotions of breastfeeding milk substitutes.

x x x x

Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that processes and evaluates because there may be some information dissemination that are straight forward information dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your Honor.

x x x x

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?


Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

x x x x

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the rules and regulations?


Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is under the Department of Health, Your Honor.

x x x x

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the Revised Rules?


Yes, your Honor.


But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children two (2) years old and younger?


It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine breastfeeding, Your Honor.

x x x x

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x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.


So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2) years below?


We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not undermine breastmilk and breastfeeding, Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:


x x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain information about the use of infant formula, they shall include the social and financial implications of its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.

x x x x

SECTION 8. Health Workers. –

x x x x

(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).

x x x x

SECTION 10. Containers/Label –


(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English printed on it, or on a label, which message can not readily become separated from it, and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:


(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product would produce better individuals, or resulting in greater love,

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intelligence, ability, harmony or in any manner bring better health to the baby or other such exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC may screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.

4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b) 66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health professionals but suchinformation is restricted to scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination of information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to extend assistance in research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i) 69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies’ participation in any policymaking body in relation to the advancement of breastfeeding is in accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not pertain to research assistance to or the continuing education of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR

prohibits milk companies from giving assistance for research or continuing education to health professionals; hence, petitioner's argument against this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide thatresearch assistance for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements imposed on the milk company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or extent of assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance, support, logistics or training to health workers. This provision is within the prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of the RIRR which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc .,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.

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In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:

SECTION 13. Sanctions –

(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.

Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised rules and implementing regulations are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers.78 Such express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by which they are to implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a provision therein is inadequate to provide the public with a comprehensible basis to determine whether or not they have committed a violation.81 (Emphasis supplied)

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free enterprise does not call for removal of ‘protective regulations’." x x x It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in any policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the definition of the term "milk company," to wit:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their representatives who promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary distributor" is a manufacturer's sales agent, representative, national distributor or broker.

x x x x

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(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business or function (whether directly or indirectly or through an agent or and entity controlled by or under contract with it) of manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the scope of this Code." Those are the only differences between the definitions given in the Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer" provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

Freedom of Expression, Academic Freedom & Freedom of Speech

A.M. No. 10-10-4-SC March 8, 2011

RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"

D E C I S I O N

LEONARDO-DE CASTRO, J.:

For disposition of the Court are the various submissions of the 37 respondent law professors1 in response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to show cause

why they should not be disciplined as members of the Bar for violation of specific provisions of the Code of Professional Responsibility enumerated therein.

At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19, 2010 Show Cause Resolution and the present decision.

With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that with the exception of one respondent whose compliance was adequate and another who manifested he was not a member of the Philippine Bar, the submitted explanations, being mere denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses even more urgently behoove this Court to call the attention of respondent law professors, who are members of the Bar, to the relationship of their duties as such under the Code of Professional Responsibility to their civil rights as citizens and academics in our free and democratic republic.

The provisions of the Code of Professional Responsibility involved in this case are as follows:

CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.

RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

CANON 10 - A lawyer owes candor, fairness and good faith to the court.

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor shall he mislead, or allow the Court to be misled by any artifice.

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the ends of justice.

CANON 11 — A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.

CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the court.

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Established jurisprudence will undeniably support our view that when lawyers speak their minds, they must ever be mindful of their sworn oath to observe ethical standards of their profession, and in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that matter, for a decision it has rendered, especially during the pendency of a motion for such decision’s reconsideration. The accusation of plagiarism against a member of this Court is not the real issue here but rather this plagiarism issue has been used to deflect everyone’s attention from the actual concern of this Court to determine by respondents’ explanations whether or not respondent members of the Bar have crossed the line of decency and acceptable professional conduct and speech and violated the Rules of Court through improper intervention or interference as third parties to a pending case. Preliminarily, it should be stressed that it was respondents themselves who called upon the Supreme Court to act on their Statement,2 which they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Court’s proper disposition. Considering the defenses of freedom of speech and academic freedom invoked by the respondents, it is worth discussing here that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to respondents’ invocation of academic freedom. Indeed, it is precisely because respondents are not merely lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that respondents’ own non-observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of intentions, cannot be ignored nor glossed over by this Court.

To fully appreciate the grave repercussions of respondents’ actuations, it is apropos to revisit the factual antecedents of this case.

BACKGROUND OF THE CASE

Antecedent Facts and Proceedings

On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely the following grounds:

I. Our own constitutional and jurisprudential histories reject this Honorable Courts’ (sic) assertion that the Executive’s foreign policy prerogatives are virtually unlimited; precisely, under the relevant jurisprudence and constitutional provisions, such prerogatives are proscribed by international human rights and humanitarian standards, including those provided for in the relevant international conventions of which the Philippines is a party.4

II. This Honorable Court has confused diplomatic protection with the broader, if fundamental, responsibility of states to protect the human rights of its citizens – especially where the rights asserted are subject of erga omnes obligations and pertain to jus cogens norms.5

On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230, where they posited for the first time their charge of plagiarism as one of the grounds for reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted that:

I.

IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW

JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE PETITION’S CLAIMS.7

They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to suit the arguments of the assailed Judgment for denying the Petition."8

According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent’s article "A Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams’ book Enforcing Erga Omnes Obligations in International Law;10 and (3) Mark Ellis’ article "Breaking the Silence: On Rape as an International Crime."11

On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized parts of ruling on comfort women," on the Newsbreak website.12 The same article appeared on the GMA News TV website also on July 19, 2010.13

On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted," appeared in the Manila Standard Today.14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddle’s response to the post by Julian Ku regarding the news report15 on the alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle responded to Ku’s blog entry in this wise:

The newspaper’s16 [plagiarism] claims are based on a motion for reconsideration filed yesterday with the Philippine Supreme Court yesterday. The motion is available here:

http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

The motion suggests that the Court’s decision contains thirty-four sentences and citations that are identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the petitioners’ [plagiarism] allegations until after the motion was filed today.

Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms. Our article emphatically asserts the opposite. The Supreme Court’s decision is available here:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17

On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the charge of plagiarism contained in the Supplemental Motion for Reconsideration.18

In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:

Your Honours:

16

I write concerning a most delicate issue that has come to my attention in the last few days.

Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of the integrity of my work as an academic and as an advocate of human rights and humanitarian law, to take exception to the possible unauthorized use of my law review article on rape as an international crime in your esteemed Court’s Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).

My attention was called to the Judgment and the issue of possible plagiarism by the Philippine chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative (MLDI), where I sit as trustee.

In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have misread the arguments I made in the article and employed them for cross purposes. This would be ironic since the article was written precisely to argue for the appropriate legal remedy for victims of war crimes, genocide, and crimes against humanity.

I believe a full copy of my article as published in the Case Western Reserve Journal of International Law in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will take the time to carefully study the arguments I made in the article.

I would appreciate receiving a response from your esteemed Court as to the issues raised by this letter.

With respect,

(Sgd.)Dr. Mark Ellis20

In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently docketed as A.M. No. 10-7-17-SC.

On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of Justice Del Castillo.21

On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreak’s website22 and on Atty. Roque’s blog.23 A report regarding the statement also appeared on various on-line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the same date. The statement was likewise posted at the University of the Philippines College of Law’s bulletin board allegedly on August 10, 201026 and at said college’s website.27

On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:

The Honorable Supreme Court of the Republic of the Philippines

Through: Hon. Renato C. CoronaChief Justice

Subject: Statement of facultyfrom the UP College of Lawon the Plagiarism in the case ofVinuya v Executive Secretary

Your Honors:

We attach for your information and proper disposition a statement signed by thirty[-]eight (38)28members of the faculty of the UP College of Law. We hope that its points could be considered by the Supreme Court en banc.

