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Transcript of PRELIM- Media Law MC AdDU
Kapunan vs de Villa 6/22/11 9:55 AM
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83177 December 6, 1988
LT. COL. EDUARDO KAPUNAN, JR., PAF, and LT. COL. NELSON ESLAO, PAF,
petitioners,
vs.
AFP CHIEF OF STAFF GEN. RENATO S. DE VILLA, BRIG. GEN. MANUEL
CASACLANG, AFP, COMMODORE VIRGILIO Q. MARCELO, AFP, PMA
SUPERINTENDENT COMMODORE ROGELIO DAYAN, AFP, GENERAL COURT
MARTIAL NO. 8, MAJ. PEDRO ROSAL, JAGS, MAJ. FELIX V. BALDONADO, JAGS,
LT. COL. RODULFO MUNAR, JAGS and AFP BOARD OF OFFICERS, respondents.
Roco, Bunag & Kapunan Law Offices for petitioners.
Office of the Solicitor General for respondents.
R E S O L U T I O N
PER CURIAM:
In this petition for certiorari, prohibition and/or habeas corpus, petitioners,
who were implicated in the unsuccessful coup d'etat of August 28, 1987 and
relieved of their duties in the Philippine Military Academy (PMA), seek the
issuance of the writs of certiorari and prohibition (1) to set aside, as null and
void, the "pre-trial investigation" report finding a prima facie case against
them and recommending their trial for mutiny and conduct unbecoming an
officer and the denial of their motion for reconsideration, and (2) to enjoin
respondent General Court Martial No. 8 from further proceeding in the case
of "People v. Lt. Col. Eduardo Kapunan, et al." Further, petitioner Kapunan
seeks the issuance of a writ of habeas corpus to procure his release from
confinement.
On May 19, 1988, the Court issued an order restraining respondent General
Court Martial No. 8 from proceeding with the arraignment of petitioners
scheduled for that date [Rollo, pp. 124-125].
The Solicitor General filed a comment in behalf of the respondents, to which
petitioners filed a reply. After petitioners moved for the early resolution of
the case and respondents filed the required rejoinder, the Court considered
the case ripe for resolution.
In brief, the pertinent facts are as follows:
In the aftermath of the failed August 28, 1987 coup d'etat where cadets of
the Philippine Military Academy reportedly openly supported the plotters and
issued statements to that effect, respondent PMA Superintendent Dayan
created on August 31, 1987 a PMA Board of Officers to investigate the
alleged involvement of officers and cadets of the PMA [Rollo, p. 187]. A fact-
finding investigation was conducted by the PMA Board from September 1 to
11, 1987 and on September 23, 1987 it submitted its findings to the AFP
Chief of Staff [Rollo, p. 195]. On the basis of the findings of the PMA Board,
respondent AFP Board of Officers recommended on October 8, 1987 the filing
of charges against Maj. Doromal and Lts. Catapang and Baltazar and the
reprimand of cadets Paredes, Tutaan, D. Macasaet, F. Macasaet, Lenterio,
Rulloda and Balisi [Rollo, pp. 34-36].
A few days later, respondent PMA Superintendent Dayan verbally instructed
the PMA Board of Officers to take the testimonies of certain witnesses, which
it did from October 12 to 16,1987 [Rollo, p. 195]. These statements were
submitted to the Chief of Staff [Rollo, p. 37] and became the basis for the
recommendation of the AFP Board, dated October 30, 1987, for the filing of
charges against petitioners [Rollo, pp. 38-40]. Charge sheets (and amended
charge sheets) were filed against petitioners for mutiny and conduct
unbecoming an officer (Arts. 67 and 96 of the Articles of War) [Rollo, pp. 42-
45; 72-75] and a "pre-trial investigation" was conducted by respondent Maj.
Baldonado.
Petitioners were subpoenaed and required by Maj. Baldonado to file their
counter-affidavits or testify in the "pre-trial investigation" [Rollo, p. 41], but
instead of doing so, petitioners filed an untitled pleading seeking the
dismissal of the charges against them [Rollo, pp. 46-68]. In a "pre-trial
investigation" report dated February 1, 1988, a prima facie case was found
against petitioners and the case was recommended for trial by a general
court martial [Rollo, pp. 76-80]. Petitioners' motion to dismiss was also
denied.
Thereafter, petitioners were served subpoenas to appear before respondent
General Court Martial No. 8 for arraignment. The first scheduled hearing for
petitioners' arraignment was reset after three (3) members of the general
court martial inhibited themselves. Petitioners, in the meantime, filed a
motion for reconsideration of the "pre-trial investigation" report. In the next
hearing, petitioners objected to their arraignment and moved for a
deferment thereof. When this was denied, petitioners' civilian counsel (their
counsel in this case) moved to be excused from the proceedings. The
general court martial granted the motion and postponed the hearing to May
19, 1988, directing petitioners to secure the services of new counsel. It was
at this point that the instant petition was filed before the Court.
In the meantime, petitioner Kapunan was allegedly summoned to the
General Headquarters of the AFP for a dialogue, but upon his arrival thereat
on September 4, 1987 he was ordered confined under "house arrest" by then
Chief of Staff Gen. Fidel Ramos. On February 19, 1988, the arrest of
petitioner Kapunan, together with three (3) others, was ordered by
respondent Chief of Staff De Villa in connection with the killing of Atty.
Rolando Olalia and Leonore Alay-ay [Rollo, p. 69]. On May 19, 1988, Gen. De
Villa ordered the release of Kapunan in connection with the Olalia case since
no charges had been filed therein, but ordered that he remain under
confinement as an accused in the case before respondent General Court
Martial No. 8 [Rollo, p. 200]. He has been so detained since then. Likewise,
petitioners Kapunan and Eslao were relieved of their duties and functions as
Assistant Chief of Staff for Operations and Assistant Commandant of Cadets
of the PMA, respectively.
After the instant petition was filed, petitioners' motion for reconsideration of
the "pre-trial investigation" report was denied by Gen. De Villa [Rollo, pp
128-129].
The issues raised in the petition are three-fold: (1) whether or not petitioners
have been denied due process of law in the investigation of the charges
against them; (2) whether or not respondent Maj. Baldonado gravely abused
his discretion in finding a prima facie case and recommending the trial of
petitioners before a court martial; and (3) whether or not the continued
confinement of petitioner Kapunan is legal.
These issues shall be discussed ad seriatim.
1. Petitioners contend that they have been denied due process primarily
because the procedure followed in the investigation of the charges against
them was not in compliance with the requirements of the Articles of War
(Commonwealth Act No. 408, as amended) and the law on preliminary
investigations (Presidential Decree No. 77, as amended by P.D. No. 911).
Under military law, the conduct of investigations is primarily governed by
Art. 71 of the Articles of War, to wit:
Art. 71 Charges; Action upon.—Charges and specifications must be signed by
a person subject to military law, and under the oath either that he has
personal knowledge of, or has investigated, the matters set forth therein and
that the same are true in fact, to the best of his knowledge and belief.
No charge will be referred to a general court-martial for trial until after a
thorough and impartial investigation thereof shall have been made. This
investigation will include inquiries as to the truth of the matter set forth in
said charges, form of charges, and what disposition of the case should be
made in the interest of justice and discipline. At such investigation full
opportunity shall be given to the accused to cross-examine witnesses against
him if they are available and to present anything he may desire in his own
behalf, either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are
forwarded after such investigation, they shall be accompanied by a
statement of the substance of the testimony taken on both sides.
xxx xxx xxx
On the other hand, P.D. No. 77, as amended by P.D. No. 911, which
respondent Maj. Baldonado applied suppletorily to the Articles of War by
requiring petitioners to file their counter-affidavits [Rollo, p. 41], provides:
Sec. 1. Notwithstanding any provision of law to the contrary and except
when an investigation has been conducted by a judge of first instance, city
or municipal judge or other officer in accordance with law and the Rules of
Court of the Philippines, no information for an offense cognizable by the
Court of First Instance shall be filed by the provincial or city fiscal or his
assistants or by a state prosecutor, without first conducting a preliminary
investigation in the following manner:
a. All complaints shall be accompanied by statements of the complainant
and his witnesses as well as other supporting documents. The statements of
the complainant and his witnesses shall be sworn to before any fiscal or
state prosecutor or before any government official authorized to administer
oath. The officer administering the oath must certify that he has personally
examined the affiants and that he is satisfied that they voluntarily executed
and understood their affidavits.
b. If on the basis of the complainant's sworn statements and documents
submitted, the investigating fiscal or state prosecutor finds no probable
cause to conduct a preliminary investigation, he shall dismiss the case. If
probable cause is established by complainant's evidence, he shall notify the
respondent by issuing a subpoena requiring him to submit his counter-
affidavit and the affidavit of his witnesses, if any, and other supporting
documents, within ten (10) days from receipt of such subpoena. If
respondent cannot be subpoenaed, or if subpoenaed he does not appear
before the investigating fiscal or state prosecutor, the preliminary
investigation shall proceed without him. To such subpoena shall be attached
a copy of the complaint, the sworn statements and other documents
submitted. Other evidence submitted shall be made available for
examination of the respondent or his counsel. The statements of the
respondent and his witnesses shall be sworn to before any fiscal or state
prosecutor or before any government official authorized to administer oath
and with the same certification as above-mentioned. The respondent shall
furnish the complainant copies of his counter-affidavits and other supporting
documents.
c. If a prima-facie case is established by the evidence, the investigating fiscal
or state prosecutor shall immediately file the corresponding information in
court. If he finds that there is no prima facie case, he shall dismiss the case
unless he believes there are matters to be clarified in which case he may
propound clarificatory questions to the parties or their witnesses affording
both parties opportunity to be present but without right to examine or cross-
examine. If the parties or their counsel so desire, they may submit questions
to the fiscal which the latter may in his discretion propound to the parties
concerned.
xxx xxx xxx
The Court finds that, contrary to the contention of petitioners, there was
substantial compliance with the requirements of law as provided in the
Articles of War and P.D. No. 77, as amended by P.D. No. 911.
The amended charge sheets, charging petitioners and their co-respondents
with mutiny and conduct unbecoming an officer [Rollo, pp. 42-45; 72-75],
were signed by Maj. Antonio Ruiz, a person subject to military law, after he
had investigated the matter through an evaluation of the pertinent records,
including the reports of respondent AFP Board of Officers [Rollo, pp. 34-36;
38-40], and was convinced of the truth of the testimonies on record. The
charge sheets were sworn to by Maj. Ruiz, the "accuser", in accordance with
and in the manner provided under Art. 71 of the Articles of War [Rollo, pp.
45, 75]. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of
suppletory application, the fact that the charge sheets were not certified in
the manner provided under said decrees, i.e., that the officer administering
the oath has personally examined the affiant and that he is satisfied that
they voluntarily executed and understood his affidavit, does not invalidate
said charge sheets.
Thereafter, a "pre-trial investigation" was conducted by respondent Maj.
Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911,
petitioners were subpoenaed and required to file their counter-affidavits
[Rollo, p. 41]. However, instead of doing so, they filed an untitled pleading
seeking the dismissal of the charges against them [Rollo, pp. 46-68]. That
petitioners were not able to confront the witnesses against them was their
own doing, for they never even asked Maj. Baldonado to subpoena said
witnesses so that they may be made to answer clarificatory questions in
accordance with P.D. No. 77, as amended by P. D. No. 911.
Further, petitioners cannot complain that they were denied the opportunity
to be heard, considering that the arguments in their pleading seeking the
dismissal of the charges were considered in Maj. Baldonado's "pre-trial
investigation" report, as can be clearly seen from the text of the report itself
[Rollo, pp. 76-80].
Anent petitioners' contention that they were denied due process when they
were not given the opportunity to be heard in the inquiry conducted by the
PMA Board of Officers, it must be stressed that such was in the nature of a
fact-finding inquiry, as distinguished from the "pre-trial investigation"
conducted by Maj. Baldonado which corresponds to the preliminary
investigation under P.D. No. 77, as amended by P.D. No. 911, where the
object is to determine the existence of a prima facie case that would warrant
the prosecution of the accused. Viewed from another angle, the
investigations conducted by the PMA Board were akin to the investigations
conducted by the police and other investigative agencies to gather facts to
support the subsequent filing of the appropriate charges against suspects.
Collaterally, petitioners argue that they were denied due process because
the investigators, Chief of Staff de Villa, who denied the motion to reconsider
the "pre-trial investigation" report, and PMA Superintendent Dayan, who
constituted the PMA Board of Officers and ordered the inquiry, were
themselves culpable for the acts of the PMA cadets and officers on the basis
of the doctrine of command responsibility. This argument must however fail
as the doctrine finds no application to the facts of the case. The acts imputed
to petitioners were allegedly in furtherance of the failed coup d'etat of
August 28, 1987, which constituted a breach of and was directed against the
chain of command of the AFP, which De Villa and Dayan formed part of. The
fallacy in petitioners' reliance on the doctrine of command responsibility
becomes apparent when their argument is pursued to its logical end. Under
their theory, even the President, as Commander-in-Chief, can ultimately be
held culpable for the unsuccessful August 28, 1987 coup d' etat.
2. The next issue raised by petitioners is the alleged insufficiency of the
evidence to establish a prima facie case to warrant their prosecution. They
argue that the factual findings of Maj. Baldonado in his "pre-trial
investigation" report are insufficient to support a prima facie case for mutiny
and conduct unbecoming an officer under Arts. 67 and 96 of the Articles of
War and, therefore, he gravely abused his discretion, amounting to lack or
excess of jurisdiction, in finding a prima facie case and recommending the
trial of petitioners by court martial.
The Court finds the contention unmeritorious. No grave abuse of discretion
amounting to lack or excess of jurisdiction can be attributed to Maj.
Baldonado for finding a prima facie case, for such is supported by the
evidence on record. Thus, the "pre-trial investigation" report states:
xxx xxx xxx
5. On or about 2400H 28 Aug 87, CAPT ALFREDO BAMBICO JR. PA a member
of the Tactics Group briefed PMA Cadets at the Officer's Lounge about the
camp defense plan and the movements of cadets from PMA to Baguio City.
Present at the briefing were respondents LT. COL. EDUARDO KAPUNAN and
LT. COL. NELSON ESLAO and about thirty (30) junior officers. On or about
0200H 29 Aug 87, CAPT CELSO DEL ROSARIO CO Transportation
Maintenance Company, PMA received a call from LT. COL. KAPUNAN J-3, PMA
to dispatch two (2) 6 x 6 trucks and one (1) bus to proceed near the vicinity
of the J-3 Office. On or about 0200H - 0300H 29 Aug 87 said vehicles moved
out with cadets on board, and led by respondent l LT. CATAPANG who was on
board a jeep. CADET (1 C) JOHN BULALACAO stated that LT. BALTAZAR was
with them in the bus. This movement of cadets and officers was not
sanctioned by the PMA Superintendent. According to SGT. MARBI RIMANDO,
driver of one of the 6 x 6 trucks, the cadets were in fatigue uniform, wore
black bonnets, had blackened their faces, and were armed.
6. SGT. RICARDO LAGMAY, Truck Driver, Motor Pool, TMC PMA averred that
he was the driver of the other 6 x 6 truck with about forty (40) cadets on
board, which moved out on that occasion. The column was, however,
stopped at the checkpoint by an MP officer and they halted and parked
thereat for about thirty (30) minutes, after which they returned to the mess
hall. CADET (1C) BULALACAO stated that the cadets were met at the mess
hall by LT. COL. KAPUNAN and were informed by the latter that the cause or
coup was already finished. CADET (1C) NEMESIO GACAL stated that he heard
LT. COL. KAPUNAN say, that "we are a hell of a corps". [Rollo, pp. 77].
Maj. Baldonado's findings are also supported by those of the AFP Board of
Officers, which considered the testimonies of witnesses taken by the PMA
Board of Officers pursuant to the order of PMA Superintendent Dayan [see
Rollo, pp. 38-40].
3. Finally, petitioner Kapunan questions the legality of his confinement under
"house arrest" and seeks the issuance of a writ of habeas corpus to procure
his release.
The Court finds that petitioner Kapunan's continued confinement is not
tainted with illegality.
Among the grounds for the disallowance of the writ of habeas corpus is that
the applicant has been charged with or convicted of in offense [Sec. 4, Rule
102, Rules of Court]. In the instant case, petitioner Kapunan had been
charged with mutiny, a serious offense punishable by death or such other
punishment as a court-martial may direct [Art. 67, Articles of War], for which
he may be arrested or confined under Art. 70 of the Articles of War, to wit:
Art. 70. Arrest or confinement.—Any person subject to military law charged
with crime or with a serious offense under these Articles shall be placed in
confinement or in arrest, as circumstances may require; but when charged
with a minor offense only, such person shall not ordinarily be placed in
confinement. Any person placed in arrest under the provisions of this article
shall thereby be restricted to his barracks, quarters, or tent, unless such
limits shall be enlarged by proper authority. ...
Thus, at the time petitioner Kapunan applied to this Court for the issuance of
the writ of habeas corpus, there was legal cause for his confinement. On this
score, the writ prayed for will not issue.
On the matter of the restriction imposed on petitioner Kapunan as conditions
for his "house arrest", particularly that he may not issue any press
statements or give any press conference during the period of his detention
at his quarters in Camp Aguinaldo, Quezon City [Rollo, p. 70], the Court is of
the view that such is justified by the requirements of military discipline. It
cannot be gainsaid that certain liberties of persons in the military service,
including the freedom of speech, may be circumscribed by rules of military
discipline. Thus, to a certain degree, individual rights may be curtailed,
because the effectiveness of the military in fulfilling its duties under the law
depends to a large extent on the maintenance of discipline within its ranks.
Hence, lawful orders must be followed without question and rules must be
faithfully complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered.
ACCORDINGLY, the Court Resolved to DISMISS the Petition. The temporary
restraining order issued by the Court on May 19, 1988 is hereby LIFTED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Lagunzad vs Gonzales 6/22/11 9:55 AM
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32066 August 6, 1979
MANUEL LAGUNZAD, petitioner,
vs.
MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents.
Diosdado P. Peralta for petitioner.
Manuel S. Tonogbanua for private respondent.
MELENCIO-HERRERA, J.:
Before us is a Petition for Review by certiorari of the Decision of the Court of
Appeals in CA-G.R. No. 34703, promulgated on January 13, 1970, affirming
the Decision of the Court of First Instance of Negros Occidental, dated June
30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs.
Manuel Lagunzad," for a Sum of Money and Attachment.
The present controversy stems from a "Licensing Agreement" entered into
by and between petitioner Manuel M. Lagunzad and private respondent
Maria Soto Vda. de Gonzales on October 5, 1961, which contract petitioner
claims to be null and void for having been entered into by him under duress,
intimidation and undue influence.
The antecedental facts follow: Sometime in August, 1961, petitioner Manuel
Lagunzad, a newspaperman, began the production of a movie entitled "The
Moises Padilla Story" under the name of his own business outfit, the "MML
Productions." It was based mainly on the copyrighted but unpublished book
of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros"
subtitled "The Moises Padilla Story," 1 the rights to which petitioner had
purchased from Atty. Rodriguez in the amount of P2,000.00. 2
The book narrates the events which culminated in the murder of Moises
Padilla sometime between November 11 and November 17, 1951. Padilla
was then a mayoralty candidate of the Nacionalista Party (then the minority
party) for the Municipality of Magallon, Negros Occidental, during the
November, 1951 elections. Governor Rafael Lacson, a member of the Liberal
Party then in power and his men were tried and convicted for that murder in
People vs. Lacson, et al. 3 In the book, Moises Padilla is portrayed as "a
martyr in contemporary political history."
Although the emphasis of the movie was on the public life of Moises Padilla,
there were portions which dealt with his private and family life including the
portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales,
private respondent herein, and of one "Auring" as his girl friend. 4
The movie was scheduled for a premiere showing on October 16, 1961, or at
the very latest, before the November, 1961 elections.
On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly
Amante, half-sister of Moises Padilla, objecting to the filming of the movie
and the "exploitation" of his life. Shown the early "rushes" of the picture,
Mrs. Amante and her sister, Mrs. Gavieres, objected to many portions thereof
notwithstanding petitioner's explanation that the movie had been supervised
by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in
Negros." On October 5, 1961, Mrs. Amante, for and in behalf of her mother,
private respondent, demanded in writing for certain changes, corrections and
deletions in the movie. 5 Petitioner contends that he acceded to the
demands because he had already invested heavily in the picture to the
extent of mortgaging his properties, 6 in addition to the fact that he had to
meet the scheduled target date of the premiere showing.
On the same date, October 5, 1961, after some bargaining as to the amount
to be paid, which was P50,000.00 at first, then reduced to P20,000.00, 7
petitioner and private respondent, represented by her daughters and Atty.
Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a
"Licensing Agreement" reading as follows:
LICENSING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement, made and executed at the City of Manila, Philippines, this
5th day of October, 1961, by and between:
MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the
business of producing motion pictures under the style of "MML Productions"
with residence at 76 Central Boulevard, Quezon City and with offices at 301
Cu Unjieng Bldg., Escolta, Manila and hereinafter referred to as LICENSEE,
— and —
MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the
Municipality of Moises Padilla, Province of Negros Occidental, represented in
this Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and
resident of 393F-Buencamino St., San Miguel, Manila; Maria Nelly G. Amazite,
of legal age and resident of 121 South 13, Quezon City; and Dolores G,
Gavieres, of legal age, and resident of 511 San Rafael Street, Quiapo, Manila,
also duly authorized and hereinafter referred to as LICENSOR,
WITNESSETH:
That, the LICENSEE is currently producing a motion picture entitled "The
Moises Padilla Story" (hereinafter referred to as the PICTURE, for short)
based on certain episodes in the life of Moises Padilla, now deceased:
That the LICENSOR is the legitimate mother and only surviving compulsory
heir of Moises Padilla, the latter not having married during his lifetime and
having died without any descendants, legitimate or illegitimate;
That, in the PICTURE and in all incidents thereof, such as scenarios,
advertisements, etc., the LICENSEE has, without the prior consent and
authority of LICENSOR, exploited the life story of Moises Padilla for pecuniary
gain and other profit motives, and has, furthermore encroached upon the
privacy of Moises Padilla's immediate family, and has in fact, included in the
PICTURE'S cast, persons portraying some of MOISES PADILLA's kin, including
LICENSOR herself;
That, for and in consideration of the foregoing premises and the other
covenants and conditions hereunder stated, the LICENSOR hereby grants
authority and permission to LICENSEE to exploit, use, and develop the life
story of Moises Padilla for purposes of producing the PICTURE, and in
connection with matters incidental to said production, such as advertising
and the like, as well as authority and permission for the use of LICENSOR's
name in the PICTURE and have herself portrayed therein, the authority and
permission hereby granted, to retroact to the date when LICENSEE first
committed any of the acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS
FOLLOWS:
1. For and in consideration of the authority and permission hereby granted
by LICENSOR to LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope
E. Adriano at the Pelaez and Jalandoni Law Office, 6th Floor, Magsaysay
Bldg., San Luis, Ermita, Manila, the following:
a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency,
payable without need of further demand, as follows: P5,000.00 on or before
Oct. 10, 1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or
before November 30, 1961. In default of the payment of any of these
amounts as they fall due, the others become immediately due and
demandable.
b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM
(2-½ %) of all gross income or receipts derived by, and/or for and in behalf
of, LICENSEE as rentals and or percentage of box office receipts from
exhibitors and others for the right to exploit, use, distribute and/or exhibit
the picture anywhere here in the Philippines or abroad.
2) The LICENSEE agrees to keep complete, true and accurate books of
accounts, contracts and vouchers relating to the exploitation, distribution
and exhibition of the PICTURE, the bookings thereof and the rentals and
gross receipts therefrom, and to give to LICENSOR and/or her accredited
representatives, full access at all reasonable times to all of the said books,
accounts, records, vouchers and all other papers.
3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate,
showing in detail the gross receipts accruing from the picture, which monthly
statements shall be delivered to the LICENSOR with reasonable promptness,
and upon verification and approval of said statements by LICENSOR, the
LICENSEE shall pay the corresponding royalties due to the LICENSOR.
4) The authority and permission herein granted is subject to the condition
that LICENSEE shall change, delete, and/or correct such portions in the
PICTURE as the LICENSOR may require, in writing before final printing of the
PICTURE, and shall, furthermore, not be understood as a consent to anything
in the picture that is, or tends to be, derogatory to the deceased MOISES
PADILLA or to LICENSOR.
5) The LICENSOR shall not in any way be liable on any claim from third
persons as a result of, or arising from, the manner by which the PICTURE is
put together, nor on any claim arising from the production, distribution and
exhibition of the PICTURE, and in the event of any such claim being asserted
against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless
thereon.
6) This agreement shall be binding upon the parties hereto, their
representatives, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date
and at the place first above stated.
MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD
Licensor Licensee
By:
(Sgd.) ERNESTO R. RODRIGUEZ, Jr.
(Sgd.) MARIA NELLY G. AMANTE
(Sgd.) DOLORES G. GAVIERES
Attorneys-in-fact
SIGNED IN THE PRESENCE OF:
LOPE E. ADRIANO ILLEGIBLE
ACKNOWLEDGMENT
Petitioner takes the position that he was pressured into signing the
Agreement because of private respondent's demand, through Mrs. Amante,
for payment for the "exploitation" of the life story of Moises Padilla,
otherwise, she would "call a press conference declaring the whole picture as
a fake, fraud and a hoax and would denounce the whole thing in the press,
radio, television and that they were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent the amount of
P5,000.00 but contends that he did so not pursuant to their Agreement but
just to placate private respondent. 9
On October 14, 1961, the filming of the movie was completed. On October
16, 1961, a premiere showing was held at the Hollywood Theatre, Manila,
with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie
was shown in different theaters all over the country.
Because petitioner refused to pay any additional amounts pursuant to the
Agreement, on December 22, 1961, private respondent instituted the
present suit against him praying for judgment in her favor ordering petitioner
1) to pay her the amount of P15,000.00, with legal interest from the filing of
the Complaint; 2) to render an accounting of the proceeds from the picture
and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's
fees equivalent to 20% of the amounts claimed; and 4) to pay the costs.
Traversing the Complaint, petitioner contended in his Answer that the
episodes in the life of Moises Padilla depicted in the movie were matters of
public knowledge and occurred at or about the same time that the deceased
became and was a public figure; that private respondent has no property
right over those incidents; that the Licensing Agreement was without valid
cause or consideration and that he signed the same only because private
respondent threatened him with unfounded and harassing action which
would have delayed production; and that he paid private respondent the
amount of P5,000.00 in October, 1961, only because of the coercion and
threat employed upon him. By way of counterclaim, petitioner demanded
that the Licensing Agreement be declared null and void for being without any
valid cause; that private respondent be ordered to return to him the amount
of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and
P7,500.00 as attorney's fees.
Private respondent duly filed her Answer to Counterclaim alleging that the
transaction between her and petitioner was entered into freely and
voluntarily.
On June 30, 1964, the trial Court rendered a Decision, and decreed in its
dispositive portion:
WHEREFORE, judgment is hereby rendered ordering the defendant Manuel
Lagunzad to pay the plaintiff the sum of P15,000.00 with interest at the rate
of 6% per annum from December 22, 1961 up to its complete payment; to
order the defendant to render an accounting of the gross income or proceeds
derived from the exhibition, use and/or rental of the motion picture of "The
Moises Padilla Story" and to pay the plaintiff 2- 1/2% of said gross income; to
pay the plaintiff the amount equivalent to 20% of the amount due the
plaintiff under the first cause of action as attorney's fees; and to pay the
costs.
On appeal to the Court of Appeals, the latter Court affirmed the judgment.
Reconsideration having been denied by the Court, petitioner filed the instant
Petition for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the Petition for lack of merit,
but resolved subsequently to give it due course after petitioner moved for
reconsideration on the additional argument that the movie production was in
exercise of the constitutional right of freedom of expression, and that the
Licensing cement is a form of restraint on the freedom of speech and of the
press.
In his Brief, petitioner assigns the following errors to the appellate Court:
I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE
BECAUSE THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE
AND CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE
FINDINGS OF FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING
AGREEMENT, EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN
ILLEGAL CAUSE OR CONSIDERATION OF CONTRACT, PETITIONER HAVING
PREVIOUSLY OBTAINED THE AUTHORITY AND/OR PERMISSION PURPOSELY
GRANTED TO HIM BY RESPONDENT UNDER SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING
HAD ANY PROPERTY NIGHTS OVER THE INCIDENTS IN THE LIFE OF MOISES
PADILLA WHO WAS A PUBLIC FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT
HAVING BEEN PROCURED BY MEANS OF DURESS, INTIMIDATION AND UNDUE
INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF
RESPONDENT AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE
RIGHT OF PETITIONER TO FILM THE PUBLIC LIFE OF A PUBLIC FIGURE,
INFRINGED UPON THE CONSTITUTIONAL RIGHT OF PETITIONER TO FREE
SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had been ordered,
respondent Court of Appeals did not have jurisdiction over the case as the
Decision of the lower Court was not yet final and appealable, is untenable.
The doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by
petitioner, which held that whether or not the action for accounting is the
principal action or is merely incidental to another, the judgment requiring
such accounting cannot be final, has been abandoned in Miranda vs. Court of
Appeals 12 which ruled:
For the guidance of bench and bar, the Court declares as abandoned the
doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that
judgments for recovery with accounting are final and appealable (without
need of awaiting the accounting) and would become final and executory if
not appealed within the reglementary period.
In other words, where there is complete adjudication and determination of
the rights and obligations of the parties, as in the instant case, an order for
accounting in that judgment does not affect its final character, said
accounting being merely incidental to the judgment.
Petitioner's contention that respondent Court failed to make complete
findings of fact on all issues raised before it is without basis. A careful study
of the Decision reveals that respondent Court has substantially and
sufficiently complied with the injunction that a decision must state clearly
and distinctly the facts and the law on which it is based. The rule remains
that the ultimate test as to the sufficiency of a Court's findings of fact is
"whether they are comprehensive enough and pertinent to the issues raised
to provide a basis for decision." 13 The judgment sought to be reviewed
sufficiently complies with this requirement.
Neither do we agree with petitioner's submission that the Licensing
Agreement is null and void for lack of, or for having an illegal cause or
consideration. While it is true that petitioner had purchased the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need
for prior consent and authority from the deceased heirs to portray publicly
episodes in said deceased's life and in that of his mother and the members
of his family. As held in Schuyler v. Curtis, 14 "a privilege may be given the
surviving relatives of a deceased person to protect his memory, but the
privilege exists for the benefit of the living, to protect their feelings and to
prevent a violation of their own rights in the character and memory of the
deceased."
Petitioner's averment that private respondent did not have any property
right over the life of Moises Padilla since the latter was a public figure, is
neither well taken. Being a public figure ipso facto does not automatically
destroy in toto a person's right to privacy. The right to invade a person's
privacy to disseminate public information does not extend to a fictional or
novelized representation of a person, no matter how public a figure he or she
may be. 15 In the case at bar, while it is true that petitioner exerted efforts
to present a true-to-life story of Moises Padilla, petitioner admits that he
included a little romance in the film because without it, it would be a drab
story of torture and brutality. 16
We also find it difficult to sustain petitioner's posture that his consent to the
Licensing Agreement was procured thru duress, intimidation and undue
influence exerted on him by private respondent and her daughters at a time
when he had exhausted his financial resources, the premiere showing of the
picture was imminent, and "time was of the essence." As held in Martinez vs.
Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real
duress and the motive which is present when one gives his consent
reluctantly. A contract is valid even though one of the parties entered into it
against his own wish and desires, or even against his better judgment. In
legal effect, there is no difference between a contract wherein one of the
contracting parties exchanges one condition for another because he looks for
greater profit or gain by reason of such change, and an agreement wherein
one of the contracting parties agrees to accept the lesser of two
disadvantages. In either case, he makes a choice free and untramelled and
must accordingly abide by it. The Licensing Agreement has the force of law
between the contracting parties and since its provisions are not contrary to
law, morals, good customs, public order or public policy (Art. 1306, Civil
Code), petitioner Should comply with it in good faith.
Lastly, neither do we find merit in petitioner's contention that the Licensing
Agreement infringes on the constitutional right of freedom of speech and of
the press, in that, as a citizen and as a newspaperman, he had the right to
express his thoughts in film on the public life of Moises Padilla without prior
restraint. The right of freedom of expression, indeed, occupies a preferred
position in the "hierarchy of civil liberties." 18 It is not, however, without
limitations. As held in Gonzales vs. Commission on Elections, 27 SCRA 835,
858 (1969):
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.
The prevailing doctrine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and of the press, which includes such vehicles of the mass media as radio,
television and the movies, is the "balancing-of-interests test." 19 The
principle i requires a court to take conscious and detailed consideration of
the interplay of interests observable in a given situation or type of situation."
20
In the case at bar, the interests observable are the right to privacy asserted
by respondent and the right of -freedom of expression invoked by petitioner.
Taking into account the interplay of those interests, we hold that under the
particular circumstances presented, and considering the obligations assumed
in the Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of freedom
of expression are reached when expression touches upon matters of
essentially private concern.
WHEREFORE, the Petition for Review is denied and the judgment appealed
from hereby affirmed. Costs against petitioner.
SO ORDERED.
Blo vs Comelec 6/22/11 9:55 AM
G.R. No. 103956 March 31, 1992
BLO UMPAR ADIONG, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
GUTIERREZ, JR., J.:
The specific issue in this petition is whether or not the Commission on
Elections (COMELEC) may prohibit the posting of decals and stickers on
"mobile" places, public or private, and limit their location or publication to
the authorized posting areas that it fixes.
On January 13, 1992, the COMELEC promulgated Resolution No. 2347
pursuant to its powers granted by the Constitution, the Omnibus Election
Code, Republic Acts Nos. 6646 and 7166 and other election laws.