Respectfully,

(Sgd.)Marvic M.V.F. LeonenDean and Professor of Law

(Emphases supplied.)

The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of the alleged signatories but only stated the names of 37 UP Law professors with the notation (SGD.) appearing beside each name. For convenient reference, the text of the UP Law faculty Statement is reproduced here:

RESTORING INTEGRITY

A STATEMENT BY THE FACULTY OFTHE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW

ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATIONIN THE SUPREME COURT

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war. After they courageously came out with their very personal stories of abuse and suffering as "comfort women", waited for almost two decades for any meaningful relief from their own government as well as from the government of Japan, got their hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land.

It is within this frame that the Faculty of the University of the Philippines College of Law views the charge that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual scholars whose work have been appropriated without correct attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial System.

17

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work as one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of someone else’s ideas and expressions, including all the effort and creativity that went into committing such ideas and expressions into writing, and then making it appear that such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently, this is a complete perversion and falsification of the ends of justice.

A comparison of the Vinuya decision and the original source material shows that the ponente merely copied select portions of other legal writers’ works and interspersed them into the decision as if they were his own, original work. Under the circumstances, however, because the Decision has been promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus the Court also bears the responsibility for the Decision. In the absence of any mention of the original writers’ names and the publications from which they came, the thing speaks for itself.

So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the Court.

It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to the ‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original authors’ writings and the effort they put into finding and summarizing those primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary sources.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more demands correct and careful attribution and citation of the material relied upon. It is a matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.

But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this article they argue that the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty of copying works without attribution by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.

The case is a potential landmark decision in International Law, because it deals with State liability and responsibility for personal injury and damage suffered in a time of war, and the role of the injured parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely have such opportunities to make an international impact. That the petitioners were Filipino "comfort women" who suffered from horrific abuse during the Second World War made it incumbent on the Court of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added insult to injury by failing to actually exercise its "power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and

nonchalance, belies a more alarming lack of concern for even the most basic values of decency and respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal profession before other Judiciaries and legal systems are truly at stake.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench and Bar because these undermine the very foundation of its authority and power in a democratic society. Given the Court’s recent history and the controversy that surrounded it, it cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this would only further erode faith and confidence in the judicial system. And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

The Court cannot regain its credibility and maintain its moral authority without ensuring that its own conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes ensuring that not only the content, but also the processes of preparing and writing its own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a higher standard of professional care and practical scholarship in the Bench and Bar, which are critical to improving the system of administration of justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all controversies: a position that requires competence and integrity completely above any and all reproach, in accordance with the exacting demands of judicial and professional ethics.

With these considerations, and bearing in mind the solemn duties and trust reposed upon them as teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine College of Law that:

(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable, unethical and in breach of the high standards of moral conduct and judicial and professional competence expected of the Supreme Court;

(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court and undermines the foundations of the Philippine judicial system by allowing implicitly the decision of cases and the establishment of legal precedents through dubious means;

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein;

(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that the Court may consider appropriate;

18

(5) The Supreme Court must take this opportunity to review the manner by which it conducts research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in pleadings, practice, and adjudication.

Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

(SGD.) MARVIC M.V.F. LEONENDean and Professor of Law

(SGD.) FROILAN M. BACUNGANDean (1978-1983)

(SGD.) PACIFICO A. AGABINDean (1989-1995)

(SGD.) MERLIN M. MAGALLONADean (1995-1999)

(SGD.) SALVADOR T. CARLOTADean (2005-2008) and Professor of Law

REGULAR FACULTY

(SGD.) CARMELO V. SISONProfessor

(SGD.) JAY L. BATONGBACALAssistant Professor

(SGD.) PATRICIA R.P. SALVADOR DAWAYAssociate Dean and Associate Professor

(SGD.) EVELYN (LEO) D. BATTADAssistant Professor

(SGD.) DANTE B. GATMAYTANAssociate Professor

(SGD.) GWEN G. DE VERAAssistant Professor

(SGD.) THEODORE O. TEAssistant Professor

(SGD.) SOLOMON F. LUMBAAssistant Professor

(SGD.) FLORIN T. HILBAYAssistant Professor

(SGD.) ROMMEL J. CASISAssistant Professor

LECTURERS

(SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA(SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO

(SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH(SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS

(SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA(SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S. QUIMBO

(SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC(SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY

(SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA

(SGD.) ANTONIO G.M. LA VIÑA (SGD.) RAUL T. VASQUEZ

(SGD.) CARINA C. LAFORTEZA (SGD.) SUSAN D. VILLANUEVA29

(Underscoring supplied.)

Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on the alleged plagiarism issue to the Court.30 We quote Prof. Tams’ letter here:

Glasgow, 18 August 2010

Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)

Hon. Renato C. Corona, Chief Justice

Your Excellency,

My name is Christian J. Tams, and I am a professor of international law at the University of Glasgow. I am writing to you in relation to the use of one of my publications in the above-mentioned judgment of your Honourable Court.

The relevant passage of the judgment is to be found on p. 30 of your Court’s Judgment, in the section addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant sentences were taken almost word by word from the introductory chapter of my book Enforcing Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the Judgment, I do not think it can be considered an appropriate form of referencing.

I am particularly concerned that my work should have been used to support the Judgment’s cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm place in contemporary international law. Hence the introductory chapter notes that "[t]he present study attempts to demystify aspects of the ‘very mysterious’ concept and thereby to facilitate its implementation" (p. 5). In the same vein, the concluding section notes that "the preceding chapters show that the concept is now a part of the reality of international law, established in the jurisprudence of courts and the practice of States" (p. 309).

With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to support – as it seemingly has – the opposite approach. More generally, I am concerned at the way in which your Honourable Court’s Judgment has drawn on scholarly work without properly acknowledging it.

On both aspects, I would appreciate a prompt response from your Honourable Court.

I remain

Sincerely yours

(Sgd.)Christian J. Tams31

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In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits during the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring Integrity Statement) was not signed but merely reflected the names of certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to present the signed copy of the said Statement within three days from the August 26 hearing.32

It was upon compliance with this directive that the Ethics Committee was given a copy of the signed UP Law Faculty Statement that showed on the signature pages the names of the full roster of the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was that only 37 of the 81 faculty members appeared to have signed the same. However, the 37 actual signatories to the Statement did not include former Supreme Court Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of the Statement submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although his name was not included among the signatories in the previous copies submitted to the Court. Thus, the total number of ostensible signatories to the Statement remained at 37.

The Ethics Committee referred this matter to the Court en banc since the same Statement, having been formally submitted by Dean Leonen on August 11, 2010, was already under consideration by the Court.33

In a Resolution dated October 19, 2010, the Court en banc made the following observations regarding the UP Law Faculty Statement:

Notably, while the statement was meant to reflect the educators’ opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized.

Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as areprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.

The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of "polluted sources," the Court’s alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.34 x x x. (Underscoring ours.)

In the same Resolution, the Court went on to state that:

While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice."

The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.35 x x x. (Citations omitted; emphases and underscoring supplied.)

Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario to show cause, within ten (10) days from receipt of the copy of the Resolution, why they should not be disciplined as members of the Bar for violation of Canons 1,36 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.37

Dean Leonen was likewise directed to show cause within the same period why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting through his letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy which is not a true and faithful reproduction of the UP Law Faculty Statement.38

In the same Resolution, the present controversy was docketed as a regular administrative matter.

Summaries of the Pleadings Filed by Respondents in Response to the October 19, 2010 Show Cause Resolution

On November 19, 2010, within the extension for filing granted by the Court, respondents filed the following pleadings:

(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;

(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-Bautista in relation to the same charge in par. (1);

(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to the same charge in par. (1);

(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and

(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.