Section 15(a) of the resolution provides:
Sec. 15. Lawful Election Propaganda. — The following are lawful election
propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters,
or other written or printed materials not more than eight and one-half (8-1/2)
inches in width and fourteen (14) inches in length. Provided, That decals and
stickers may be posted only in any of the authorized posting areas provided
in paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda. —
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any election
propaganda in any place, whether public or private, mobile or stationary,
except in the COMELEC common posted areas and/or billboards, at the
campaign headquarters of the candidate or political party, organization or
coalition, or at the candidate's own residential house or one of his residential
houses, if he has more than one: Provided, that such posters or election
propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)
xxx xxx xxx
The statutory provisions sought to be enforced by COMELEC are Section 82
of the Omnibus Election Code on lawful election propaganda which provides:
Lawful election propaganda. — Lawful election propaganda shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed
materials of a size not more than eight and one-half inches in width and
fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any
particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an
area not exceeding two feet by three feet, except that, at the site and on the
occasion of a public meeting or rally, or in announcing the holding of said
meeting or rally, streamers not exceeding three feet by eight feet in size,
shall be allowed: Provided, That said streamers may not be displayed except
one week before the date of the meeting or rally and that it shall be removed
within seventy-two hours after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and
hearing where all the interested parties were given an equal opportunity to
be heard: Provided, That the Commission's authorization shall be published
in two newspapers of general circulation throughout the nation for at least
twice within one week after the authorization has been granted. (Section 37,
1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda. — In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any place, whether private, or
public, except in the common poster areas and/or billboards provided in the
immediately preceding section, at the candidate's own residence, or at the
campaign headquarters of the candidate or political party: Provided, That
such posters or election propaganda shall in no case exceed two (2) feet by
three (3) feet in area: Provided, Further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) and
not exceeding three (3) feet by eight (8) feet each may be displayed five (5)
days before the date of the meeting or rally, and shall be removed within
twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992
elections now assails the COMELEC's Resolution insofar as it prohibits the
posting of decals and stickers in "mobile" places like cars and other moving
vehicles. According to him such prohibition is violative of Section 82 of the
Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In
addition, the petitioner believes that with the ban on radio, television and
print political advertisements, he, being a neophyte in the field of politics
stands to suffer grave and irreparable injury with this prohibition. The
posting of decals and stickers on cars and other moving vehicles would be
his last medium to inform the electorate that he is a senatorial candidate in
the May 11, 1992 elections. Finally, the petitioner states that as of February
22, 1992 (the date of the petition) he has not received any notice from any
of the Election Registrars in the entire country as to the location of the
supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting
of decals and stickers on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null and void on
constitutional grounds.
First — the prohibition unduly infringes on the citizen's fundamental right of
free speech enshrined in the Constitution (Sec. 4, Article III). There is no
public interest substantial enough to warrant the kind of restriction involved
in this case.
There are various concepts surrounding the freedom of speech clause which
we have adopted as part and parcel of our own Bill of Rights provision on this
basic freedom.
All of the protections expressed in the Bill of Rights are important but we
have accorded to free speech the status of a preferred freedom. (Thomas v.
Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections,
36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact
that it is the matrix, the indispensable condition of nearly every other
freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134
SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill
of Rights and the right to free elections may be guaranteed if the freedom to
speak and to convince or persuade is denied and taken away.
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964];
cited in the concurring opinion of then Chief Justice Enrique Fernando in
Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many
restrictions will deny to people the robust, uninhibited, and wide open
debate, the generating of interest essential if our elections will truly be free,
clean and honest.
We have also ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right
of suffrage. (Mutuc v. Commission on Elections, supra)
The determination of the limits of the Government's power to regulate the
exercise by a citizen of his basic freedoms in order to promote fundamental
public interests or policy objectives is always a difficult and delicate task. The
so-called balancing of interests — individual freedom on one hand and
substantial public interests on the other — is made even more difficult in
election campaign cases because the Constitution also gives specific
authority to the Commission on Elections to supervise the conduct of free,
honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the
election period is granted regulatory powers vis-a-vis the conduct and
manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or
regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
communication or information, all grants special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its
subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable
equal rates therefore, for public information campaigns and forms among
candidates in connection with the object of holding free, orderly, honest,
peaceful and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent
case of National Press Club v. Commission on Elections (G.R. No. 102653,
March 5, 1991) and its companion cases underscores how difficult it is to
draw a dividing line between permissible regulation of election campaign
activities and indefensible repression committed in the name of free and
honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated
COMELEC regulation of campaigns through political advertisements. The
gray area is rather wide and we have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate
campaign activity is fairly limited and, in the opinion of some, too short, it
becomes obvious that unduly restrictive regulations may prove unfair to
affected parties and the electorate.
For persons who have to resort to judicial action to strike down requirements
which they deem inequitable or oppressive, a court case may prove to be a
hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk
impulse. By the time we revoke an unallowably restrictive regulation or
ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak by a
candidate or party and freedom to know on the part of the electorate are
invoked against actions intended for maintaining clean and free elections,
the police, local officials and COMELEC, should lean in favor of freedom. For
in the ultimate analysis, the freedom of the citizen and the State's power to
regulate are not antagonistic. There can be no free and honest elections if in
the efforts to maintain them, the freedom to speak and the right to know are
unduly curtailed.
There were a variety of opinions expressed in the National Press Club v.
Commission on Elections (supra) case but all of us were unanimous that
regulation of election activity has its limits. We examine the limits of
regulation and not the limits of free speech. The carefully worded opinion of
the Court, through Mr. Justice Feliciano, shows that regulation of election
campaign activity may not pass the test of validity if it is too general in its
terms or not limited in time and scope in its application, if it restricts one's
expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory
measure bears no clear and reasonable nexus with the constitutionally
sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with
some rather strong dissents, in National Press Club, we find the regulation in
the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.
A government regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City
Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118
[1984])
The posting of decals and stickers in mobile places like cars and other
moving vehicles does not endanger any substantial government interest.
There is no clear public interest threatened by such activity so as to justify
the curtailment of the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the danger be
patently clear and pressingly present but the evil sought to be avoided must
be so substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled:
The case confronts us again with the duty our system places on the Court to
say where the individual's freedom ends and the State's power begins.
Choice on that border, now as always delicate, is perhaps more so where the
usual presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedom
secured by the first Amendment . . . That priority gives these liberties a
sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard
governs the choice . . .
For these reasons any attempt to restrict those liberties must be justified by
clear public interest, threatened not doubtfully or remotely, but by clear and
present danger. The rational connection between the remedy provided and
the evil to be curbed, which in other context might support legislation
against attack on due process grounds, will not suffice. These rights rest on
firmer foundation. Accordingly, whatever occasion would restrain orderly
discussion and persuasion, at appropriate time and place, must have clear
support in public danger, actual or impending. Only the greatest abuses,
endangering permanent interests, give occasion for permissible limitation.
(Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned
prohibition is not so much that of the candidate or the political party. The
regulation strikes at the freedom of an individual to express his preference
and, by displaying it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car owner agrees to
have it placed on his private vehicle, the expression becomes a statement by
the owner, primarily his own and not of anybody else. If, in the National Press
Club case, the Court was careful to rule out restrictions on reporting by
newspapers or radio and television stations and commentators or columnists
as long as these are not correctly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person
who pastes a sticker or decal on his private property.
Second — the questioned prohibition premised on the statute and as
couched in the resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the
governmental purpose be legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court
invalidated an ordinance prohibiting all distribution of literature at any time
or place in Griffin, Georgia, without a license, pointing out that so broad an
interference was unnecessary to accomplish legitimate municipal aims. In
Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court
dealt with ordinances of four different municipalities which either banned or
imposed prior restraints upon the distribution of handbills. In holding the
ordinances invalid, the court noted that where legislative abridgment of
fundamental personal rights and liberties is asserted, "the courts should be
astute to examine the effect of the challenged legislation. Mere legislative
preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance
of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310
US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that
"[c]onduct remains subject to regulation for the protection of society," but
pointed out that in each case "the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected
freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]
The resolution prohibits the posting of decals and stickers not more than
eight and one-half (8-1/2) inches in width and fourteen (14) inches in length
in any place, including mobile places whether public or private except in
areas designated by the COMELEC. Verily, the restriction as to where the
decals and stickers should be posted is so broad that it encompasses even
the citizen's private property, which in this case is a privately-owned vehicle.
In consequence of this prohibition, another cardinal rule prescribed by the
Constitution would be violated. Section 1, Article III of the Bill of Rights
provides that no person shall be deprived of his property without due
process of law:
Property is more than the mere thing which a person owns, it includes the
right to acquire, use, and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution
protects these essential attributes of property. Holden v. Hardy, 169 U.S.
366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person's acquisitions without control
or diminution save by the law of the land. 1 Cooley's Bl. Com. 127.
(Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals
and stickers on cars and other moving vehicles, the candidate needs the
consent of the owner of the vehicle. In such a case, the prohibition would not
only deprive the owner who consents to such posting of the decals and
stickers the use of his property but more important, in the process, it would
deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to
receive it is so clearly vital to the preservation of a free society that, putting
aside reasonable police and health regulations of time and manner of
distribution, it must be fully preserved. The danger of distribution can so
easily be controlled by traditional legal methods leaving to each householder
the full right to decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden by the
constitution, the naked restriction of the dissemination of ideas." (Martin v.
City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but
when this right is joined by a "liberty" interest, the burden of justification on
the part of the Government must be exceptionally convincing and
irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits
the posting or display of election propaganda in any place, whether public or
private, except in the common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front door or on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation,
may do.
The provisions allowing regulation are so loosely worded that they include
the posting of decals or stickers in the privacy of one's living room or
bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446
[1935), "The delegated power is unconfined and vagrant . . . This is
delegation running riot. No such plentitude of power is susceptible of
transfer."
Third — the constitutional objective to give a rich candidate and a poor
candidate equal opportunity to inform the electorate as regards their
candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in
relation to Article IX (c) Section 4 of the Constitution, is not impaired by
posting decals and stickers on cars and other private vehicles. Compared to
the paramount interest of the State in guaranteeing freedom of expression,
any financial considerations behind the regulation are of marginal
significance.
Under section 26 Article II of the Constitution, "The State shall guarantee
equal access to opportunities for public service, . . . while under section 1,
Article XIII thereof "The Congress shall give highest priority to the enactment
of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas,
tricycles, pedicabs and other moving vehicles needs the consent of the
owner of the vehicle. Hence, the preference of the citizen becomes crucial in
this kind of election propaganda not the financial resources of the candidate.
Whether the candidate is rich and, therefore, can afford to doleout more
decals and stickers or poor and without the means to spread out the same
number of decals and stickers is not as important as the right of the owner to
freely express his choice and exercise his right of free speech. The owner
can even prepare his own decals or stickers for posting on his personal
property. To strike down this right and enjoin it is impermissible
encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places
whether public or private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by the Constitution:
. . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the
highest official or the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law, with priority
accorded to that which occupies the topmost rung in the legal hierarchy. The
three departments of government in the discharge of the functions with
which it is entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the enactment of
statutes must ever be on guard lest the restrictions on its authority, either
substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore or disregard what it ordains. In its task of applying the
law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of
judicial review to pass upon the validity of the acts of the coordinate
branches in the course of adjudication is a logical. corollary of this basic
principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition
of its being the supreme law. (Mutuc v. Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for
a more liberal interpretation of the freedom to speak and the right to know.
It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting
the unfettered interchange of ideas to bring about political change. (Cf. New
York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all
voters cannot name half or even two-thirds of the candidates running for
Senator. The public does not know who are aspiring to be elected to public
office.
There are many candidates whose names alone evoke qualifications,
platforms, programs and ideologies which the voter may accept or reject.
When a person attaches a sticker with such a candidate's name on his car
bumper, he is expressing more than the name; he is espousing ideas. Our
review of the validity of the challenged regulation includes its effects in
today's particular circumstances. We are constrained to rule against the
COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a)
of Resolution No. 2347 of the Commission on Elections providing that "decals
and stickers may be posted only in any of the authorized posting areas
provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.
Feliciano and Bellosillo, JJ., are on leave.
Separate Opinions
CRUZ, J.: concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in
National Press Club v. Commission on Elections. The stand taken by the
Court in the case at bar is a refreshing change from its usual deferential
attitude toward authoritarianism as a persistent vestige of the past regime.
After the disappointing decision in the ad ban case, I hope that the present
decision will guide us to the opposite direction, toward liberty and the full
recognition of freedom of expression. This decision is a small step in
rectifying the errors of the past, but it is a step just the same, and on the
right track this time.
Regarding the sticker ban, I think we are being swamped with regulations
that unduly obstruct the free flow of information so vital in an election
campaign. The Commission on Elections seems to be bent on muzzling the
candidates and imposing all manner of silly restraints on their efforts to
reach the electorate. Reaching the electorate is precisely the purpose of an
election campaign, but the Commission on Elections obviously believes that
the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues
and the qualifications of those vying for public office, what the Commission
on Elections should concentrate on is the education of the voters on the
proper exercise of their suffrages. This function is part of its constitutional
duty to supervise and regulate elections and to prevent them from
deteriorating into popularity contests where the victors are chosen on the
basis not of their platforms and competence but on their ability to sing or
dance, or play a musical instrument, or shoot a basketball, or crack a toilet
joke, or exhibit some such dubious talent irrelevant to their ability to
discharge a public office. The public service is threatened with mediocrity
and indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its time on
much trivialities as where posters shall be allowed and stickers should not be
attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified
professional entertainers whose only asset is the support of their drooling
fans, the demagogues who drumbeat to the clink of coins their professed
present virtues and past innocence, the opportunists for whom flexibility is a
means of political survival and even of financial gain, and, most dangerous of
all, the elements of our electorate who would, with their mindless ballots,
impose these office-seekers upon the nation. These are the evils the
Commission on Elections should try to correct, not the inconsequential and
inane question of where stickers should be stuck. I have nothing but praise
for the zeal of the Commission on Elections in pursuing the ideal of
democratic elections, but I am afraid it is barking up the wrong tree.
Separate Opinions
CRUZ, J., concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in
National Press Club v. Commission on Elections. The stand taken by the
Court in the case at bar is a refreshing change from its usual deferential
attitude toward authoritarianism as a persistent vestige of the past regime.
After the disappointing decision in the ad ban case, I hope that the present
decision will guide us to the opposite direction, toward liberty and the full
recognition of freedom of expression. This decision is a small step in
rectifying the errors of the past, but it is a step just the same, and on the
right track this time.
Regarding the sticker ban, I think we are being swamped with regulations
that unduly obstruct the free flow of information so vital in an election
campaign. The Commission on Elections seems to be bent on muzzling the
candidates and imposing all manner of silly restraints on their efforts to
reach the electorate. Reaching the electorate is precisely the purpose of an
election campaign, but the Commission on Elections obviously believes that
the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues
and the qualifications of those vying for public office, what the Commission
on Elections should concentrate on is the education of the voters on the
proper exercise of their suffrages. This function is part of its constitutional
duty to supervise and regulate elections and to prevent them from
deteriorating into popularity contests where the victors are chosen on the
basis not of their platforms and competence but on their ability to sing or
dance, or play a musical instrument, or shoot a basketball, or crack a toilet
joke, or exhibit some such dubious talent irrelevant to their ability to
discharge a public office. The public service is threatened with mediocrity
and indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its time on
much trivialities as where posters shall be allowed and stickers should not be
attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified
professional entertainers whose only asset is the support of their drooling
fans, the demagogues who drumbeat to the clink of coins their professed
present virtues and past innocence, the opportunists for whom flexibility is a
means of political survival and even of financial gain, and, most dangerous of
all, the elements of our electorate who would, with their mindless ballots,
impose these office-seekers upon the nation. These are the evils the
Commission on Elections should try to correct, not the inconsequential and
inane question of where stickers should be stuck. I have nothing but praise
for the zeal of the Commission on Elections in pursuing the ideal of
democratic elections, but I am afraid it is barking up the wrong tree.
Reyes vs Bagatsing 6/22/11 9:55 AM
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC),
petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for
petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some
aspects, is called upon to delineate the boundaries of the protected
area of the cognate rights to free speech and peaceable assembly, 1
against an alleged intrusion by respondent Mayor Ramon Bagatsing.
Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases
Coalition sought a permit from the City of Manila to hold a peaceful
march and rally on October 26, 1983 from 2:00 to 5:00 in the
afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, hardly two blocks away. Once there, and
in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after
the delivery of two brief speeches, a petition based on the
resolution adopted on the last day by the International Conference
for General Disbarmament, World Peace and the Removal of All
Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be
there so that it may be delivered to the United States Ambassador.
The march would be attended by the local and foreign participants
of such conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech and
assembly, all the necessary steps would be taken by it "to ensure a
peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ
of preliminary mandatory injunction on October 20, 1983 was due to
the fact that as of that date, petitioner had not been informed of
any action taken on his request on behalf of the organization to hold
a rally. On October 25, 1983, the answer of respondent Mayor was
filed on his behalf by Assistant Solicitor General Eduardo G.