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Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul Vasquez)

Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common compliance which was signed by their respective counsels (the Common Compliance). In the "Preface" of said Common Compliance, respondents stressed that "[they] issued the Restoring Integrity Statement in the discharge of the ‘solemn duties and trust reposed upon them as teachers in the profession of law,’ and as members of the Bar to speak out on a matter of public concern and one that is of vital interest to them."39 They likewise alleged that "they acted with the purest of intentions" and pointed out that "none of them was involved either as party or counsel"40 in the Vinuya case. Further, respondents "note with concern" that the Show Cause Resolution’s findings and conclusions were "a prejudgment – that respondents indeed are in contempt, have breached their obligations as law professors and officers of the Court, and have violated ‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."41

By way of explanation, the respondents emphasized the following points:

(a) Respondents’ alleged noble intentions

In response to the charges of failure to observe due respect to legal processes42 and the courts43 and of tending to influence, or giving the appearance of influencing the Court44 in the issuance of their Statement, respondents assert that their intention was not to malign the Court but rather to defend its integrity and credibility and to ensure continued confidence in the legal system. Their noble motive was purportedly evidenced by the portion of their Statement "focusing on constructive action."45 Respondents’ call in the Statement for the Court "to provide clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal research and writing in adjudication," was reputedly "in keeping with strictures enjoining lawyers to ‘participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice’" (under Canon 4 of the Code of Professional Responsibility) and to "promote respect for the law and legal processes" (under Canon 1, id.).46 Furthermore, as academics, they allegedly have a "special interest and duty to vigilantly guard against plagiarism and misrepresentation because these unwelcome occurrences have a profound impact in the academe, especially in our law schools."47

Respondents further "[called] on this Court not to misconstrue the Restoring Integrity Statement as an ‘institutional attack’ x x x on the basis of its first and ninth paragraphs."48 They further clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them the Court "was not going to take any action on the grave and startling allegations of plagiarism and misrepresentation."49 According to respondents, the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said that Chief Justice Corona would not order an inquiry into the matter;50 and (ii) the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing but to downplay the gravity of the plagiarism and misrepresentation charges."51 Respondents claimed that it was their perception of the Court’s indifference to the dangers posed by the plagiarism allegations against Justice Del Castillo that impelled them to urgently take a public stand on the issue.

(b) The "correctness" of respondents’ position that Justice Del Castillo committed plagiarism and should be held accountable in accordance with the standards of academic writing

A significant portion of the Common Compliance is devoted to a discussion of the merits of respondents’ charge of plagiarism against Justice Del Castillo. Relying on University of the

Philippines Board of Regents v. Court of Appeals52 and foreign materials and jurisprudence, respondents essentially argue that their position regarding the plagiarism charge against Justice Del Castillo is the correct view and that they are therefore justified in issuing their Restoring Integrity Statement. Attachments to the Common Compliance included, among others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,53 sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted without proper attribution the text from a legal article by Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho Internacional and from an International Court of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled "Sexual Orientation, Gender Identity and International Human Rights Law" by Michael O’Flaherty and John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on Elections.54

(c) Respondents’ belief that they are being "singled out" by the Court when others have likewise spoken on the "plagiarism issue"

In the Common Compliance, respondents likewise asserted that "the plagiarism and misrepresentation allegations are legitimate public issues."55 They identified various published reports and opinions, in agreement with and in opposition to the stance of respondents, on the issue of plagiarism, specifically:

(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56

(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24, 2010;57

(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58

(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on July 30, 2010;59

(v) Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr. published in the Business Mirror on August 5, 2010;60

(vi) Column of Former Chief Justice Artemio Panganiban published in the Philippine Daily Inquirer on August 8, 2010;61

(vii) News report regarding Senator Francis Pangilinan’s call for the resignation of Justice Del Castillo published in the Daily Tribune and the Manila Standard Today on July 31, 2010;62

(viii) News reports regarding the statement of Dean Cesar Villanueva of the Ateneo de Manila University School of Law on the calls for the resignation of Justice Del Castillo published in The Manila Bulletin, the Philippine Star and the Business Mirror on August 11, 2010;63

(ix) News report on expressions of support for Justice Del Castillo from a former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional Association, the Judges Association of Bulacan and the Integrated Bar of the

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Philippines – Bulacan Chapter published in the Philippine Star on August 16, 2010;64 and

(x) Letter of the Dean of the Liceo de Cagayan University College of Law published in the Philippine Daily Inquirer on August 10, 2010.65

In view of the foregoing, respondents alleged that this Court has singled them out for sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may have violated specific canons of the Code of Professional Responsibility is unfair and without basis.

(d) Freedom of expression

In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their position that in issuing their Statement, "they should be seen as not only to be performing their duties as members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy who are constitutionally protected in the exercise of free speech."66 In support of this contention, they cited United States v. Bustos,67 In re: Atty. Vicente Raul Almacen, 68 and In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.69

(e) Academic freedom

In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was also issued in the exercise of their academic freedom as teachers in an institution of higher learning. They relied on Section 5 of the University of the Philippines Charter of 2008 which provided that "[t]he national university has the right and responsibility to exercise academic freedom." They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology70 which they claimed recognized the extent and breadth of such freedom as to encourage a free and healthy discussion and communication of a faculty member’s field of study without fear of reprisal. It is respondents’ view that had they remained silent on the plagiarism issue in the Vinuya decision they would have "compromised [their] integrity and credibility as teachers; [their silence] would have created a culture and generation of students, professionals, even lawyers, who would lack the competence and discipline for research and pleading; or, worse, [that] their silence would have communicated to the public that plagiarism and misrepresentation are inconsequential matters and that intellectual integrity has no bearing or relevance to one’s conduct."71

In closing, respondents’ Common Compliance exhorted this Court to consider the following portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez,72 to wit:

Respect for the courts can better be obtained by following a calm and impartial course from the bench than by an attempt to compel respect for the judiciary by chastising a lawyer for a too vigorous or injudicious exposition of his side of a case. The Philippines needs lawyers of independent thought and courageous bearing, jealous of the interests of their clients and unafraid of any court, high or low, and the courts will do well tolerantly to overlook occasional intemperate language soon to be regretted by the lawyer which affects in no way the outcome of a case.73

On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance stated, thus:

WHEREFORE:

A. Respondents, as citizens of a democracy, professors of law, members of the Bar and officers of the Court, respectfully pray that:

1. the foregoing be noted; and

2. the Court reconsider and reverse its adverse findings in the Show Cause Resolution, including its conclusions that respondents have: [a] breached their "obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, … and not to promote distrust in the administration of justice;" and [b] committed "violations of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."

B. In the event the Honorable Court declines to grant the foregoing prayer, respondents respectfully pray, in the alternative, and in assertion of their due process rights, that before final judgment be rendered:

1. the Show Cause Resolution be set for hearing;

2. respondents be given a fair and full opportunity to refute and/or address the findings and conclusions of fact in the Show Cause Resolution (including especially the finding and conclusion of a lack of malicious intent), and in that connection, that appropriate procedures and schedules for hearing be adopted and defined that will allow them the full and fair opportunity to require the production of and to present testimonial, documentary, and object evidence bearing on the plagiarism and misrepresentation issues in Vinuya v. Executive Secretary (G.R. No. 162230, April 28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and

3. respondents be given fair and full access to the transcripts, records, drafts, reports and submissions in or relating to, and accorded the opportunity to cross-examine the witnesses who were or could have been called in In The Matter of the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC).74

Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista

Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she adopted the allegations in the Common Compliance with some additional averments.

Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."75

Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the best intentions to protect the Supreme Court by asking one member to resign."76 For her part, Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were what motivated her to sign the Statement.

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On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77 which in her view highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning such that schools have the freedom to determine for themselves who may teach, what may be taught, how lessons shall be taught and who may be admitted to study and that courts have no authority to interfere in the schools’ exercise of discretion in these matters in the absence of grave abuse of discretion. She claims the Court has encroached on the academic freedom of the University of the Philippines and other universities on their right to determine how lessons shall be taught.

Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents’ constitutional right to freedom of expression that can only be curtailed when there is grave and imminent danger to public safety, public morale, public health or other legitimate public interest.78

Compliance of Prof. Raul T. Vasquez

On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was a topic of conversation among the UP Law faculty early in the first semester (of academic year 2010-11) because it reportedly contained citations not properly attributed to the sources; that he was shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class; and that, agreeing in principle with the main theme advanced by the Statement, he signed the same in utmost good faith.79

In response to the directive from this Court to explain why he should not be disciplined as a member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has the right, like all citizens in a democratic society, to comment on acts of public officers. He invited the attention of the Court to the following authorities: (a) In re: Vicente Sotto;80 (b) In re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to unduly influence, nor entertained any illusion that he could or should influence, [the Court] in its disposition of the Vinuya case"83 and that "attacking the integrity of [the Court] was the farthest thing on respondent’s mind when he signed the Statement."84 Unlike his colleagues, who wish to impress upon this Court the purported homogeneity of the views on what constitutes plagiarism, Prof. Vasquez stated in his Compliance that:

13. Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the view that willful and deliberate intent to commit plagiarism is an essential element of the same. Others, like respondent, were of the opinion that plagiarism is committed regardless of the intent of the perpetrator, the way it has always been viewed in the academe. This uncertainty made the issue a fair topic for academic discussion in the College. Now, this Honorable Court has ruled that plagiarism presupposes deliberate intent to steal another’s work and to pass it off as one’s own.85 (Emphases supplied.)

Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been remiss in correctly assessing the effects of such language [in the Statement] and could have been more careful."86 He ends his discussion with a respectful submission that with his explanation, he has faithfully complied with the Show Cause Resolution and that the Court will rule that he had not in any manner violated his oath as a lawyer and officer of the Court.

Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty Statement to this Court

In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law Faculty Statement, which he described as follows:

"Restoring Integrity I" which bears the entire roster of the faculty of the UP College of Law in its signing pages, and the actual signatures of the thirty-seven (37) faculty members subject of the Show Cause Resolution. A copy was filed with the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.

"Restoring Integrity II" which does not bear any actual physical signature, but which reflects as signatories the names of thirty-seven (37) members of the faculty with the notation "(SGD.)". A copy of Restoring Integrity II was publicly and physically posted in the UP College of Law on 10 August 2010. Another copy of Restoring Integrity II was also officially received by the Honorable Court from the Dean of the UP College of Law on 11 August 2010, almost three weeks before the filing of Restoring Integrity I.

"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which presently serves as the official file copy of the Dean’s Office in the UP College of Law that may be signed by other faculty members who still wish to. It bears the actual signatures of the thirty- seven original signatories to Restoring Integrity I above their printed names and the notation "(SGD.") and, in addition, the actual signatures of eight (8) other members of the faculty above their handwritten or typewritten names.87

For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since what Dean Leonen has been directed to explain are the discrepancies in the signature pages of these two documents. Restoring Integrity III was never submitted to this Court.

On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen alleged, thus:

2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty on a draft statement, Dean Leonen instructed his staff to print the draft and circulate it among the faculty members so that those who wished to may sign. For this purpose, the staff encoded the law faculty roster to serve as the printed draft’s signing pages. Thus did the first printed draft of the Restoring Integrity Statement, Restoring Integrity I, come into being.

2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was unaware that a Motion for Reconsideration of the Honorable Court’s Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the Honorable Court was in the process of convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-17-SC.

2.4. Dean Leonen’s staff then circulated Restoring Integrity I among the members of the faculty. Some faculty members visited the Dean’s Office to sign the document or had it brought to their classrooms in the College of Law, or to their offices or residences. Still other faculty members who, for one reason or another, were unable to sign Restoring Integrity I at that time, nevertheless conveyed to Dean Leonen their assurances that they would sign as soon as they could manage.

2.5. Sometime in the second week of August, judging that Restoring Integrity I had been circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a style and manner appropriate for posting in the College of Law. Following his own established practice in relation to significant public issuances, he directed them to reformat the signing pages so that only the names of those who signed the first printed draft would appear,

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together with the corresponding "(SGD.)" note following each name. Restoring Integrity II thus came into being.88

According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of non-signatories in the final draft of significant public issuances, is meant not so much for aesthetic considerations as to secure the integrity of such documents."89 He likewise claimed that "[p]osting statements with blanks would be an open invitation to vandals and pranksters."90

With respect to the inclusion of Justice Mendoza’s name as among the signatories in Restoring Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a miscommunication involving his administrative officer. In his Compliance, he narrated that:

2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted signing pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the "(SGD.)" signatories. As Justice Mendoza was not among those who had physically signed Restoring Integrity I when it was previously circulated, Dean Leonen called the attention of his staff to the inclusion of the Justice’s name among the "(SGD.)" signatories in Restoring Integrity II.

2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had authorized the dean to sign the Restoring Integrity Statement for him as he agreed fundamentally with its contents. Also according to her, Justice Mendoza was unable at that time to sign the Restoring Integrity Statement himself as he was leaving for the United States the following week. It would later turn out that this account was not entirely accurate.91 (Underscoring and italics supplied.)

Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so placed full reliance on her account"92 as "[t]here were indeed other faculty members who had also authorized the Dean to indicate that they were signatories, even though they were at that time unable to affix their signatures physically to the document."93

However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the circumstances surrounding their effort to secure Justice Mendoza’s signature. It would turn out that this was what actually transpired:

2.22.1. On Friday, 06 August 2010, when the dean’s staff talked to Justice Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement as he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say that he authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if he could authorize the dean to sign it for him as he was about to leave for the United States. The dean’s staff informed him that they would, at any rate, still try to bring the Restoring Integrity Statement to him.

2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the Restoring Integrity Statement before he left for the U.S. the following week.

2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to the College to teach on 24 September 2010, a day after his arrival from the U.S. This time, Justice Mendoza declined to sign.94

According to the Dean:

2.23. It was only at this time that Dean Leonen realized the true import of the call he received from Justice Mendoza in late September. Indeed, Justice Mendoza confirmed that by the time the hard copy of the Restoring Integrity Statement was brought to him shortly after his arrival from the U.S., he declined to sign it because it had already become controversial. At that time, he predicted that the Court would take some form of action against the faculty. By then, and under those circumstances, he wanted to show due deference to the Honorable Court, being a former Associate Justice and not wishing to unduly aggravate the situation by signing the Statement.95(Emphases supplied.)