Montenegro. 5 It turned out that on October 19, such permit was
denied. Petitioner was unaware of such a fact as the denial was sent
by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability
of issuing such permit at this time and at the place applied for." 6 To
be more specific, reference was made to persistent intelligence
reports affirm[ing] the plans of subversive/criminal elements to
infiltrate and/or disrupt any assembly or congregations where a
large number of people is expected to attend." 7 Respondent Mayor
suggested, however, in accordance with the recommendation of the
police authorities, that "a permit may be issued for the rally if it is
to be held at the Rizal Coliseum or any other enclosed area where
the safety of the participants themselves and the general public
may be ensured." 8
The oral argument was heard on October 25, 1983, the very same
day the answer was filed. The Court then deliberated on the matter.
That same afternoon, a minute resolution was issued by the Court
granting the mandatory injunction prayed for on the ground that
there was no showing of the existence of a clear and present danger
of a substantive evil that could justify the denial of a permit. On this
point, the Court was unanimous, but there was a dissent by Justice
Aquino on the ground that the holding of a rally in front of the US
Embassy would be violative of Ordinance No. 7295 of the City of
Manila. The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended opinion." 9 Hence
this detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the
exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of
speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances." 10
Free speech, like free press, may be Identified with the liberty to
discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous
restraint on the communication of views or subsequent liability
whether in libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a clear and
present danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right people to meet
peaceably for consultation and discussion of matters Of public
concern. 17 It is entitled to be accorded the utmost deference and
respect. It is hot to be limited, much less denied, except on a
showing, as 's the case with freedom of expression, of a clear and
present danger of a substantive evil that the state has a right to
prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had
occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. 19
To paraphrase opinion of Justice Rutledge speaking for the majority
of the American Supreme Court Thomas v. Collins, 20 it was not by
accident or coincidence that the right to freedom of speech and of
the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights,
while not Identical, are inseparable. the every case, therefo re there
is a limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of
this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent,
of a serious evil to public safety, public morals, public health, or any
other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression
and peaceable assembly better expressed than in this excerpt from
an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the
mind. It was in order to avert force and explosions due to
restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope. But utterance
in a context of violence can lose its significance as an appeal to
reason and become part of an instrument of force. Such utterance
was not meant to be sheltered by the Constitution." 22 What was
rightfully stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their-views,
even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that
there may be something worth hearing from the dissenter. That is
to ensure a true ferment of Ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. resort to force is
ruled out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine case,
penned in 1907 to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to
be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make a mockery of the
high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear
and present danger of a substantive evil, on the choice of Luneta as
the place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939
vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of
streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not, in
the guise of regulation, be abridged or denied. 26 The above excerpt
was quoted with approval in Primicias v. Fugoso. 27 Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas," 28 a
1915 decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only purpose
that it could serve. To repeat, there can be no valid reason why a
permit should not be granted for the or oposed march and rally
starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets,
to the gates of the US Embassy, hardly two block-away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of
Manila should grant a permit for a public meeting at Plaza Miranda
in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New
Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted
unless a special license therefor shall first be explained from the
selectmen of the town or from licensing committee,' was construed
by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license,
and held valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that 'a statute requiring
persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state
courts, the licensing authorities are strictly limited, in the issuance
of licenses, to a consideration of the time, place, and manner of the
parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or
refuse license, ... " 30 Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored, "Civil
liberties, as guaranteed by the Constitution, imply the existence of
an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil
liberties but rather as one of the means of safeguarding the good
order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances
would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to
Luneta, no question, as noted, would have arisen. So, too, if the
march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space
between the two gates of the United States Embassy at Roxas
Boulevard. That would be followed by the handing over of a petition
based on the resolution adopted at the closing session of the Anti-
Bases Coalition. The Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in 1961. It was
concurred in by the then Philippine Senate on May 3, 1965 and the
instrument of ratification was signed by the President on October
11, 1965, and was thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it was
binding on the Philippines. The second paragraph of the Article 22
reads: "2. The receiving State is under a special duty to take
appropriate steps to protect the premises of the mission against
any intrusion or damage and to prevent any disturbance of the
peace of the mission or impairment of its dignity. " 32 The
Constitution "adopts the generally accepted principles of
international law as part of the law of the land. ..." 33 To the extent
that the Vienna Convention is a restatement of the generally
accepted principles of international law, it should be a part of the
law of the land. 34 That being the case, if there were a clear and
present danger of any intrusion or damage, or disturbance of the
peace of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point
would be the Embassy. Moreover, respondent Mayor relied on
Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred
(500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires,
its invocation as a defense is understandable but not decisive, in
view of the primacy accorded the constitutional rights of free
speech and peaceable assembly. Even if shown then to be
applicable, that question the confronts this Court.
6. There is merit to the observation that except as to the novel
aspects of a litigation, the judgment must be confined within the
limits of previous decisions. The law declared on past occasions is,
on the whole, a safe guide, So it has been here. Hence, as noted, on
the afternoon of the hearing, October 25, 1983, this Court issued
the minute resolution granting the mandatory injunction allowing
the proposed march and rally scheduled for the next day. That
conclusion was inevitable ill the absence of a clear and present
danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional
rights of tree speech and peaceable assembly. These rights are
assured by our Constitution and the Universal Declaration of Human
Rights. 35 The participants to such assembly, composed primarily of
those in attendance at the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military
Bases would start from the Luneta. proceeding through Roxas
Boulevard to the gates of the United States Embassy located at the
same street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of access.
Nor is their use dependent on who is the applicant for the permit,
whether an individual or a group. If it were, then the freedom of
access becomes discriminatory access, giving rise to an equal
protection question. The principle under American doctrines was
given utterance by Chief Justice Hughes in these words: "The
question, if the rights of free speech and peaceable assembly are to
be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to The relations of the speakers,
but whether their utterances transcend the bounds of the freedom
of speech which the Constitution protects." 36 There could be danger
to public peace and safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful character. Even
then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted.
It is not, however, unfettered discretion. While prudence requires
that there be a realistic appraisal not of what may possibly occur
but of what may probably occur, given all the relevant
circumstances, still the assumption — especially so where the
assembly is scheduled for a specific public — place is that the
permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea that it
may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief that
Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino
(PMP.) v. Bagatsing, 39 called for application. While the General rule
is that a permit should recognize the right of the applicants to hold
their assembly at a public place of their choice, another place may
be designated by the licensing authority if it be shown that there is
a clear and present danger of a substantive evil if no such change
were made. In the Navarro and the Pagkakaisa decisions, this Court
was persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision reached
by the Court. The mere assertion that subversives may infiltrate the
ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of
General Narciso Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a position to
cope with such emergency should it arise That is to comply with its
duty to extend protection to the participants of such peaceable
assembly. Also from him came the commendable admission that
there were the least five previous demonstrations at the Bayview
hotel Area and Plaza Ferguson in front of the United States Embassy
where no untoward event occurred. It was made clear by petitioner,
through counsel, that no act offensive to the dignity of the United
States Mission in the Philippines would take place and that, as
mentioned at the outset of this opinion, "all the necessary steps
would be taken by it 'to ensure a peaceful march and rally.' " 40
Assistant Solicitor General Montenegro expressed the view that the
presence of policemen may in itself be a provocation. It is a
sufficient answer that they should stay at a discreet distance, but
ever ready and alert to cope with any contingency. There is no need
to repeat what was pointed out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable
assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a
private place, only the consent of the owner or the one entitled to
its legal possession is required. Such application should be filed well
ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or
to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded,
then, can have recourse to the proper judicial authority. Free
speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, — even
more so than on the other departments — rests the grave and
delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by
Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the extent that there may
be inconsistencies between this resolution and that of Navarro v.
Villegas, that case is pro tanto modified. So it was made clear in the
original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of
Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred
(500) feet from any foreign mission or chancery and for other
purposes. It is to be admitted that it finds support In the previously
quoted Article 22 of the Vienna Convention on Diplomatic Relations.
There was no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even if it could
be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of
his denial of the permit sought could still be challenged. It could be
argued that a case of unconstitutional application of such ordinance
to the exercise of the right of peaceable assembly presents itself.
As in this case there was no proof that the distance is less than 500
feet, the need to pass on that issue was obviated, Should it come,
then the qualification and observation of Justices Makasiar and
Plana certainly cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly
demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside
the denial or the modification of the permit sought and order the
respondent official, to grant it. Nonetheless, as there was urgency
in this case, the proposed march and rally being scheduled for the
next day after the hearing, this Court. in the exercise of its
conceded authority, granted the mandatory injunction in the
resolution of October 25, 1983. It may be noted that the peaceful
character of the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in other
assemblies held elsewhere. It is quite reassuring such that both on
the part of the national government and the citizens, reason and
moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No
costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and
Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of
Primicias vs. Fugoso 1 that "the right to freedom of speech and to
peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic
countries" and that the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the discretion, in
issuing the permit, to determine or specify the streets or public
places where the parade or procession may pass or the meeting
may be held." The most recent graphic demonstration of what this
great right of peaceful assembly and petition for redress of
grievances could accomplish was the civil rights march on
Washington twenty years ago under the late assassinated black
leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the
conscience of the nation," and awakened the conscience of millions
of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation
and discrimination against the American Negro.
The procedure for the securing of such permits for peaceable
assembly is succintly set forth in the summary given by the Court
Justice in paragraph 8 of the Court's opinion, with the injunction
that "the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do, precedence
and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights,
is therein restated in paragraph 1, thus: "The sole justification for a
limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public
interest. "
It bears emphasis that the burden to show the existence of grave
and imminent danger that would justify adverse action on the
application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the
existence of such clear and present danger. As stated in our
Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint or censorship that
the licensing authority does not rely solely on his own appraisal of
what public welfare, peace or safety may require. To justify such a
limitation there must be proof of such weight and sufficiency to
satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not
enough." As stated by Justice Brandeis in his concurring opinion in
Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burned women. It is
the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech
is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground
to believe that the evil to be prevented is a serious one * * *.
Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the
cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition
of these functions essential (for) effective democracy, unless the
evil apprehended is relatively serious. Prohibition of free speech
and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence
or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among
freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis
supplied)
The Court's opinion underscores that the exercise of the right is not
to be "abridged on the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their
right to peaceable assembly and freedom of expression," (at page
14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£
* * * Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen * * * to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied.
We think the court below was right in holding the ordinance quoted
in Note I void upon its face. It does not make comfort or
convenience in the use of streets or parks the standard of official
action. It enables the Director of Safety to refuse a permit on his
mere opinion that such refusal will prevent 'riots, disturbances or
disorderly assemblage. It can thus, as the record discloses, be made
the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the
duty to maintain order in connection with the exercise of the right.
(Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take
all the necessary measures to ensure a peaceful march and
assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly with the duty
of the police to extend protection to the participants "staying at a
discreet distance, but ever ready and alert to perform their duty."
But should any disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former Chief Justice
Ricardo Paras' injunction in his concurring opinion in Fugoso, citing
the 1907 case of U.S. vs. Apurado, 4 that such instances of
"disorderly conduct by individual members of a crowd (be not
seized) as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities" and render illusory the
right of peaceable assembly, thus: têñ.£îhqwâ£
It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a
rule, will the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize
upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the
right to assemble and to petition for redress of grievances would
become a delusion and snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would
expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on October 26, 1983
peaceably and without any untoward event or evil result, as pledged
by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any
incidents of disorder, this would in no way show the Court's
mandatory injunction to have been wrongfully issued. The salutary
desire on the part of respondent to prevent disorder cannot be
pursued by the unjustified denial and suppression of the people's
basic rights, which would thereby turn out to be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the Philippine
Constitution — particularly the Bill of Rights — should prevail over
the Vienna Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the Chief Justice is like
bringing coal to Newcastle, I just want to state for the record that I
voted for the issuance ex-parte of a preliminary mandatory
injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of the distinguished
Chief Justice. I would like however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which has been invoked by
the respondent.
The main opinion yields the implication that a rally or demonstration
made within 500 feet from the chancery of a foreign embassy would
be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to
implement a treaty obligation of the Philippines under the 1961
Vienna Convention on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to
the constitution, it cannot be validly invoked whenever its
application would collide with a constitutionally guaranteed right
such as freedom of assembly and/or expression, as in the case at
bar, regardless of whether the chancery of any foreign embassy is
beyond or within 500 feet from the situs of the rally or
demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the
rally in front of the US Embassy violates Ordinance No. 7295 of the
City of Manila.
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of
Primicias vs. Fugoso 1 that "the right to freedom of speech and to
peacefully assemble and petition the government for redress of
grievances are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic
countries" and that the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the discretion, in
issuing the permit, to determine or specify the streets or public
places where the parade or procession may pass or the meeting
may be held." The most recent graphic demonstration of what this
great right of peaceful assembly and petition for redress of
grievances could accomplish was the civil rights march on
Washington twenty years ago under the late assassinated black
leader Martin Luther King, Jr. (whose birthday has now been
declared an American national holiday) which subpoenaed the
conscience of the nation," and awakened the conscience of millions
of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation
and discrimination against the American Negro.
The procedure for the securing of such permits for peaceable
assembly is succintly set forth in the summary given by the Court
Justice in paragraph 8 of the Court's opinion, with the injunction
that "the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do, precedence
and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights,
is therein restated in paragraph 1, thus: "The sole justification for a
limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public
interest. "
It bears emphasis that the burden to show the existence of grave
and imminent danger that would justify adverse action on the
application lies on the mayor as licensing authority. There must be
objective and convincing, not subjective or conjectural proof of the
existence of such clear and present danger. As stated in our
Resolution of October 25, 1983, which granted the mandatory
injunction as prayed for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint or censorship that
the licensing authority does not rely solely on his own appraisal of
what public welfare, peace or safety may require. To justify such a
limitation there must be proof of such weight and sufficiency to
satisfy the clear and present danger test. The possibility that
subversives may infiltrate the ranks of the demonstrators is not
enough." As stated by Justice Brandeis in his concurring opinion in
Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burned women. It is
the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech
is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable ground
to believe that the evil to be prevented is a serious one * * *.
Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the
cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition
of these functions essential (for) effective democracy, unless the
evil apprehended is relatively serious. Prohibition of free speech
and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a
society. * * * The fact that speech is likely to result in some violence
or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among
freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not
abridgment of the rights of free speech and assembly. (Emphasis
supplied)
The Court's opinion underscores that the exercise of the right is not
to be "abridged on the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of the city authorities
to provide the proper police protection to those exercising their
right to peaceable assembly and freedom of expression," (at page
14) The U.S. Supreme Court's pronouncement in Hague vs.
Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£
* * * Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from
ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen * * * to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied.
We think the court below was right in holding the ordinance quoted
in Note I void upon its face. It does not make comfort or
convenience in the use of streets or parks the standard of official
action. It enables the Director of Safety to refuse a permit on his
mere opinion that such refusal will prevent 'riots, disturbances or
disorderly assemblage. It can thus, as the record discloses, be made
the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the
duty to maintain order in connection with the exercise of the right.
(Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take
all the necessary measures to ensure a peaceful march and
assembly and to avoid the possibility of infiltrators and
troublemakers disrupting the same, concommitantly with the duty
of the police to extend protection to the participants "staying at a
discreet distance, but ever ready and alert to perform their duty."
But should any disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former Chief Justice
Ricardo Paras' injunction in his concurring opinion in Fugoso, citing
the 1907 case of U.S. vs. Apurado, 4 that such instances of
"disorderly conduct by individual members of a crowd (be not
seized) as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities" and render illusory the
right of peaceable assembly, thus: têñ.£îhqwâ£
It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a
rule, will the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize
upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultous rising against the authorities, 'then the
right to assemble and to petition for redress of grievances would
become a delusion and snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would
expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on October 26, 1983
peaceably and without any untoward event or evil result, as pledged
by the organizers (like at least five previous peaceful
demonstrations in the area). However, even if there had been any
incidents of disorder, this would in no way show the Court's
mandatory injunction to have been wrongfully issued. The salutary
desire on the part of respondent to prevent disorder cannot be
pursued by the unjustified denial and suppression of the people's
basic rights, which would thereby turn out to be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the Philippine
Constitution — particularly the Bill of Rights — should prevail over
the Vienna Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the Chief Justice is like
bringing coal to Newcastle, I just want to state for the record that I
voted for the issuance ex-parte of a preliminary mandatory
injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of the distinguished
Chief Justice. I would like however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which has been invoked by
the respondent.
The main opinion yields the implication that a rally or demonstration
made within 500 feet from the chancery of a foreign embassy would
be banned for coming within the terms of the prohibition of the
cited Ordinance which was adopted, so it is said, precisely to
implement a treaty obligation of the Philippines under the 1961
Vienna Convention on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to
the constitution, it cannot be validly invoked whenever its
application would collide with a constitutionally guaranteed right
such as freedom of assembly and/or expression, as in the case at
bar, regardless of whether the chancery of any foreign embassy is
beyond or within 500 feet from the situs of the rally or
demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the
rally in front of the US Embassy violates Ordinance No. 7295 of the
City of Manila.