With respect to the omission of Atty. Armovit’s name in the signature page of Restoring Integrity II when he was one of the signatories of Restoring Integrity I and the erroneous description in Dean Leonen’s August 10, 2010 letter that the version of the Statement submitted to the Court was signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:

Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated to him. However, his name was inadvertently left out by Dean Leonen’s staff in the reformatting of the signing pages in Restoring Integrity II. The dean assumed that his name was still included in the reformatted signing pages, and so mentioned in his cover note to Chief Justice Corona that 38 members of the law faculty signed (the original 37 plus Justice Mendoza.)96

Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement that was not a true and faithful reproduction of the same. He emphasized that the main body of the Statement was unchanged in all its three versions and only the signature pages were not the same. This purportedly is merely "reflective of [the Statement’s] essential nature as a ‘live’ public manifesto meant to continuously draw adherents to its message, its signatory portion is necessarily evolving and dynamic x x x many other printings of [the Statement] may be made in the future, each one reflecting the same text but with more and more signatories."97 Adverting to criminal law by analogy, Dean Leonen claims that "this is not an instance where it has been made to appear in a document that a person has participated in an act when the latter did not in fact so participate"98 for he "did not misrepresent which members of the faculty of the UP College of Law had agreed with the Restoring Integrity Statement proper and/or had expressed their desire to be signatories thereto."99

In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement or the identities of the UP Law faculty members who agreed with, or expressed their desire to be signatories to, the Statement. He also asserts that he did not commit any violation of Rule 10.03 as he "coursed [the Statement] through the appropriate channels by transmitting the same to Honorable Chief Justice Corona for the latter’s information and proper disposition with the hope that its points would be duly considered by the Honorable Court en banc."100 Citing Rudecon Management Corporation v. Camacho,101 Dean Leonen posits that the required quantum of proof has not been met in this case and that no dubious character or motivation for the act complained of existed to warrant an administrative sanction for violation of the standard of honesty provided for by the Code of Professional Responsibility.102

Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common Compliance, including the prayers for a hearing and for access to the records, evidence and witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving Justice Del Castillo.

Manifestation of Prof. Owen Lynch (Lynch Manifestation)

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For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court and the Supreme Court of the United States, that ‘…[d]ebate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."103 In signing the Statement, he believes that "the right to speak means the right to speak effectively."104 Citing the dissenting opinions in Manila Public School Teachers Association v. Laguio, Jr.,105 Prof. Lynch argued that "[f]or speech to be effective, it must be forceful enough to make the intended recipients listen"106 and "[t]he quality of education would deteriorate in an atmosphere of repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their pupils can speak only in timorous whispers."107 Relying on the doctrine in In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,108 Prof. Lynch believed that the Statement did not pose any danger, clear or present, of any substantive evil so as to remove it from the protective mantle of the Bill of Rights (i.e., referring to the constitutional guarantee on free speech).109 He also stated that he "has read the Compliance of the other respondents to the Show Cause Resolution" and that "he signed the Restoring Integrity Statement for the same reasons they did."110

ISSUES

Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material issues to be resolved in this case are as follows:

1.) Does the Show Cause Resolution deny respondents their freedom of expression?

2.) Does the Show Cause Resolution violate respondents’ academic freedom as law professors?

3.) Do the submissions of respondents satisfactorily explain why they should not be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility?

4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?

5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation to such hearing, are respondents entitled to require the production or presentation of evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records and transcripts of, and the witnesses and evidence presented, or could have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?

DISCUSSION

The Show Cause Resolution does not deny respondents their freedom of expression.

It is respondents’ collective claim that the Court, with the issuance of the Show Cause Resolution, has interfered with respondents’ constitutionally mandated right to free speech and expression. It appears that the underlying assumption behind respondents’ assertion is the misconception that this Court is denying them the right to criticize the Court’s decisions and actions, and that this Court seeks to

"silence" respondent law professors’ dissenting view on what they characterize as a "legitimate public issue."

This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of plagiarism that motivated the said Resolution. It was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending case for the "proper disposition" and consideration of the Court that gave rise to said Resolution. The Show Cause Resolution painstakingly enumerated the statements that the Court considered excessive and uncalled for under the circumstances surrounding the issuance, publication, and later submission to this Court of the UP Law faculty’s Restoring Integrity Statement.

To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo was guilty of plagiarism but rather their expression of that belief as "not only as an established fact, but a truth"111 when it was "[o]f public knowledge [that there was] an ongoing investigation precisely to determine the truth of such allegations."112 It was also pointed out in the Show Cause Resolution that there was a pending motion for reconsideration of the Vinuya decision.113 The Show Cause Resolution made no objections to the portions of the Restoring Integrity Statement that respondents claimed to be "constructive" but only asked respondents to explain those portions of the said Statement that by no stretch of the imagination could be considered as fair or constructive, to wit:

Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:

An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as areprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.

The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of "polluted sources," the Court’s alleged indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect.114 x x x. (Underscoring ours.)

To be sure, the Show Cause Resolution itself recognized respondents’ freedom of expression when it stated that:

While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice."

The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite

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resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.115 x x x. (Citations omitted; emphases and underscoring supplied.)

Indeed, in a long line of cases, including those cited in respondents’ submissions, this Court has held that the right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary be protected from due influence or interference. In cases where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose statements regarding the courts and fellow lawyers, whether judicial or extrajudicial, have exceeded the limits of fair comment and common decency.

As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty. Vicente J. Francisco both guilty of contempt and liable administratively for the following paragraph in his second motion for reconsideration:

We should like frankly and respectfully to make it of record that the resolution of this court, denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be corrected by the very court which has committed it, because we should not want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this honorable court and of each and every member thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneous decisions like these, which the affected party and his thousands of voters will necessarily consider unjust, increase the proselytes of 'sakdalism' and make the public lose confidence in the administration of justice.117 (Emphases supplied.)

The highlighted phrases were considered by the Court as neither justified nor necessary and further held that:

[I]n order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done, because both means are annoying and good practice can never sanction them by reason of their natural tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in judicial matters, in the consideration of questions submitted for resolution.

There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or less veiled threat to the court because it is insinuated therein, after the author shows the course which the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim; and because he states in a threatening manner with the intention of predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the public eye, that decisions of the nature of that referred to in his motion promote distrust in the administration of justice and increase the proselytes of sakdalism, a movement with seditious and revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so

devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.118 (Emphases supplied.)

Significantly, Salcedo is the decision from which respondents culled their quote from the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading filed by a counsel in a case, unlike the respondents here, who are neither parties nor counsels in the Vinuya case and therefore, do not have any standing at all to interfere in the Vinuya case. Instead of supporting respondents’ theory, Salcedo is authority for the following principle:

As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it has conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice(In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief.119 (Emphases supplied.)

Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his pleading, by accusing the Court of "erroneous ruling." Here, the respondents’ Statement goes way beyond merely ascribing error to the Court.

Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty. Vicente Raul Almacen,120 cited in the Common Compliance and the Vasquez Compliance, was an instance where the Courtindefinitely suspended a member of the Bar for filing and releasing to the press a "Petition to Surrender Lawyer’s Certificate of Title" in protest of what he claimed was a great injustice to his client committed by the Supreme Court. In the decision, the petition was described, thus:

He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for justice, who ignore without reasons their own applicable decisions and commit culpable violations of the Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that justice as administered by the present members of the Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people may know of the silent injustices committed by this Court," and that "whatever mistakes, wrongs and injustices that were committed must never be repeated." He ends his petition with a prayer that

"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in the event we regain our faith and confidence, we may retrieve our title to assume the practice of the noblest profession."121

It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers, including judicial authority. However, the real doctrine in Almacen is that such criticism of the courts, whether done in court or outside of it, must conform to standards of fairness and propriety. This case engaged in an even more extensive discussion of the legal authorities sustaining this view.1awphi1 To quote from that decision:

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But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action.

For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to conduct himself "with all good fidelity x x x to the courts;" and the Rules of Court constantly remind him "to observe and maintain the respect due to courts of justice and judicial officers." The first canon of legal ethics enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance."

As Mr. Justice Field puts it:

"x x x the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from all insulting language and offensive conduct toward judges personally for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)

The lawyer's duty to render respectful subordination to the courts is essential to the orderly administration of justice. Hence, in the assertion of their clients' rights, lawyers — even those gifted with superior intellect — are enjoined to rein up their tempers.