Reyes v Bagatsing 125 SCRA 553 (1983)
Facts: Petitioner sought a permit from the City of Manila to hold a peaceful
march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta to the gates of the United States Embassy. Once
there, and in an open space of public property, a short program would be
held. The march would be attended by the local and foreign participants of
such conference. That would be followed by the handing over of a petition
based on the resolution adopted at the closing session of the Anti-Bases
Coalition. There was likewise an assurance in the petition that in the exercise
of the constitutional rights to free speech and assembly, all the necessary
steps would be taken by it "to ensure a peaceful march and rally. However
the request was denied. Reference was made to persistent intelligence
reports affirming the plans of subversive/criminal elements to infiltrate or
disrupt any assembly or congregations where a large number of people is
expected to attend. Respondent suggested that a permit may be issued if it
is to be held at the Rizal Coliseum or any other enclosed area where the
safety of the participants themselves and the general public may be
ensured. An oral argument was heard and the mandatory injunction was
granted on the ground that there was no showing of the existence of a clear
and present danger of a substantive evil that could justify the denial of a
permit. However Justice Aquino dissented that the rally is violative of
Ordinance No. 7295 of the City of Manila prohibiting the holding of rallies
within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Hence the Court resolves.
Issue: Whether or Not the freedom of expression and the right to peaceably
assemble violated.
Held: Yes. The invocation of the right to freedom of peaceable assembly
carries with it the implication that the right to free speech has likewise been
disregarded. It is settled law that as to public places, especially so as to
parks and streets, there is freedom of access. Nor is their use dependent on
who is the applicant for the permit, whether an individual or a group. There
can be no legal objection, absent the existence of a clear and present danger
of a substantive evil, on the choice of Luneta as the place where the peace
rally would start. Time immemorial Luneta has been used for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions.
Such use of the public places has from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.
With regard to the ordinance, there was no showing that there was violation
and even if it could be shown that such a condition is satisfied it does not
follow that respondent could legally act the way he did. The validity of his
denial of the permit sought could still be challenged.
A summary of the application for permit for rally: The applicants for a permit
to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the
clear and present danger test be the standard for the decision reached.
Notice is given to applicants for the denial.
Viva vs Webb 6/22/11 9:55 AM
[G.R. No. 123881. March 13, 1997]
VIVA PRODUCTIONS, INC., petitioner, vs. COURT OF APPEALS AND HUBERT
J.P. WEBB, respondents.
D E C I S I O N
MELO, J.:
Assailed in the petition before us are the decision and resolution of
respondent Court of Appeals sustaining both the order of the Regional Trial
Court of the National Capital Judicial Region (Parañaque, Branch 274 —
hereinafter referred to as the Parañaque court) restraining "the exhibition of
the movie 'The Jessica Alfaro Story' at its scheduled premiere showing at the
New Frontier Theater on September 11, 1995 at 7:30 in the evening and at
its regular public exhibition beginning September 13, 1995, as well as to
cease and desist from promoting and marketing of the said movie" (Order; p.
96, Rollo); and the order of the Regional Trial Court also of the National
Capital Judicial Region (Makati, Branch 58 — hereinafter referred to as the
Makati court) issuing a writ of preliminary injunction "enjoining petitioner
from further proceeding, engaging, using or implementing the promotional,
advertising and marketing programs for the movie entitled 'The Jessica
Alfaro Story' and from showing or causing the same to be shown or exhibited
in all theaters in the entire country UNTIL after the final termination and
logical conclusion of the trial in the criminal action now pending before the
Parañaque Regional Trial Court" (Order; p. 299, Rollo).
Without filing any motion for reconsideration with the two regional trial
courts, petitioner elevated the matter to respondent Court of Appeals via a
petition for certiorari, with an urgent prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction, thereafter docketed
and consolidated as C.A. G.R. No. SP-38407 and SP-38408. The factual
antecedents were summarized by respondent court in this manner:
Both petitions are inexorably linked to the Rape with Homicide case, in
connection with what is now known as the "Vizconde Massacre". On June 19,
1995, after the dismissal of two (2) sets of suspects, another group of nine
(9), private respondent Hubert J.P. Webb included were charged by the
National Bureau of Investigation (NBI) with the crime of Rape With Homicide,
on the strength of a sworn statement of Ma. Jessica M. Alfaro, which
complaint was docketed as I.S. No. 95- 402 before the Department of Justice.
It is of public knowledge, nay beyond cavil, that the personalities involved in
this development of the Vizconde Massacre engendered a media frenzy. For
at least two successive months, all sorts of news and information about the
case, the suspects and witnesses occupied the front pages of newspapers.
Focus of attention was Ma. Jessica M. Alfaro (Alfaro, for short), alluded to as
the NBI star witness. Offered a movie contract by Viva Productions, Inc. for
the filming of her life story, she inked with the latter the said movie
contract while the said case (I.S. 95-402) was under investigation by
the Department of Justice.
On August 10, 1995, after the conclusion of preliminary investigation before
the Department of Justice, an Information for Rape With Homicide was filed
against Hubert J.P. Webb and eight (8) others, docketed as Criminal Case No.
95-404 before the Regional Trial Court of Parañaque, Branch 274.
On August 25, 1995, the private respondent sent separate letters to Viva
Productions, Inc. and Alfaro, warning them that the projected showing of
subject movie on the life story of Alfaro would violate the sub judice rule, and
his (Hubert J.P. Webb's) constitutional rights as an accused in said criminal
case. But such letters from private respondent notwithstanding, petitioner
persisted in promoting, advertising and marketing "The Jessica Alfaro Story"
in the print and broadcast media and, even on billboards. Premier showing of
the movie in question was then scheduled for September 11, 1995, at the
New Frontier Theater, with regular public exhibition thereof set for
September 13, 1995, in some sixty (60) theaters.
And so, on September 6, 1995, Hubert J.P. Webb, the herein private
respondent, filed a Petition for Contempt in the same Criminal Case No. 95-
404; complaining that the acts of petitioner and Alfaro concerning "The
Jessica Alfaro Story" movie were contumacious, within the contemplation of
Section 3, Rule 71 of the Revised Rules of Court. Following the full day of
hearing on September 8, 1995, and viewing of the controversial movie itself,
the respondent Regional Trial Court of Parañaque came out with its Cease
and Desist Order aforequoted.
On September 8, 1995, respondent Hubert J.P. Webb instituted a case for
Injunction With Damages, docketed as Civil Case No. 951365 before the
Regional Trial Court of Makati City, Branch 58, which court issued, ex parte,
before the matter could be heard on notice, the Temporary Restraining Order
under attack.
(pp. 61-62, Rollo.)
On December 13, 1995, respondent court dismissed the consolidated
petitions.
Following the denial of petitioner's motion for reconsideration, the instant
petition was filed wherein the following issues are ventilated:
I
WHETHER OR NOT THE PARAÑAQUE COURT CAN TOTALLY DISREGARD AND
INDISCRIMINATELY CURTAIL PETITIONER'S CONSTITUTIONAL RIGHT TO
FREEDOM OF EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE OF
A CLEAR AND PRESENT DANGER.
II
WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE
COGNIZANCE OF THE INJUNCTION CASE FILED BEFORE IT WHICH IS
IDENTICAL TO THE CASE PENDING BEFORE THE PARAÑAQUE COURT WHICH
HAS ALREADY ACQUIRED JURISDICTION OVER THE ACT COMPLAINED OF.
III
WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING BY
FILING TWO (2) CASES WITH EXACTLY THE SAME FACTUAL SET-UP, ISSUES
INVOLVED AND RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT COURTS OF
COORDINATE JURISDICTION.
(p. 20, Rollo.)
We rule to grant the petition, reversing and setting aside the orders of
respondent Court of Appeals, thus annulling and setting aside the orders of
the Makati court and lifting the restraining order of the Parañaque court for
forum shopping.
The key issue to be resolved is whether or not respondent court ruled
correctly in upholding the jurisdiction of the Makati court to take cognizance
of the civil action for injunction filed before it despite the fact that the same
relief, insofar as preventing petitioner from showing of the movie is
concerned, had also been sought by the same private respondent before the
Parañaque court in proceedings for contempt of court. Corollarily, it may be
asked if private respondent and/or his counsel can be held guilty of forum
shopping.
Petitioner contends that the Makati court has no jurisdiction to take
cognizance of the action for damages because the same had been impliedly
instituted in the contempt proceedings before the Parañaque court, which
after acquiring and exercising jurisdiction over the case, excludes all other
courts of concurrent jurisdiction from taking cognizance of the same.
Moreover, citing Circular No. 28-91, petitioner accuses private respondent of
forum shopping.
Private respondent, on the other hand, posits that the Makati court's
jurisdiction cannot be validly and legally disputed for it is invested with
authority, by express provision of law, to exercise jurisdiction in the action
for damages, as may be determined by the allegations in the complaint. The
temporary restraining order and writ of injunction issued by the Makati court
are mere provisional remedies expressly sanctioned under Rule 58 of the
Revised Rules of Court. He also maintains that there is no forum shopping
because there is no identity of causes of action. Besides, the action for
damages before the Makati court cannot be deemed instituted in the
contempt proceedings before the Parañaque court because the rightful
parties therein are only the court itself, as the offended party, and petitioner
and witness Jessica Alfaro, as accused.
We find the shrewd and astute maneuverings of private respondent ill-
advised. It will not escape anybody's notice that the act of filing the
supposed action for injunction with damages with the Makati court, albeit a
separate and distinct action from the contempt proceedings then pending
before the Parañaque court, is obviously and solely intended to obtain the
preliminary relief of injunction so as to prevent petitioner from exhibiting the
movie on its premiere showing on September 11, 1995 and on its regular
showing beginning September 13, 1995. The alleged relief for damages
becomes a mere subterfuge to camouflage private respondent's real intent
and to feign the semblance of a separate and distinct action from the
contempt proceedings already filed and on-going with the Parañaque court.
Significantly, the primordial issue involved in the Makati court and the
Parañaque court is one and the same — whether or not the showing of the
movie "The Jessica Alfaro Story" violates the sub-judice rule. Should the
Parañaque court find so, it would have no alternative but to enjoin petitioner
from proceeding with the intended contumacious act lest it may be cited for
contempt. In the case of the Makati court, if it finds such violation, it will
have to enjoin petitioner from proceeding with the prejudicial act lest it may
be held liable for damages.
The query posed before respondent court, simply stated, is whether or not
the Parañaque court and the Makati court, obviously having concurrent
jurisdiction over the subject matter, can both take cognizance of the two
actions and resolve the same identical issue on the alleged violation of the
sub judice rule. Respondent court erred in ruling in the affirmative. This is
the very evil sought to be avoided by this Court in issuing Circular No. 28-91
which pertinently reads:
The attention of the Court has been called to the filing of multiple petitions
and complaints involving the same issues in the Supreme Court, the Court of
Appeals or different Divisions thereof, or any other tribunal or agency, with
the result that said tribunals or agency have to resolve the same
issues. (Emphasis supplied.)
On February 8, 1994, this was magnified through Administrative Circular No.
04-94, effective on April 1, 1994, to include all courts and agencies other
than the Supreme Court and the Court of Appeals, to prevent forum shopping
or the multiple filing of such pleadings even at that level. Sanctions for
violation thereof are expressly stated as follows:
(2) Any violation of this Circular shall be a cause for the dismissal of the
complaint, petition, application or other initiatory pleading, upon motion and
after hearing. However, any clearly willful and deliberate forum shopping by
any party and his counsel through the filing of multiple complaints or other
initiatory pleadings to obtain favorable action shall be a ground for summary
dismissal thereof and shall constitute direct contempt of court. Furthermore,
the submission of a false certification or non-compliance with the
undertaking therein, as provided in Paragraph 1 hereof, shall constitute
indirect contempt of court, without prejudice to disciplinary proceedings
against counsel and the filing of a criminal action against the guilty party.
Private respondent's intention to engage in forum shopping becomes
manifest with undoubted clarity upon the following considerations. Notably, if
not only to ensure the issuance of an injunctive relief, the significance of the
action for damages before the Makati court would be nil. What damages
against private respondent would there be to speak about if the Parañaque
court already enjoins the performance of the very same act complained of in
the Makati court? Evidently, the action for damages is premature if not for
the preliminary injunctive relief sought. Thus, we find grave abuse of
discretion on the part of the Makati court, being a mere co-equal of the
Parañaque court, in not giving due deference to the latter before which the
issue of the alleged violation of the sub-judice rule had already been raised
and submitted. In such instance, the Makati court, if it was wary of
dismissing the action outrightly under Administrative Circular No. 04-94,
should have, at least, ordered the consolidation of its case with that of the
Parañaque court, which had first acquired jurisdiction over the related case
in accordance with Rule 31 of the Revised Rules of Court (Superlines Trans.
Co. vs. Victor, et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap, 126
SCRA 500 [1983]), or it should have suspended the proceedings until the
Parañaque court may have ruled on the issue (Salazar vs. CFI of Laguna, 64
Phil. 785 [1937]).
Ordinarily, where a litigant sues the same party against whom another action
or actions for the alleged violation of the same right and the enforcement of
the same relief or reliefs is or are still pending, any one action may be
dismissed on the ground of litis pendentia and a final judgment in any one
case would constitute res judicata on the other. In either instance, there is a
clear and undeniable case of forum shopping, another ground for the
summary dismissal of both actions, and at the same time an act of direct
contempt of court, which includes a possible criminal prosecution and
disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA
34 [1986]).
In First Philippine International Bank vs. Court of Appeals (252 SCRA 259
[1996]), this Court, through the same herein Division, per Justice
Panganiban, found therein petitioner bank guilty of forum shopping because
—
. . . the objective or the relief being sought, though worded differently, is the
same, namely, to enable the petitioner Bank to escape from the obligation to
sell the property to respondent. In Danville Maritime vs. Commission on
Audit, this Court ruled that the filing by any party of two apparently different
actions, but with the same objective, constituted forum shopping:
"In the attempt to make the two actions appear to be different, petitioner
impleaded different respondents therein — PNOC in the case before the
lower court and the COA in the case before this Court and sought what
seems to be different reliefs. Petitioner asks this Court to set aside the
questioned letter-directive of the COA dated October 10, 1988 and to direct
said body to approve the Memorandum of Agreement entered into by and
between the PNOC and petitioner, while in the complaint before the lower
court petitioner seeks to enjoin the PNOC from conducting a rebidding and
from selling to other parties the vessel "T/T Andres Bonifacio," and for an
extension of time for it to comply with the paragraph 1 of the memorandum
of agreement and damages. One can see that although the relief prayed for
in the two (2) actions are ostensibly different, the ultimate objective in both
actions is the same, that is, the approval of the sale of vessel in favor of
petitioner, and to overturn the letter directive of the COA of October 10,
1988 disapproving the sale."
(p. 285)
In Palm Avenue Realty Development Corporation vs. PCGG (153 SCRA 579
[1987]), we have these words from then Justice, now Chief Justice Narvasa:
. . . the filing by the petitioners of the instant special civil action for certiorari
and prohibition in this Court despite the pendency of their action in the
Makati Regional Trial Court, is a species of forum shopping. Both actions
unquestionably involve the same transactions, the same essential facts and
circumstances. The petitioners' claim of absence of identity simply because
the PCGG had not been impleaded in the RTC suit, and the suit did not
involve certain acts which transpired after its commencement, is specious. In
the RTC action, as in the action before this Court, the validity of the contract
to purchase and sell of September 1, 1986, i.e., whether or not it had been
efficaciously rescinded, and the propriety of implementing the same . . .
were the basic issues. So, too, the relief was the same: the prevention of
such implementation and/or the restoration of the status quo ante. When the
acts sought to be restrained took place anyway despite the issuance by the
Trial Court of a temporary restraining order, the RTC suit did not become
functus officio. It remained an effective vehicle for obtention of relief; and
petitioners' remedy in the premises was plain and patent; the filing of an
amended and supplemental pleading in the RTC suit, so as to include the
PCGG as defendant and seek nullification of the acts sought to be enjoined
but nonetheless done. The remedy was certainly not the institution of
another action in another forum based on essentially the same facts. The
adoption of this latter recourse renders the petitioner amenable to
disciplinary action and both their actions, in this Court as well as in the Court
a quo dismissible.
(pp. 591-592)
Thus, while we might admit that the causes of action before the Makati court
and the Parañaque court are distinct, and that private respondent cannot
seek civil indemnity in the contempt proceedings, the same being in the
nature of criminal contempt, we nonetheless cannot ignore private
respondent's intention of seeking exactly identical reliefs when it sought the
preliminary relief of injunction in the Makati court. As earlier indicated, had
private respondent been completely in good faith, there would have been no
hindrance in filing the action for damages with the regional trial court of
Parañaque and having it consolidated with the contempt proceedings before
Branch 274, so that the same issue on the alleged violation of the sub judice
rule will not have to be passed upon twice, and there would be no possibility
of having two courts of concurrent jurisdiction making two conflicting
resolutions.
Yet from another angle, it may be said that when the Parañaque court
acquired jurisdiction over the said issue, it excluded all other courts of
concurrent jurisdiction from acquiring jurisdiction over the same. To hold
otherwise would be to risk instances where courts of concurrent jurisdiction
might have conflicting orders. This will create havoc and result in an
extremely disordered administration of justice. Therefore, even on the
assumption that the Makati court may acquire jurisdiction over the subject
matter of the action for damages, without prejudice to the application of
Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction
over the issue of whether or not petitioner has violated the sub judice rule.