"The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-respect are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and the bar should at all times be the foremost in rendering respectful submission." (In Re Scouten, 40 Atl. 481)

x x x x

In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another. Thus, statements made by an attorney in private conversations or communications or in the course of a political campaign, if couched in insulting language as to bring into scorn and disrepute the administration of justice, may subject the attorney to disciplinary action.122 (Emphases and underscoring supplied.)

In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance, observed that:

[T]his Court, in In re Kelly, held the following:

The publication of a criticism of a party or of the court to a pending cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice, and subjects such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a

profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. x x x.

Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a pending case made in good faith may be tolerated; because if well founded it may enlighten the court and contribute to the correction of an error if committed; but if it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision. x x x.

x x x x

To hurl the false charge that this Court has been for the last years committing deliberately "so many blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that the law and justice is on the part of the adverse party and not on the one in whose favor the decision was rendered, in many cases decided during the last years, would tend necessarily to undermine the confidence of the people in the honesty and integrity of the members of this Court, and consequently to lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their grievances or protection of their rights when these are trampled upon, and if the people lose their confidence in the honesty and integrity of the members of this Court and believe that they cannot expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity according to the oath he has taken as such attorney, and not to promote distrust in the administration of justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty would be resting on a very shaky foundation.124 (Emphases and underscoring supplied.)

That the doctrinal pronouncements in these early cases are still good law can be easily gleaned even from more recent jurisprudence.

In Choa v. Chiongson,125 the Court administratively disciplined a lawyer, through the imposition of a fine, for making malicious and unfounded criticisms of a judge in the guise of an administrative complaint and held, thus:

As an officer of the court and its indispensable partner in the sacred task of administering justice, graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show respect to its officers. This does not mean, however, that a lawyer cannot criticize a judge. As we stated in Tiongco vs. Hon. Aguilar:

It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize the courts. That is his right as a citizen, and it is even his duty as an officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:

Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally answerable to a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).

x x x x

Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:

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But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts. It is such a misconduct, that subjects a lawyer to disciplinary action.

x x x x

Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of expression in the Bill of Rights of the Constitution, must be exercised responsibly, for every right carries with it a corresponding obligation.Freedom is not freedom from responsibility, but freedom with responsibility. x x x.

x x x x

Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to undermine the confidence of people in the integrity of the members of this Court and to degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and malicious statements in pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).

Any criticism against a judge made in the guise of an administrative complaint which is clearly unfounded and impelled by ulterior motive will not excuse the lawyer responsible therefor under his duty of fidelity to his client. x x x.126 (Emphases and underscoring supplied.)

In Saberon v. Larong,127 where this Court found respondent lawyer guilty of simple misconduct for using intemperate language in his pleadings and imposed a fine upon him, we had the occasion to state:

The Code of Professional Responsibility mandates:

CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional colleagues, and shall avoid harassing tactics against opposing counsel.

Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise improper.

CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong language in pursuit of their duty to advance the interests of their clients.

However, while a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not justify the use of offensive and abusive language. Language abounds with countless possibilities for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive.

On many occasions, the Court has reminded members of the Bar to abstain from all offensive personalityand to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged. In keeping with the dignity of the legal profession, a lawyer’s language even in his pleadings must be dignified.128

Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair comment and cannot be deemed as protected free speech. Even In the Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections,129 relied upon by respondents in the Common Compliance, held that:

From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. x x x.130 (Emphasis supplied.)

One such societal value that presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,131 where we indefinitely suspended a lawyer from the practice of law for issuing to the media statements grossly disrespectful towards the Court in relation to a pending case, to wit:

Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interest. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. x x x.132 (Emphases supplied.)

For this reason, the Court cannot uphold the view of some respondents133 that the Statement presents no grave or imminent danger to a legitimate public interest.

The Show Cause Resolution does not interfere with respondents’ academic freedom.

It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic freedom and undisputably, they are free to determine what they will teach their students and how they will teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon respondents the subject matter they can teach and the manner of their instruction. Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject lawyers who teach law to disciplinary action for contumacious conduct and speech, coupled with undue intervention in favor of a party in a pending case, without observing proper procedure, even if purportedly done in their capacity as teachers.

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A novel issue involved in the present controversy, for it has not been passed upon in any previous case before this Court, is the question of whether lawyers who are also law professors can invoke academic freedom as a defense in an administrative proceeding for intemperate statements tending to pressure the Court or influence the outcome of a case or degrade the courts.

Applying by analogy the Court’s past treatment of the "free speech" defense in other bar discipline cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public’s faith in the legal profession and the justice system. To our mind, the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors.

It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano v. Monsod,134 lawyers when they teach law are considered engaged in the practice of law. Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.

Even if the Court was willing to accept respondents’ proposition in the Common Compliance that their issuance of the Statement was in keeping with their duty to "participate in the development of the legal system by initiating or supporting efforts in law reform and in the improvement of the administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give due respect to legal processes and the courts, and to avoid conduct that tends to influence the courts. Members of the Bar cannot be selective regarding which canons to abide by given particular situations. With more reason that law professors are not allowed this indulgence, since they are expected to provide their students exemplars of the Code of Professional Responsibility as a whole and not just their preferred portions thereof.

The Court’s rulings on the submissions regarding the charge of violation of Canons 1, 11 and 13.

Having disposed of respondents’ main arguments of freedom of expression and academic freedom, the Court considers here the other averments in their submissions.

With respect to good faith, respondents’ allegations presented two main ideas: (a) the validity of their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to spur this Court to take the correct action on said issue.

The Court has already clarified that it is not the expression of respondents’ staunch belief that Justice Del Castillo has committed a misconduct that the majority of this Court has found so unbecoming in the Show Cause Resolution. No matter how firm a lawyer’s conviction in the righteousness of his cause there is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the courts and the legal profession into disrepute. This doctrine, which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason, as the respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision therein, in a public statement using contumacious language, which with temerity they subsequently submitted to the Court for "proper disposition."

That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was one of the objectives of the Statement could be seen in the following paragraphs from the same:

And in light of the significance of this decision to the quest for justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and misinterpreted texts.

x x x x

(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial function of the Supreme Court as the ultimate dispenser of justice to all those who have been left without legal or equitable recourse, such as the petitioners therein.135 (Emphases and underscoring supplied.)

Whether or not respondents’ views regarding the plagiarism issue in the Vinuya case had valid basis was wholly immaterial to their liability for contumacious speech and conduct. These are two separate matters to be properly threshed out in separate proceedings. The Court considers it highly inappropriate, if not tantamount to dissembling, the discussion devoted in one of the compliances arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents even go so far as to attach documentary evidence to support the plagiarism charges against Justice Del Castillo in the present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for reconsideration, was still pending at the time of the filing of respondents’ submissions in this administrative case. As respondents themselves admit, they are neither parties nor counsels in the ethics case against Justice Del Castillo. Notwithstanding their professed overriding interest in said ethics case, it is not proper procedure for respondents to bring up their plagiarism arguments here especially when it has no bearing on their own administrative case.

Still on motive, it is also proposed that the choice of language in the Statement was intended for effective speech; that speech must be "forceful enough to make the intended recipients listen."136 One wonders what sort of effect respondents were hoping for in branding this Court as, among others, callous, dishonest and lacking in concern for the basic values of decency and respect. The Court fails to see how it can ennoble the profession if we allow respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive.

This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in the narration of background facts to illustrate the sharp contrast between the civil tenor of these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones who would expectedly be affected by any perception of misuse of their works. Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously took pains to convey their objections in a deferential and scholarly manner. It is unfathomable to the Court why respondents could not do the same. These foreign authors’ letters underscore the universality of the tenet that legal professionals must deal with each other in good faith and due respect. The mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations.

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As for the claim that the respondents’ noble intention is to spur the Court to take "constructive action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was primarily meant for this Court’s consideration, why was the same published and reported in the media first before it was submitted to this Court? It is more plausible that the Statement was prepared for consumption by the general public and designed to capture media attention as part of the effort to generate interest in the most controversial ground in the Supplemental Motion for Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents’ colleague on the UP Law faculty.

In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect to the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statement’s issuance, were still both sub judice or pending final disposition of the Court. These facts have been widely publicized. On this point, respondents allege that at the time the Statement was first drafted on July 27, 2010, they did not know of the constitution of the Ethics Committee and they had issued the Statement under the belief that this Court intended to take no action on the ethics charge against Justice Del Castillo. Still, there was a significant lapse of time from the drafting and printing of the Statement on July 27, 2010 and its publication and submission to this Court in early August when the Ethics Committee had already been convened. If it is true that the respondents’ outrage was fueled by their perception of indifference on the part of the Court then, when it became known that the Court did intend to take action, there was nothing to prevent respondents from recalibrating the Statement to take this supervening event into account in the interest of fairness.

Speaking of the publicity this case has generated, we likewise find no merit in the respondents’ reliance on various news reports and commentaries in the print media and the internet as proof that they are being unfairly "singled out." On the contrary, these same annexes to the Common Compliance show that it is not enough for one to criticize the Court to warrant the institution of disciplinary137 or contempt138 action. This Court takes into account the nature of the criticism and weighs the possible repercussions of the same on the Judiciary. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them. However, when law professors are the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, this Court cannot remain silent for such silence would have a grave implication on legal education in our country.

With respect to the 35 respondents named in the Common Compliance, considering that this appears to be the first time these respondents have been involved in disciplinary proceedings of this sort, the Court is willing to give them the benefit of the doubt that they were for the most part well-intentioned in the issuance of the Statement. However, it is established in jurisprudence that where the excessive and contumacious language used is plain and undeniable, then good intent can only be mitigating. As this Court expounded in Salcedo:

In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or to be recreant to the respect thereto but, unfortunately, there are his phrases which need no further comment. Furthermore, it is a well settled rule in all places where the same conditions and practice as those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45). Neither is the fact that the phrases employed are justified by the facts a valid defense:

"Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense. Respect for the judicial office should always be observed and enforced." (In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an extenuation of liability in this case, taking into consideration Attorney Vicente J. Francisco's state of mind, according to him when he prepared said motion. This court is disposed to make such concession. However, in order to avoid a recurrence thereof and to prevent others, by following the bad example, from taking the same

course, this court considers it imperative to treat the case of said attorney with the justice it deserves.139 (Emphases supplied.)

Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the courts and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the courts and the administration of justice.

With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance compared to his colleagues. In our view, he was the only one among the respondents who showed true candor and sincere deference to the Court. He was able to give a straightforward account of how he came to sign the Statement. He was candid enough to state that his agreement to the Statement was in principle and that the reason plagiarism was a "fair topic of discussion" among the UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about by a division of opinion on whether or not willful or deliberate intent was an element of plagiarism. He was likewise willing to acknowledge that he may have been remiss in failing to assess the effect of the language of the Statement and could have used more care. He did all this without having to retract his position on the plagiarism issue, without demands for undeserved reliefs (as will be discussed below) and without baseless insinuations of deprivation of due process or of prejudgment. This is all that this Court expected from respondents, not for them to sacrifice their principles but only that they recognize that they themselves may have committed some ethical lapse in this affair. We commend Prof. Vaquez for showing that at least one of the respondents can grasp the true import of the Show Cause Resolution involving them. For these reasons, the Court finds Prof. Vasquez’s Compliance satisfactory.

As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused from these proceedings. However, he should be reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court. For even if one is not bound by the Code of Professional Responsibility for members of the Philippine Bar, civility and respect among legal professionals of any nationality should be aspired for under universal standards of decency and fairness.

The Court’s ruling on Dean Leonen’s Compliance regarding the charge of violation of Canon 10.

To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a "dummy" that was not a true and faithful reproduction of the signed Statement.

In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or the body, there were no differences between the two. He attempts to downplay the discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring Integrity I and Restoring Integrity II) by claiming that it is but expected in "live" public manifestos with dynamic and evolving pages as more and more signatories add their imprimatur thereto. He likewise stresses that he is not administratively liable because he did not misrepresent the members of the UP Law faculty who "had agreed with the Restoring Integrity Statement proper and/or who had expressed their desire to be signatories thereto."140

To begin with, the Court cannot subscribe to Dean Leonen’s implied view that the signatures in the Statement are not as significant as its contents. Live public manifesto or not, the Statement was formally submitted to this Court at a specific point in time and it should reflect accurately its signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely in the identities of the

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persons who have signed it, since the Statement’s persuasive authority mainly depends on the reputation and stature of the persons who have endorsed the same. Indeed, it is apparent from respondents’ explanations that their own belief in the "importance" of their positions as UP law professors prompted them to publicly speak out on the matter of the plagiarism issue in the Vinuya case.

Further, in our assessment, the true cause of Dean Leonen’s predicament is the fact that he did not from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It would turn out, according to Dean Leonen’s account, that there were errors in the retyping of the signature pages due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean’s office gave the dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among the signatories of Restoring Integrity II. Second, an unnamed staff also failed to type the name of Atty. Armovit when encoding the signature pages of Restoring Integrity II when in fact he had signed Restoring Integrity I.

The Court can understand why for purposes of posting on a bulletin board or a website a signed document may have to be reformatted and signatures may be indicated by the notation (SGD). This is not unusual. We are willing to accept that the reformatting of documents meant for posting to eliminate blanks is necessitated by vandalism concerns.

However, what is unusual is the submission to a court, especially this Court, of a signed document for the Court’s consideration that did not contain the actual signatures of its authors. In most cases, it is the original signed document that is transmitted to the Court or at the very least a photocopy of the actual signed document. Dean Leonen has not offered any explanation why he deviated from this practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism with respect to court submissions for court employees are accountable for the care of documents and records that may come into their custody. Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual signatures and his silence on the reason therefor is in itself a display of lack of candor.

Still, a careful reading of Dean Leonen’s explanations yield the answer. In the course of his explanation of his willingness to accept his administrative officer’s claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had likewise only authorized him to indicate them as signatories and had not in fact signed the Statement. Thus, at around the time Restoring Integrity II was printed, posted and submitted to this Court, at least one purported signatory thereto had not actually signed the same. Contrary to Dean Leonen’s proposition, that is precisely tantamount to making it appear to this Court that a person or persons participated in an act when such person or persons did not.

We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent standards of intellectual honesty, could proffer the explanation that there was no misrepresentation when he allowed at least one person to be indicated as having actually signed the Statement when all he had was a verbal communication of an intent to sign. In the case of Justice Mendoza, what he had was only hearsay information that the former intended to sign the Statement. If Dean Leonen was truly determined to observe candor and truthfulness in his dealings with the Court, we see no reason why he could not have waited until all the professors who indicated their desire to sign the Statement had in fact signed before transmitting the Statement to the Court as a duly signed document. If it was truly impossible to secure some signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen should have just resigned himself to the signatures that he was able to secure.

We cannot imagine what urgent concern there was that he could not wait for actual signatures before submission of the Statement to this Court. As respondents all asserted, they were neither parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it was a voluntary submission that Dean Leonen could do at any time.

In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory. However, the Court is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his objectives. In due consideration of Dean Leonen’s professed good intentions, the Court deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with the Court as required under Canon 10.

Respondents’ requests for a hearing, for production/presentation of evidence bearing on the plagiarism and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC are unmeritorious.