At best, the Makati court may hear the case only with respect to the alleged
injury suffered by private respondent after the Parañaque court shall have
ruled favorably on the said issue.
In fine, applying the sanction against forum shopping under Administrative
Circular No. 04-94, the action filed by private respondent with the Makati
court, may be ordered summarily dismissed. Considering the nature and
purpose of contempt proceedings before the Parañaque court and the public
policy of protecting the integrity of the court, we reserve the imposition of a
similar sanction to dismiss the same and leave that matter to the discretion
of the presiding judge concerned, although it is worthy to stress that insofar
as injunctive relief against the showing of the movie before the Parañaque
court is concerned, we resolved to also dismiss the same by reason of forum
shopping. The sanction of twin dismissal under Buan vs. Lopez is applicable.
This, however, is without prejudice to the other aspects of the contempt
proceedings which may still be pending before the Parañaque court.
In view of the foregoing disposition, we find no further need to resolve the
issue of whether or not there was valid and lawful denial by both lower
courts of petitioner's right to free speech and expression. Suffice it to
mention, however, that the Court takes note of the rather unreasonable
period that had elapsed from the time of the issuance of the restraining
order by the Parañaque court up to the writing of this decision. The Court
also notes that the order of the said court specifically failed to lay down any
factual basis constituting a clear and present danger which will justify prior
restraint of the constitutionally protected freedom of speech and expression
save its plea for time to hear and resolve the issues raised in the petition for
contempt.
WHEREFORE, the assailed decision and order of respondent court are
hereby SET ASIDE, and a new one entered declaring null and void all orders
of Branch 58 of the Regional Trial Court of the National Capital Judicial
Region stationed in Makati City in its Civil Case No. 95-1365 and forthwith
dismissing said case, and declaring the order of the Regional Trial Court of
the same National Capital Judicial Region stationed in Parañaque (Branch
274), functus officio insofar as it restrains the public showing of the movie
"The Jessica Alfaro Story."
Private respondent and his counsel are admonished to refrain from repeating
a similar act of forum shopping, with the stern warning that any repetition of
similar acts will be dealt with more severely.
SO ORDERED.
Iglesia vs Court of appeals 6/22/11 9:55 AM
EN BANC
[G.R. No. 119673. July 26, 1996]
IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF
APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION and HONORABLE HENRIETTA S. MENDEZ, respondents.
D E C I S I O N
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of
the respondent Court of Appeals affirming the action of the
respondent Board of Review for Motion Pictures and Television
which x-rated the TV Program “Ang Iglesia ni Cristo.”
Petitioner Iglesia ni Cristo, a duly organized religious organization,
has a television program entitled “Ang Iglesia ni Cristo” aired on
Channel 2 every Saturday and on Channel 13 every Sunday. The
program presents and propagates petitioner’s religious beliefs,
doctrines and practices often times in comparative studies with
other religions.
Sometime in the months of September, October and November
1992, petitioner submitted to the respondent Board of Review for
Motion Pictures and Television the VTR tapes of its TV program
Series Nos. 116, 119, 121 and 128. The Board classified the series
as “X” or not for public viewing on the ground that they “offend and
constitute an attack against other religions which is expressly
prohibited by law.”
Petitioner pursued two (2) courses of action against the respondent
Board. On November 28, 1992, it appealed to the Office of the
President the classification of its TV Series No. 128. It succeeded in
its appeal for on December 18, 1992, the Office of the President
reversed the decision of the respondent Board. Forthwith, the
Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent
Board Civil Case No. Q-92-14280, with the RTC, NCR, Quezon City.i[1]
Petitioner alleged that the respondent Board acted without
jurisdiction or with grave abuse of discretion in requiring petitioner
to submit the VTR tapes of its TV program and in x-rating them. It
cited its TV Program Series Nos. 115, 119, 121 and 128. In their
Answer, respondent Board invoked its power under P.D. No. 1986 in
relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner’s
prayer for a writ of preliminary injunction. The parties orally argued
and then marked their documentary evidence. Petitioner submitted
the following as its exhibits, viz.:
(1) Exhibit “A”, respondent Board’s Voting Slip for Television
showing its September 9, 1992 action on petitioner’s Series No. 115
as follows:ii[2]
REMARKS:
There are some inconsistencies in the particular program as it is
very surprising for this program to show series of Catholic
ceremonies and also some religious sects and using it in their
discussion about the bible. There are remarks which are direct
criticism which affect other religions.
Need more opinions for this particular program. Please subject to
more opinions.
(2) Exhibit “A-1”, respondent Board’s Voting Slip for Television
showing its September 11, 1992 subsequent action on petitioner’s
Series No. 115 as follows:iii[3]
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own
faith and beliefs and avoid attacks on other faith.
(3) Exhibit “B”, respondent Board’s Voting Slip for Television
showing its October 9, 1992 action on petitioner’s Series No. 119, as
follows:iv[4]
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and
says that our (Catholic) veneration of the Virgin Mary is not to be
condoned because nowhere it is found in the bible that we should
do so.
This is intolerance and robs off all sects of freedom of choice,
worship and decision.
(4) Exhibit “C”, respondent Board’s Voting Slip for Television
showing its October 20, 1992 action on petitioner’s Series No. 121
as follows:v[5]
REMARKS:
I refuse to approve the telecast of this episode for reasons of the
attacks, they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that
they are right and the rest are wrong, which they clearly present in
this episode.
(5) Exhibit “D”, respondent Board’s Voting Slip for Television
showing its November 20, 1992 action on petitioner’s Series No. 128
as follows:vi[6]
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic
and Protestant’s beliefs.
We suggest a second review.
(6) Exhibits “E”, “E-1”, petitioner’s block time contract with ABS-
CBN Broadcasting Corporation dated September 1, 1992.vii[7]
(7) Exhibit “F”, petitioner’s Airtime Contract with Island
Broadcasting Corporation.viii[8]
(8) Exhibit “G”, letter dated December 18, 1992 of former
Executive Secretary Edelmiro A. Amante, Sr., addressed to Henrietta
S. Mendez reversing the decision of the respondent Board which x-
rated the showing of petitioner’s Series No. 129. The letter reads in
part:
“xxx xxx xxx
The television episode in question is protected by the constitutional
guarantee of free speech and expression under Article III, Section 4
of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well
as studied the passages found by MTRCB to be objectionable and we
find no indication that the episode poses any clear and present
danger sufficient to limit the said constitutional guarantee.”
(9) Exhibits “H”, “H-1”, letter dated November 26, 1992 of Teofilo
C. Ramos, Sr., addressed to President Fidel V. Ramos appealing the
action of the respondent Board x-rating petitioner’s Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit “1”, Permit Certificate for Television Exhibition No.
15181 dated December 18, 1992 allowing the showing of Series No.
128 under parental guidance.
(2) Exhibit “2”, which is Exhibit “G” of petitioner.
(3) Exhibit “3”, letter dated October 12, 1992 of Henrietta S.
Mendez, addressed to the Christian Era Broadcasting Service which
reads in part:
x x x
In the matter of your television show “Ang Iglesia ni Cristo” Series
No. 119, please be informed that the Board was constrained to deny
your show a permit to exhibit. The material involved constitute an
attack against another religion which is expressly prohibited by law.
Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a
writ of preliminary injunction on petitioner’s bond of P10,000.00.
The trial court set the pre-trial of the case and the parties
submitted their pre-trial briefs.ix[9] The pre-trial briefs show that
the parties’ evidence is basically the evidence they submitted in the
hearing of the issue of preliminary injunction. The trial of the case
was set and reset several times as the parties tried to reach an
amicable accord. Their efforts failed and the records show that
after submission of memoranda, the trial court rendered a
Judgment,x[10] on December 15, 1993, the dispositive portion of
which reads:
“x x x
WHEREFORE, judgment is hereby rendered ordering respondent
Board of Review for Motion Pictures and Television (BRMPT) to
grant petitioner Iglesia ni Cristo the necessary permit for all the
series of ‘Ang Iglesia ni Cristo’ program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from
offending and attacking other existing religions in showing ‘Ang
Iglesia ni Cristo’ program.
SO ORDERED.”
Petitioner moved for reconsiderationxi[11] praying: (a) for the
deletion of the second paragraph of the dispositive portion of the
Decision, and (b) for the Board to be perpetually enjoined from
requiring petitioner to submit for review the tapes of its program.
The respondent Board opposed the motion.xii[12] On March 7, 1993,
the trial court granted petitioner’s Motion for Reconsideration. It
ordered:xiii[13]
“x x x
WHEREFORE, the Motion for Reconsideration is granted. The second
portion of the Court’s Order dated December 15, 1993, directing
petitioner to refrain from offending and attacking other existing
religions in showing ‘Ang Iglesia ni Cristo’ program is hereby
deleted and set aside. Respondents are further prohibited from
requiring petitioner Iglesia ni Cristo to submit for review VTR tapes
of its religious program ‘Ang Iglesia ni Cristo.’”
Respondent Board appealed to the Court of Appeals after its motion
for reconsideration was denied.xiv[14]
On March 5, 1995, the respondent Court of Appealsxv[15] reversed
the trial court. It ruled that: (1) the respondent board has
jurisdiction and power to review the TV program “Ang Iglesia ni
Cristo,” and (2) the respondent Board did not act with grave abuse
of discretion when it denied permit for the exhibition on TV of the
three series of “Ang Iglesia ni Cristo” on the ground that the
materials constitute an attack against another religion. It also
found the series “indecent, contrary to law and contrary to good
customs.”
In this petition for review on certiorari under Rule 45, petitioner
raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT ‘ANG IGLESIA NI CRISTO’ PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE
AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM,
THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS SUBJECT TO THE POLICE
POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A
CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR
RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE ‘ANG IGLESIA NI CRISTO,’ A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD
CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioner’s TV program
“Ang Iglesia ni Cristo,” and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the
airing of petitioner’s religious program, series Nos. 115, 119 and
121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good
customs.
The first issue can be resolved by examining the powers of the
Board under P.D. No. 1986. Its Section 3 pertinently provides:
“Sec. 3 Powers and Functions. — The BOARD shall have the
following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein
defined, television programs, including publicity materials such as
advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical
distribution for television broadcast or for general viewing,
imported or produced in the Philippines and in the latter case,
whether they be for local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale,
lease, exhibition and/or television broadcast of the motion pictures,
television programs and publicity materials, subject of the
preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable
for being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission
of violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or
sedition against the State, or otherwise threaten the economic
and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for
violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-
judicial tribunal, or pertain to matters which are sub-judice in
nature (emphasis ours).
The law gives the Board the power to screen, review and examine
all “television programs.” By the clear terms of the law, the Board
has the power to “approve, delete x x x and/or prohibit the x x x
exhibition and/or television broadcast of x x x television programs x
x x.” The law also directs the Board to apply “contemporary Filipino
cultural values as standard” to determine those which are
objectionable for being “immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime.”
Petitioner contends that the term “television program” should not
include religious programs like its program “Ang Iglesia ni Cristo.” A
contrary interpretation, it is urged, will contravene Section 5,
Article III of the Constitution which guarantees that “no law shall be
made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed.”
We reject petitioner’s submission which need not set us adrift in a
constitutional voyage towards an uncharted sea. Freedom of
religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this
preferred status well aware that it is “designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good.”xvi[16] We have also laboriously defined
in our jurisprudence the intersecting umbras and penumbras of the
right to religious profession and worship. To quote the summation
of Mr. Justice Isagani Cruz, our well-known constitutionalist:xvii[17]
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect,
viz., freedom to believe and freedom to act on one’s beliefs. The
first is absolute as long as the belief is confined within the realm of
thought. The second is subject to regulation where the belief is
translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about
life and death; worship any god he chooses, or none at all; embrace
or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the
immortality of his soul — in fact, cherish any religious conviction as
he and he alone sees fit. However absurd his beliefs may be to
others, even if they be hostile and heretical to the majority, he has
full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. ‘Men may believe what they
cannot prove.’ Every one has a right to his beliefs and he may not
be called to account because he cannot prove what he believes.
(2) Freedom to Act on One’s Beliefs
But where the individual externalizes his beliefs in acts or omissions
that affect the public, his freedom to do so becomes subject to the
authority of the State. As great as this liberty may be, religious
freedom, like all the other rights guaranteed in the Constitution,
can be enjoyed only with a proper regard for the rights of others. It
is error to think that the mere invocation of religious freedom will
stalemate the State and render it impotent in protecting the general
welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable requirements or
prohibitions of the law.
Justice Frankfurter put it succinctly: ‘The constitutional provision on
religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence
is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may
not offer the object of his piety a human sacrifice, as this would be
murder. Those who literally interpret the Biblical command to “go
forth and multiply” are nevertheless not allowed to contract plural
marriages in violation of the laws against bigamy. A person cannot
refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone.
An atheist cannot express his disbelief in acts of derision that
wound the feelings of the faithful. The police power can be validly
asserted against the Indian practice of the suttee born of deep
religious conviction, that calls on the widow to immolate herself at
the funeral pile of her husband.
We thus reject petitioner’s postulate that its religious program is
per se beyond review by the respondent Board. Its public broadcast
on TV of its religious program brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes and ears
of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the
clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare.
A laissez faire policy on the exercise of religion can be seductive to
the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern
in our country today. Across the sea and in our shore, the bloodiest
and bitterest wars fought by men were caused by irreconcilable
religious differences. Our country is still not safe from the
recurrence of this stultifying strife considering our warring religious
beliefs and the fanaticism with which some of us cling and claw to
these beliefs. Even now, we have yet to settle the near century old
strife in Mindanao, the roots of which have been nourished by the
mistrust and misunderstanding between our Christian and Muslim
brothers and sisters. The bewildering rise of weird religious cults
espousing violence as an article of faith also proves the wisdom of
our rule rejecting a strict let alone policy on the exercise of religion.
For sure, we shall continue to subject any act pinching the space for
the free exercise of religion to a heightened scrutiny but we shall
not leave its rational exercise to the irrationality of man. For when
religion divides and its exercise destroys, the State should not
stand still.
It is also petitioner’s submission that the respondent appellate
court gravely erred when it affirmed the ruling of the respondent
Board x-rating its TV Program Series Nos. 115, 119, 121 and 128.
The records show that the respondent Board disallowed the
program series for “attacking” other religions. Thus, Exhibits “A”,
“A-1”, (respondent Board’s Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for “x x x criticizing different
religions, based on their own interpretation of the Bible.” They
suggested that the program should only explain petitioner’s “x x x
own faith and beliefs and avoid attacks on other faiths.” Exhibit
“B” shows that Series No. 119 was x-rated because “the Iglesia ni
Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned
because nowhere it is found in the bible that we should do so. This
is intolerance x x x.” Exhibit “C” shows that Series No. 121 was x-
rated “x x x for reasons of the attacks, they do on, specifically, the
Catholic religion. x x x (T)hey can not tell, dictate any other religion
that they are right and the rest are wrong x x x.” Exhibit “D” also
shows that Series No. 128 was not favorably recommended because
it “x x x outrages Catholic and Protestant’s beliefs.” On second
review, it was x-rated because of its “unbalanced interpretations of
some parts of the Bible.”xviii[18] In sum, the respondent Board x-
rated petitioner’s TV program series Nos. 115, 119, 121 and 128
because of petitioner’s controversial biblical interpretations and its
“attacks” against contrary religious beliefs. The respondent
appellate court agreed and even held that the said “attacks” are
indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility
against all prior restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows.xix[19] It is
the burden of the respondent Board to overthrow this presumption.
If it fails to discharge this burden, its act of censorship will be
struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated
petitioners TV series for “attacking” other religions, especially the
Catholic church. An examination of the evidence, especially Exhibits
“A”, “A-1”, “B, “C”, and “D” will show that the so-called “attacks”
are mere criticisms of some of the deeply held dogmas and tenets of
other religions. The videotapes were not viewed by the respondent
court as they were not presented as evidence. Yet they were
considered by the respondent court as indecent, contrary to law and
good customs, hence, can be prohibited from public viewing under
Section 3(c) of PD 1986. This ruling clearly suppresses petitioner’s
freedom of speech and interferes with its right to free exercise of
religion. It misappreciates the essence of freedom to differ as
delineated in the benchmark case of Cantwell v. Connecticut,xx[20]
viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields, the tenets of one man may seem
the rankest error to his neighbor. To persuade others to his own
point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are
prominent in church or state or even to false statements. But the
people of this nation have ordained in the light of history that
inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right
conduct on the part of the citizens of democracy.