In the Common Compliance, respondents named therein asked for alternative reliefs should the Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for that purpose, they be allowed to require the production or presentation of witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, and evidence that were presented or may be presented in the ethics case against Justice Del Castillo. The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was substantially echoed in Dean Leonen’s separate Compliance. In Prof. Juan-Bautista’s Compliance, she similarly expressed the sentiment that "[i]f the Restoring Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."141 It is this group of respondents’ premise that these reliefs are necessary for them to be accorded full due process.

The Court finds this contention unmeritorious.

Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the majority’s purported failure to follow the procedure in Rule 71 of the Rules of Court as her main ground for opposition to the Show Cause Resolution.

However, once and for all, it should be clarified that this is not an indirect contempt proceeding and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show Cause Resolution this case was docketed as an administrative matter.

The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:

SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio by the Supreme Court or in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save that the review of the report of investigation shall be conducted directly by the Supreme Court. (Emphasis supplied.)

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From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be followed.

As respondents are fully aware, in general, administrative proceedings do not require a trial type hearing. We have held that:

The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. A formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy.142 (Emphases supplied.)

In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio143 that:

Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor.144 (Emphases supplied.)

In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81, Romblon – On the Prohibition from Engaging in the Private Practice of Law,145 we further observed that:

[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.

In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further investigation after considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their cases. The Court held that those cases sufficiently provided the basis for the determination of respondents' administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur.

Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.

x x x x

These cases clearly show that the absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.146 (Emphases supplied.)

Under the rules and jurisprudence, respondents clearly had no right to a hearing and their reservation of a right they do not have has no effect on these proceedings. Neither have they shown in their pleadings any justification for this Court to call for a hearing in this instance. They have not specifically stated what relevant evidence, documentary or testimonial, they intend to present in their defense that will necessitate a formal hearing.

Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the findings of this Court which were the bases of the Show Cause Resolution were made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that case. This is the primary reason for their request for access to the records and evidence presented in A.M. No. 10-7-17-SC.

This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del Castillo, is a separate and independent matter from this case.

To find the bases of the statements of the Court in the Show Cause Resolution that the respondents issued a Statement with language that the Court deems objectionable during the pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to go no further than the four corners of the Statement itself, its various versions, news reports/columns (many of which respondents themselves supplied to this Court in their Common Compliance) and internet sources that are already of public knowledge.

Considering that what respondents are chiefly required to explain are the language of the Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various versions, the Court does not see how any witness or evidence in the ethics case of Justice Del Castillo could possibly shed light on these facts. To be sure, these facts are within the knowledge of respondents and if there is any evidence on these matters the same would be in their possession.

We find it significant that in Dean Leonen’s Compliance he narrated how as early as September 2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad, predicted that the Court would take some form of action on the Statement. By simply reading a hard copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the Statement’s principles, could foresee the possibility of court action on the same on an implicit recognition that the Statement, as worded, is not a matter this Court should simply let pass. This belies respondents’ claim that it is necessary for them to refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show Cause Resolution.

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If respondents have chosen not to include certain pieces of evidence in their respective compliances or chosen not to make a full defense at this time, because they were counting on being granted a hearing, that is respondents’ own look-out. Indeed, law professors of their stature are supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary cases. They should bear the consequence of the risk they have taken.

Thus, respondents’ requests for a hearing and for access to the records of, and evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.

A final word

In a democracy, members of the legal community are hardly expected to have monolithic views on any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously propound their points of view they are bound by certain rules of conduct for the legal profession. This Court is certainly not claiming that it should be shielded from criticism. All the Court demands is the same respect and courtesy that one lawyer owes to another under established ethical standards. All lawyers, whether they are judges, court employees, professors or private practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct themselves with good fidelity towards the courts. There is no exemption from this sworn duty for law professors, regardless of their status in the academic community or the law school to which they belong.

WHEREFORE, this administrative matter is decided as follows:

(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his Compliance to be satisfactory.

(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35 respondent law professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due respect to the Court and to refrain from intemperate and offensive language tending to influence the Court on pending matters or to denigrate the Court and the administration of justice and warned that the same or similar act in the future shall be dealt with more severely.

(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of his duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to observe full candor and honesty in his dealings with the Court and warned that the same or similar act in the future shall be dealt with more severely.

(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these proceedings. However, he is reminded that while he is engaged as a professor in a Philippine law school he should strive to be a model of responsible and professional conduct to his students even without the threat of sanction from this Court.

(5) Finally, respondents’ requests for a hearing and for access to the records of A.M. No. 10-7-17-SC are denied for lack of merit.

SO ORDERED.

Freedom of Expression

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.

D E C I S I O N

PUNO, C.J.:

A. Precis

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

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

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.5 Later, in a 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

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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

NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and

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

The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same."

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, "praying for the issuance of the writs 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

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Respondents16 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

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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

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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 theclear 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 excludedbroadcast 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’

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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 Rights81— 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.

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(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 inTelecommunications and Broadcast Attorneys of the Philippines v. COMELEC92 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

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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 mediacame 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.

Freedom of Expression, Right to Assembly

G.R. No. 175241 February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners, vs.HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan appeal the June 28, 2006 Decision2 and the October 26, 2006 Resolution3 of the Court of Appeals that found no grave abuse of discretion on the part of respondent Jose "Lito" Atienza, the then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the IBP.

On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter application4 for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members, law students and multi-sectoral organizations.

Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate court’s inaction or refusal to resolve the petition within the period provided under the Public Assembly Act of 1985.7

The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively, denied the petition for being moot and academic, denied the relief that the petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.

The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct of the program.

The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that the petition became moot and lacked merit. The appellate court also denied petitioners’ motion for reconsideration by the second assailed issuance.

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http://www.lawphil.net/judjuris/juri2010/feb2010/gr_175241_2010.html#fnt8








Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of November 18, 2008 which merited petitioners’ Reply of October 2, 2009.

The main issue is whether the appellate court erred in holding that the modification of the venue in IBP’s rally permit does not constitute grave abuse of discretion.

Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and violates their constitutional right to freedom of expression and public assembly.

The Court shall first resolve the preliminary issue of mootness.

Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing of the date of the rally on June 22, 2006.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition, yet evading review.9

In the present case, the question of the legality of a modification of a permit to rally will arise each time the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the limited time in processing the application where the shortest allowable period is five days prior to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand.

Respecting petitioners’ argument that the issues presented in CA-G.R. SP No. 94949 pose a prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the same in the present case.

Under the Rules,10 the existence of a prejudicial question is a ground in a petition to suspend proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be made only upon petition and not at the instance of the judge or the investigating prosecutor,11 the latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being filed. Since a petition to suspend can be filed only in the criminal action,12 the determination of the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before this Court in an appeal from the civil action.

In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of discretion on the part of respondent because the Public Assembly Act does not categorically require respondent to specify in writing the imminent and grave danger of a substantive evil which warrants the denial or modification of the permit and merely mandates that the action taken shall be in writing and shall be served on respondent within 24 hours. The appellate court went on to hold that respondent is authorized to regulate the exercise of the freedom of expression and of public assembly which are not absolute, and that the challenged permit is consistent with Plaza Miranda’s designation as a freedom park where protest rallies are allowed without permit.

The Court finds for petitioners.

Section 6 of the Public Assembly Act reads:

Section 6. Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied)

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court reiterated:

x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent . Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single

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guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest.14 (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows:

x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached . If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.16 (italics and underscoring supplied)

In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit.1avvphi1

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which "blank" denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."17 (emphasis and underscoring supplied)

Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutory

provision, not to have modified the permit "in terms satisfactory to the applicant."18

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 94949 areREVERSED. The Court DECLARES that respondent committed grave abuse of discretion in modifying

the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza Miranda.

SO ORDERED.

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CONSTI 3.25.15

Documents

Transcript of CONSTI 3.25.15