The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such
criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious
dogmas and beliefs are often at war and to preserve peace among
their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet
of options. Neutrality alone is its fixed and immovable stance. In
fine, respondent board cannot squelch the speech of petitioner
Iglesia ni Cristo simply because it attacks other religions, even if
said religion happens to be the most numerous church in our
country. In a State where there ought to be no difference between
the appearance and the reality of freedom of religion, the remedy
against bad theology is better theology. The bedrock of freedom of
religion is freedom of thought and it is best served by encouraging
the marketplace of dueling ideas. When the luxury of time permits,
the marketplace of ideas demands that speech should be met by
more speech for it is the spark of opposite speech, the heat of
colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground “attacks
against another religion” in x-rating the religious program of
petitioner. Even a sideglance at Section 3 of PD 1986 will reveal
that it is not among the grounds to justify an order prohibiting the
broadcast of petitioner’s television program. The ground “attack
against another religion” was merely added by the respondent
Board in its Rules.xxi[21] This rule is void for it runs smack against
the hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize “attack
against any religion” as a ground allegedly “x x x because Section 3
(c) of PD 1986 prohibits the showing of motion pictures, television
programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone
who exhibits “shows which offend any race or religion.” We
respectfully disagree for it is plain that the word “attack” is not
synonymous with the word “offend.” Moreover, Article 201 (2) (b)
(3) of the Revised Penal Code should be invoked to justify the
subsequent punishment of a show which offends any religion. It
cannot be utilized to justify prior censorship of speech. It must be
emphasized that E.O. 876, the law prior to PD 1986, included
“attack against any religion” as a ground for censorship. The
ground was not, however, carried over by PD 1986. Its deletion is a
decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view. Thus, in an Opinion
dated November 28, 1985 then Minister of Justice, now President of
the Senate, Neptali Gonzales explained:
“x x x
“However, the question whether the BRMPT (now MTRCB) may
preview and censor the subject television program of INC should be
viewed in the light of the provision of Section 3, paragraph (c) of PD
1986, which is substantially the same as the provision of Section 3,
paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: ‘immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines
or its people or with dangerous tendency to encourage the
commission of violence, or of a wrong’ as determined by the Board,
‘applying contemporary Filipino cultural values as standard.’ As
stated, the intention of the Board to subject the INC’s television
program to ‘previewing and censorship is prompted by the fact that
its religious program makes mention of beliefs and practices of
other religion.’ On the face of the law itself, there can conceivably
be no basis for censorship of said program by the Board as much as
the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law.”
(Italics supplied)
Fourth. In x-rating the TV program of the petitioner, the
respondents failed to apply the clear and present danger rule. In
American Bible Society v. City of Manila,xxii[22] this Court held: “The
constitutional guaranty of free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate
religious information. Any restraint of such right can be justified
like other restraints on freedom of expression on the ground that
there is a clear and present danger of any substantive evil which
the State has the right to prevent.” In Victoriano vs. Elizalde Rope
Workers Union,xxiii[23] we further ruled that “x x x it is only where it
is unavoidably necessary to prevent an immediate and grave danger
to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.”
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video
tapes constitute impermissible attacks against another religion.
There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality
already on ground.
It is suggested that we re-examine the application of clear and
present danger rule to the case at bar. In the United States, it is
true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test in
Schenck v. US,xxiv[24] as follows: “x x x the question in every case is
whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to
prevent.” Admittedly, the test was originally designed to determine
the latitude which should be given to speech that espouses anti-
government action. Bannered by Justices Holmes and Brandeis, the
test attained its full flowering in the decade of the forties, when its
umbrella was used to protect speech other than subversive
speech.xxv[25] Thus, for instance, the test was applied to annul a
total ban on labor picketing.xxvi[26] The use of the test took a
downswing in the 1950’s when the US Supreme Court decided
Dennis v. United States involving communist conspiracy.xxvii[27] In
Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand’s formulation that “x x x in each case
[courts] must ask whether the gravity of the ‘evil,’ discounted by its
improbability, justifies such invasion of free speech as is necessary
to avoid the danger.” The imminence requirement of the test was
thus diminished and to that extent, the protection of the rule was
weakened. In 1969, however, the strength of the test was
reinstated in Brandenburg v. Ohio,xxviii[28] when the High Court
restored in the test the imminence requirement, and even added an
intent requirement which according to a noted commentator
ensured that only speech directed at inciting lawlessness could be
punished.xxix[29] Presently in the United States, the clear and
present danger test is not applied to protect low value speeches
such as obscene speech, commercial speech and defamation. Be
that as it may, the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a
hostile audience reaction, out of court contempt and release of
information that endangers a fair trial.xxx[30] Hence, even following
the drift of American jurisprudence, there is reason to apply the
clear and present danger test to the case at bar which concerns
speech that attacks other religions and could readily provoke
hostile audience reaction. It cannot be doubted that religious truths
disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and
present danger test to the case at bar because the issue involves
the content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the
evil apprehended cannot be established. The contention overlooks
the fact that the case at bar involves videotapes that are pre-taped
and hence, their speech content is known and not an X quantity.
Given the specific content of the speech, it is not unreasonable to
assume that the respondent Board, with its expertise, can
determine whether its sulphur will bring about the substantive evil
feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that “x x x the
determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the
boundaries of protected speech or expression is a judicial function
which cannot be arrogated by an administrative body such as a
Board of Censors.” He submits that a “system of prior restraint may
only be validly administered by judges and not left to administrative
agencies.” The same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American
rule in our jurisdiction. Its seedbed was laid down by Mr. Justice
Brennan in his concurring opinion in the 1962 case of Manual
Enterprise v. Day.xxxi[31] By 1965, the US Supreme Court in
Freedman v. Marylandxxxii[32] was ready to hold that “the teaching
of cases is that, because only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom
of expression, only a procedure requiring a judicial determination
suffices to impose a valid final restraint.”xxxiii[33]
While the thesis has a lot to commend itself, we are not ready to
hold that it is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts.
As far back as 1921, we upheld this set-up in Sotto vs. Ruiz,xxxiv[34]
viz.:
“The use of the mails by private persons is in the nature of a
privilege which can be regulated in order to avoid its abuse.
Persons possess no absolute right to put into the mail anything they
please, regardless of its character.
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power, is
extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of
the law, since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process
of law, the action of the Director of Posts must be subject to
revision by the courts in case he had abused his discretion or
exceeded his authority. (Ex-parte Jackson [1878], 96 U.S., 727;
Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post
Publishing Co. vs. Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous
character rests with the Director of Posts and involves the exercise
of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to
those cases coming from the United States Supreme Court and
pertaining to the United States Postmaster-General), that the courts
will not interfere with the decision of the Director of Posts unless
clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne
[1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63;
Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs.
Brown [1900], 103 Fed., 909, announcing a somewhat different
doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the
proposition whether or not courts alone are competent to decide
whether speech is constitutionally protected.xxxv[35] The issue
involves highly arguable policy considerations and can be better
addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals
dated March 24, 1995 is affirmed insofar as it sustained the
jurisdiction of the respondent MTRCB to review petitioner’s TV
program entitled “Ang Iglesia ni Cristo,” and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-
rating petitioner’s TV Program Series Nos. 115, 119, and 121. No
costs.
SO ORDERED.
IGLESIA NI CRISTO VS. COURT OF APPEALS [259 SCRA 529; G.R. NO.
119673; 26 JUL 1996]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: Petitioner has a television program entitled "Ang Iglesia ni Cristo"
aired on Channel 2 every Saturday and on Channel 13 every Sunday. The
program presents and propagates petitioner's religious beliefs, doctrines and
practices often times in comparative studies with other religions. Petitioner
submitted to the respondent Board of Review for Moving Pictures and
Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and
128. The Board classified the series as "X" or not for public viewing on the
ground that they "offend and constitute an attack against other religions
which is expressly prohibited by law." On November 28, 1992, it appealed to
the Office of the President the classification of its TV Series No. 128 which
allowed it through a letter of former Executive Secretary Edelmiro A.
Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the
respondent Board. According to the letter the episode in is protected by the
constitutional guarantee of free speech and expression and no indication
that the episode poses any clear and present danger. Petitioner also filed
Civil Case. Petitioner alleged that the respondent Board acted without
jurisdiction or with grave abuse of discretion in requiring petitioner to submit
the VTR tapes of its TV program and in x-rating them. It cited its TV Program
Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board
invoked its power under PD No. 19861 in relation to Article 201 of the
Revised Penal Code. The Iglesia ni Cristo insists on the literal translation of
the bible and says that our (Catholic) veneration of the Virgin Mary is not to
be condoned because nowhere it is found in the bible. The board contended
that it outrages Catholic and Protestant's beliefs. RTC ruled in favor of
petitioners. CA however reversed it hence this petition.
Issue: Whether or Not the "ang iglesia ni cristo" program is not
constitutionally protected as a form of religious exercise and expression.
Held: Yes. Any act that restrains speech is accompanied with presumption of
invalidity. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of censorship will be
struck down. This is true in this case. So-called "attacks" are mere criticisms
of some of the deeply held dogmas and tenets of other religions. RTC’s ruling
clearly suppresses petitioner's freedom of speech and interferes with its right
to free exercise of religion. “attack” is different from “offend” any race or
religion. The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such criticisms,
however, unclean they may be. Under our constitutional scheme, it is not the
task of the State to favor any religion by protecting it against an attack by
another religion. Religious dogmas and beliefs are often at war and to
preserve peace among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits the State from leaning
towards any religion. Respondent board cannot censor the speech of
petitioner Iglesia ni Cristo simply because it attacks other religions, even if
said religion happens to be the most numerous church in our country. The
basis of freedom of religion is freedom of thought and it is best served by
encouraging the marketplace of dueling ideas. It is only where it is
unavoidably necessary to prevent an immediate and grave danger to the
security and welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent necessary to avoid the
danger. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm.
Prior restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and imminent
evil. It is inappropriate to apply the clear and present danger test to the case
at bar because the issue involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the speech is first allowed, its
impact cannot be measured, and the causal connection between the speech
and the evil apprehended cannot be established. The determination of the
question as to whether or not such vilification, exaggeration or fabrication
falls within or lies outside the boundaries of protected speech or expression
is a judicial function which cannot be arrogated by an administrative body
such as a Board of Censors." A system of prior restraint may only be validly
administered by judges and not left to administrative agencies.
Iglesia ni Cristo v CA 259 SCRA 529 (1996)
F: This is a petition for review on the decision of the CA affirming action of
respondent Board of Review For Moving Pictures and Television that x-rated
the TV Program "Ang Iglesia ni Cristo" classifying it not for public viewing on
grounds that they offend and constitute an attack against other religions
which is expressly prohibited by law. Respondent contends the Board acted
without jurisdiction and in grave abuse of discretion by requiring them to
submit VTR tapes and x-rating them and suppression of freedom of
expression. Trial court rendered judgment ordering the Board to give
petitioner the permit for their TV program while ordering petitioners to
refrain from attacking and offending other religious sectors from their
program. In their motion for reconsideration the petitioner prays for the
deletion of the order of the court to make them subject to the requirement of
submitting the VTR tapes of their programs for review prior to showing on
television. Such motion was granted. Respondent board appealed before the
CA which reversed the decision of the lower court affirming the jurisdiction
and power of the board to review the TV program. In their petition for review
on certiorari, petitioner assails the jurisdiction of the Board over reviewing of
their TV program and its grave abuse of discretion of its power to review if
they are indeed vested with such.
Issue: whether or not the Board has jurisdiction over the case at bar and
whether or not it has acted with grave abuse of discretion.
Held: The court affirmed the jurisdiction of the Board to review TV programs
by virtue of the powers vested upon it by PD 1986. On the account of
suppression of religious freedom, the court ruled that any act that restrains
speech is accompanied with presumption of invalidity. The burden lies upon
the Board to overthrow this presumption. The decision of the lower court is a
suppression of the petitioner’s freedom of speech and free exercise of
religion. Respondent board cannot censor the speech of petitioner Iglesia ni
Cristo simply because it attacks other religions. It is only where it is
unavoidably necessary to prevent an immediate and grave danger to the
security and welfare of the community that infringement of religious freedom
may be justified. There is no showing whatsoever of the type of harm the
tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil. Thus the court affirmed the jurisdiction of the
Board to review the petitioner’s TV program while it reversed and set aside
the decision of the lower court that sustained the act of respondent in x-
rating the TV program of the petitioner.
2 fold aspects of religious profession and worship namely:
1. Freedom to believe (absolute)
Freedom to act on one’s belief – where an individual externalizes his beliefs
in acts or omissions affecting the public, this freedom to do so becomes
subject to the regulation authority of the state.
Cabansag vs Fernandez 6/22/11 9:55 AM
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8974 October 18, 1957
APOLONIO CABANSAG, plaintiff,
vs.
GEMINIANA MARIA FERNANDEZ, ET AL., defendants.
APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V.
MERRERA, respondents-appellants.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General
Jose G. Bautista and Solicitor Troadio T. Quiazon, Jr., appellee.
Merrera and Merrera for appellants.
BAUTISTA ANGELO, J.:
This is a contempt proceeding which arose in Civil Case No. 9564 of the
Court of First Instance of Pangasinan wherein Apolonio Cabansag and his
lawyers Roberto V. Merrera were found guilty and sentenced the first to pay
a fine of P20 and the last two P50 each with the warning that a repetition of
the of offense will next time be heavily dealt with.
Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of
Pangasinan a complaint seeking the ejectment of Geminiana Fernandez, et
al. from a parcel of land. Defendants filed their answer on January 31, 1947
and a motion to dismiss on February 2, 1947 and a motion of plaintiff's
counsel, set the case for hearing on July 30, 1947. The meeting was
postponed to August 8, 1947. On that day only one witness testified and the
case was postponed to August 25, 1947. Thereafter, three incidents
developed, namely: one regarding a claim for damages which was answered
by defendants, another concerning the issuance of a writ of preliminary
injunction which was set for on March 23, 1948, and the third relative to an
alleged contempt for violation of an agreement of the parties approved by
the court. Pleadings were filed by the parties on these incidents and the
court set the case for hearing on October 27, 1948. Hearing was postponed
to December 10, 1948. On this date, only part of the evidence was received
and the next hearing was scheduled for January 24,1949 when again only a
part of the evidence was received and the case was continued to October 4,
1949.
On October 4, 1949, the court, presided over by Judge Villamor upon petition
of both parties, ordered the stenographers who took down the notes during
the previous hearings to transcribe them within 15 days upon payment of
their fees, and the hearing was postponed until the transcript of said notes
had been submitted. Notwithstanding the failure of the stenographers to
transcribe their notes, the hearing was set for March 17, 1950. Two more
postponements followed for March 23, 1950 and March 27, 1950. On August
9, 1950, August 23, 1950, September 26, 1950 and November 29, 1950,
hearings were had but the case was only partly tried to be postponed again
to January 30, 1951 and February 19, 1951. Partial hearings were held on
February 20, 1951, March 12, 1951 and June 6,1951. These hearings were
followed by three more postponements and on August 15, 1951, the case
was partially heard. After this partial hearing, the trial was continued on
March 6, 1952 only to be postponed to May 27, 1952. No hearing took place
on said date and the case was set for continuation on December 9, 1952
when the court, Judge Pasicolan presiding, issued an order suggesting to the
parties to arrange with the stenographers who took down the notes to
transcribe their respective notes and that the case would be set for hearing
after the submission of the transcript. From December 9, 1952 to August 12,
1954, no further step was taken either by the court or any of the contending
parties in the case. .
On December 30, 1953, President Magsaysay assumed office, he issued
Executive Order No. I creating the Presidential Complaints and Action
Commission (PCAC), which was later superseded by Executive Order 19
promulgated on March 17, 1954. And on August 12, 1954 Apolonio
Cabansag, apparently irked and disappointed by the delay in the disposition
of his case, wrote the PCAC, a letter copy which he furnished the Secretary of
Justice and the Executive Judge of the Court of First Instance of Pangasinan,
which reads:
We, poor people of the Philippines are very grateful for the creation of your
Office. Unlike in the old days, poor people are not heard, but now the PCAC is
the sword of Damocles ready to smite bureaucratic aristocracy. Poor people
can now rely on PCAC to help them.
Undaunted, the undersigned begs to request the help of the PCAC in the
interest of public service, as President Magsaysay has in mind to create the
said PACC, to have his old case stated above be terminated once and for all.
The undersigned has long since been deprived of his land thru the careful
maneuvers of a tactical lawyer. The said case which had long been pending
could not be decided due to the fact that the transcript of the records has
not, as yet, been transcribed by the stenographers who took the
stenographic notes. The new Judges could not proceed to hear the case
before the transcription of the said notes. The stenographers who took the
notes are now assigned in another courts. It seems that the undersigned will
be deprived indefinitely of his right of possession over the land he owns. He
has no other recourse than to ask the help of the ever willing PCAC to help
him solve his predicament at an early date.
Now then, Mr. Chief, the undersigned relies on you to do your utmost best to
bring justice to its final destination. My confidence reposes in you. Thanks.
Most confidently yours,
(Sgd.) APOLONIO CABANSAG
Plaintiff
Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk
of Court of First Instance of Pangasinan instructing him to require the
stenographers concerned to transcribe their notes in Civil Case No. 9564.
The clerk of court, upon receipt of this instruction on August 27, 1954,
referred the matter to Judge Jesus P. Morfe before whom the case was then
informing him that the two stenographers concerned, Miss Iluminada Abello
and Juan Gaspar, have already been assigned elsewhere. On the same date,
Judge Morfe wrote the Secretary of Justice informing him that under
provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of Court,
said stenographers are not obliged to transcribe their notes except in cases
of appeal and that since the parties are not poor litigants, they are not
entitled to transcription free of charge, aside from the fact that said
stenographers were no longer under his jurisdiction.
Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for
defendants, filed a motion before Judge Morfe praying that Apolonio
Cabansag be declared in contempt of court for an alleged scurrilous remark
he made in his letter to the PCAC to the effect that he, Cabansag, has long
been deprived of his land "thru the careful maneuvers of a tactical lawyer",
to which counsel for Cabansag replied with a counter-charge praying that
Atty. Fernandez be in turn declared in contempt because of certain
contemptuous remarks made by him in his pleading. Acting on these charges
and counter- charges, on September 14, 1954, Judge Morfe dismissed both
charges but ordered Cabansag to show cause in writing within 10 days why
he should not be held liable for contempt for sending the above letter to the
PCAC which tended to degrade the court in the eyes of the President
and the people. Cabansag filed his answer stating that he did not have the
idea to besmirch the dignity or belittle the respect due the court nor was he
actuated with malice when he addressed the letter to the PCAC; that there is
no single contemptuous word in said letter nor was it intended to give the
Chief Executive a wrong impression or opinion of the court; and that if there
was any inefficiency in the disposal of his case, the same was committed by
the judges who previously intervened in the case.
In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera
and Rufino V. Merrera' also submitted a written manifestation stating that
the sending of the letter to their client to the PCAC was through their
knowledge and consent because they believed that there was nothing wrong
in doing so. And it appearing that said attorneys had a hand in the writing
and remittance of the letter to the PCAC, Judge Morfe on, on September 29,
1954, issued another order requiring also said attorneys to show cause why
they should not likewise be held for contempt for having committed acts
which tend to impede, obstruct or degrade the administration of justice.
Anent the charge for contempt preferred by Judge Morfe against Apolonio
Cabansag, several incidents took place touching on the right of the Special
Counsel of the Department of Justice to appear as counsel for Cabansag,
which were however settled when the court allowed said Special Counsel to
appear as amicus curiae in his official capacity. In addition to this Special
Counsel, other members of the local bar were likewise allowed to appear for
respondents in view of the importance of the issues involved. After due
hearing, where the counsel of respondents were allowed to argue and submit
memoranda, the decision finding respondents guilty of contempt and
sentencing them to pay a fine as stated in the early part of this decision.
Respondents in due time appealed to this Court.
The issues involved in this appeal appear well stated in the decision of the
trial Court. They are: (a) Did the writing in the letter in question to the PCAC
tend directly or indirectly to put the lower court into disrepute or belittle,
degrade or embarrass it in its administration of justice?; and (b) Did writing
of said letter tend to draw the intervention of the PCAC in the instant case
which will have the effect of undermining the court's judicial independence?
We agree that the trial court that courts have the power to preserve their
integrity and maintain their dignity without which their administration of
justice is bound to falter or fail (Villavicencio vs. Lukban, 39 Phil., 778;
Borromeo vs. Mariano, 41 Phil., 322). This is the preservative power to
punish for contempt (Rule 64, Rules of Court; Villavicencio vs. Lukban,
supra). This power is inherent in all courts and essential to their right of self-
preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In order
that it may conduct its business unhampered by publications which tends to
impair the impartiality of its decisions or otherwise obstruct the
administration of justice, the court will not hesitate to exercise it regardless
of who is affected. For, "as important as is the maintenance of unmuzzled
press and the free exercise of the rights of the citizen is the maintenance of
the independence of the judiciary" (In re Lozano and Quevedo, 54 Phil.,
801).The reason for this is that respect of the courts guarantees the stability
of their institution. Without such said institution would be resting on a very
shaky foundation (Salcedo vs. Hernandez, 61 Phil., 724).
The question that now arises is: Has the lower court legitimately and
justifiably exercised this power in the instant case?
The lower court tells us that it has because in its opinion the act of
respondents to put it belittle or degrade or embarrass it in its administration
of justice, and so it punished them for contempt to protect its judicial
independence. But appellants believe otherwise, for they contend that in
sending the letter in question to the PCAC, they did nothing but to exercise
their right to petition the government for redress of their grievance as
guaranteed by our constitution (section 1, paragraph 8, Article III).
The very idea of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in respect affairs and
to petition for a redress of grievances." The First Amendments of the Federal
expressly guarantees that right against abridgement by Congress. But
mention does not argue exclusion elsewhere. For the right is one that cannot
be denied without violating those fundamental principles of liberty and
justice which lie at the base of all civil and political institutions,- principles
which the Fourteenth Amendment embodies in the general terms of its due
process clause. (Emerson and Haber, Political and Civil Rights in the United
States, p. 419.).
We are therefore confronted with a clash of two fundamental rights which lie
at the bottom of our democratic institutions-the independence of the
judiciary the right to petition the government for redress of grievance. How
to balance and reconcile the exercise of these rights is the problem posed in
the case before us.
. . . A free press is not to be judiciary, nor an independent judiciary to a free
press. Neither has primacy over the other; both are indispensable to a free
society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the
potent means of assuring judges their independence is a free press. (Justice
Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356)
Two theoretical formulas had been devised in the determination of
conflicting rights of similar import in an attempt to draw the proper
constitutional boundary between freedom of expression and independence
of the judiciary. These are the "clear and present danger" rule and the
"dangerous tendency" rule. The first as interpreted in a number of cases,
means that the evil consequence of the comment or utterance must be
"extremely serious and the degree of imminence extremely high" before the
utterance can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. And this evil is primarily the
"disorderly and unfair administration of justice." This test establishes a
definite rule in constitutional law. It provides the criterion as to what words
maybe published. Under this rule, the advocacy of ideas cannot
constitutionally be abridged unless there is a clear and present danger that
such advocacy will harm the administration of justice.
This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in
1919, and ever since it has afforded a practical guidance in a great variety of
cases in which the scope of the constitutional protection of freedom of
expression was put in issue.1 In one of said cases, the United States Supreme
Court has made the significant suggestion that this rule "is an appropriate
guide in determining the constitutionality of restriction upon expression
where the substantial evil sought to be prevented by the restriction is
destruction of life or property or invasion of the right of privacy" Thornhill vs.
Alabama, 310 U.S. 88).
Thus, speaking of the extent and scope of the application of this rule, the
Supreme Court of the United States said "Clear and present danger of
substantive evils as a result of indiscriminate publications regarding judicial
proceedings justifies an impairment of the constitutional right of freedom of
speech and press only if the evils are extremely serious and the degree of
imminence extremely high. . . . A public utterance or publication is not to be
denied the constitutional protection of freedom of speech and press merely
because it concerns a judicial proceeding still pending in the courts, upon the
theory that in such a case it must necessarily tend to obstruct the orderly
and fair administration of justice. The possibility of engendering disrespect
for the judiciary as a result of the published criticism of a judge is not such a
substantive evil as will justify impairment of the constitutional right of
freedom of speech and press." (Bridges vs. California, 314 U.S. 252, syllabi)
No less important is the ruling on the power of the court to punish for
contempt in relation to the freedom of speech and press. We quote;
"Freedom of speech and press should not be impaired through the exercise
of the punish for contempt of court unless there is no doubt that the
utterances in question are a serious and imminent threat to the
administration of justice. A judge may hold in contempt one who ventures to
publish anything that tends to make him unpopular or to belittle him. . . . The
vehemence of the language used in newspaper publications concerning a
judge's decision is not alone the measure of the power to punish for
contempt. The fires which it kindles must constitute an imminent not merely
a likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S.
367, syllabi)
And in weighing the danger of possible interference with the courts by
newspaper criticism against the right of free speech to determine whether
such criticism may constitutionally be punished as contempt, it was ruled
that "freedom of public comment should in borderline instances weigh
heavily against a possible tendency to influence pending cases."
(Pennekamp vs. Florida, 328 U. S. 331).
The question in every case, according to Justice Holmes, 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 (Schenck vs. U. S., supra).
The "dangerous tendency" rule, on the other hand, has been adopted in
cases where extreme difficulty is confronted determining where the freedom
of expression ends and the right of courts to protect their independence
begins. There must be a remedy to borderline cases and the basic principle
of this rule lies in that the freedom of speech and of the press, as well as the
right to petition for redress of grievance, while guaranteed by the
constitution, are not absolute. They are subject to restrictions and
limitations, one of them being the protection of the courts against contempt
(Gilbert vs. Minnesota, 254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words
are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts
be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence or
unlawfulness. It is sufficient if the natural tendency and probable effect of
the utterance be to bring about the substantive evil the utterance be to bring
about the substantive evil which the legislative body seeks to prevent.
(Gitlow vs. New York, 268 U.S. 652.).
It is a fundamental principle, long established, that the freedom of speech
and of the press which is secured by the Constitution does not confer an
absolute right to speak or publish, without responsibility, whatever one may
choose, or an unrestricted and unbridled license that gives immunity for
every possible use of language, and prevents the punishment of those who
abuse this freedom. . . . Reasonably limited, it was said by story in the
passage cited this freedom is an inestimable privilege in a free government;
without such limitation, it might become the scourge of the Republic.
xxx xxx xxx
And, for yet more imperative reasons, a state may punish utterances
endangering the foundations of organized government and threatening its
overthrow by unlawful means. These imperil its own existence as a
constitutional state. . . .
xxx xxx xxx
. . . And the immediate danger is none the less real and substantial because
the effect of a given utterance cannot be accurately foreseen. The state
cannot reasonably be required to measure the danger from every such
utterance in the nice balance of a jeweler's scale. A single revolutionary
spark, may kindle a fire that, smoldering for a time, may burst into a
sweeping and destructive conflagration. It cannot be said that the state is
acting arbitrarily or unreasonably when, in the exercise of its judgment as to
the measures necessary to protect the public peace and safety it seeks to
extinguish the spark without waiting until it has enkindled the flame or
blazed into the conflagration. It cannot reasonably be required to defer the
adoption of measures for its own peace and safety until the revolutionary
utterances lead to actual disturbances of the public peace or imminent and
immediate danger of its own destruction; but it may, in the exercise of its
judgment, suppress the threatened danger in its incipiency. In People vs.
Lloyd, supra, p. 35 (136 N. E. 505), it was aptly said: Manifestly, the
legislature has authority to forbid the advocacy of a doctrine until there is a
present and imminent danger of the success of the plan advocated. If the
state were compelled to wait until the apprehended danger became certain,
than its right to protect itself would come into being simultaneously with the
overthrow of the government, when there would be neither prosecuting
officers nor courts for the enforcement of the law." Gitlow va. New York,
supra.)
The question then to be determined is: Has the letter of Cabansag created a
sufficient danger to a fair administration of justice? Did its remittance to the
PCAC create a danger sufficiently imminent to come under the two rules
mentioned above?
Even if we make a careful analysis of the letter sent by appellant Cabansag
to the PCAC which has given rise to the present contempt proceedings, we
would at once see that it was far from his mind to put the court in ridicule
and much less to belittle or degrade it in the eyes of those to whom the
letter was addressed for, undoubtedly, he was compelled to act the way he
did simply because he saw no other way of obtaining the early termination of
his case. This is clearly inferable from its context wherein, in respectful and
courteous language, Cabansag gave vent to his feeling when he said that he
"has long since been deprived of his land thru the careful maneuvers of a
tactical lawyer"; that the case which had long been pending could not be
decided due to the fact that the transcript of the records has not as yet, been
transcribed by the stenographer who took the stenographic notes", and that
the new Judges could not proceed to hear the case before the transcription
of the said notes." Analyzing said utterances, one would see that if they ever
criticize, "the criticism refers, not to the court, but to opposing counsel
whose tactical maneuvers" has allegedly caused the undue delay of the
case. The grievance or complaint, if any, is addressed to the stenographers
for their apparent indifference in transcribing their notes.
The only disturbing effect of the letter which perhaps has been the
motivating factor of the lodging of the contempt charge by the trial judge is
the fact that the letter was sent to the Office of the President asking for help
because of the precarious predicament of Cabansag. While the course of
action he had taken may not be a wise one for it would have been proper
had he addressed his letter to the Secretary of Justice or to the Supreme
Court, such act alone would not be contemptuous. To be so the danger must
cause a serious imminent threat to the administration of justice. Nor can we
infer that such act has "a dangerous tendency" to belittle the court or
undermine the administration of justice for the writer merely exercised his
constitutional right to petition the government for redress of a legitimate
grievance.
The fact is that even the trial court itself has at the beginning entertained
such impression when it found that the criticism was directed not against the
court but against the counsel of the opposite party, and that only on second
thought did it change its mind when it developed that the act of Cabansag
was prompted by the advice of his lawyers. Nor can it be contended that the
latter is groundless or one motivated by malice. The circumstances borne by
the record which preceded the sending of that letter show that there was an
apparent cause for grievance.
Thus, the record shows that on January 13, 1947, or more than 8 years ago,
appellant Cabansag filed with the lower court a complaint against Geminiana
Fernandez, et al. seeking to eject them from a portion of land covered by a
torrens title. On October 4, 1949, or two years thereafter, the court, Judge
Villamor presiding, issued an order requiring the stenographers who took
down the notes to transcribe them within 15 days upon payment of their
corresponding fees. On December 9, 1952, or almost 3 years thereafter, the
court, Judge Pasicolan presiding, issued a similar order requiring the
stenographers to transcribe their notes and decreeing that the case be set
for hearing after said notes had been transcribed. No further step was taken
from his last date either by the by the court or by the opposing parties.
Meanwhile, the stenographers were given assignment elsewhere, and when
this matter brought to the attention of the court by its own clerk of court,
said court in an indorsement sent to the Secretary of Justice expressed its
inability to take action in view of the fact that the stenographers were no
longer under its jurisdiction. And in said indorsement nothing was said about
its readiness to continue the trial even in the absence of the transcript of the
notes.
Under such a state of affairs, appellant Cabansag cannot certainly be blamed
for entertaining the belief that the only way by which he could obtain redress
of his grievance is to address his letter to the PCAC which after all is the
office created by the late President to receive and hear all complaints
against officials and employees of the government to facilitate which the
assistance and cooperation of all the executive departments were enjoined
(Executive Order No. 1, as amended by Executive Order No. 19). And one of
the departments that come under the control of the President is the
Department of Justice which under the law has administrative supervision
over courts of first instance.(Section 83, Revised Administrative Code) The
PCAC is part of the Office of the President. It can, therefore, be said that the
letter of Cabansag though sent to the PCAC is intended for the Department
of Justice where it properly belongs. Consequently, the sending of that letter
may be considered as one sent to the Department of Justice and as such
cannot constitute undue publication that would place him beyond the mantle
of protection of our constitution.
. . . under the presidential type of government which we adopted and
considering the departmental organization established and continued in
force by paragraph, section 12, Article VII, of our Constitution, all executive
and administrative organizations are adjuncts of the Executive Department,
the heads of the executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is required
by the Constitution or the law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business,
are unless disapproved or reprobated by the Chief Executive presumptively
the acts of the Chief Executive. (Villena vs. The Secretary of the Interior, 67
Phil., 451, 463.)
We would only add one word in connection with the participation in the
incident of Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino V.
Merrera. While the conduct of Cabansag may be justified considering that,
being a layman, he is unaware of the technical rules of law and procedure
which may place him under the protective mantle of our constitution, such
does not obtain with regard to his co-appellants. Being learned in the law
and officers of the court, they should have acted with more care and
circumspection in advising their client to avoid undue embarrassment to the
court or unnecessary interference with the normal course of its proceedings.
Their duty as lawyers is always to observe utmost respect to the court and
defend it against unjust criticism and clamor. Had they observed a more
judicious behavior, they would have avoided the unpleasant incident that
had arisen. However, the record is bereft of any proof showing improper
motive on their part, much less bad faith in their actuation. But they should
be warned, as we now do, that a commission of a similar misstep in the
future would render them amenable to a more severe disciplinary action.
Wherefore, the decision appealed from is reversed, without pronouncement
as to costs.
Sanidad 6/22/11 9:55 AM
Sanidad vs. Comelec
Facts:
This is a petition for certiorari assailing the constitutionality of Section
19 of Comelece Resolution No. 2167 on the ground that it violates the
constitutional guarantee of the freedom of expression and of the press. On
October 23, 1989, Republic Act. No. 6766, entitled “AN ACT PROVIDING FOR
AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION” was
enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras
which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra
and Kalinga-Apayao, all comprising gthe Cordillera Autonomous Region, shall
take part in a plebiscite for the ratification of said Organic Act originally
scheduled last December 27, 1989 which was however, reset to January 30,
1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989.
The Commission on Elections, by virtue of the power vested by the 1987
Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other
pertinent election laws, promulgated Resolution No. 2167, to govern the
conduct of the plebiscite on the said Organic Act for the Cordillera
Autonomous Region.
In a petition dated November 20, 1989, herein petitioner Pablito Sanidad,
who claims to be a newspaper columnist of the “OVERVIEW” for the BAGUIO
MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and
the Cordilleras, assailed the constitutionality of Section 19 of Comelec
Resolution No. 2167, which Provides:
Section 19: Prohibition on columnists, commentators or announcers. –
During the plebiscite campaign period, on the day before and on the
plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for
the plebiscite issue.
It is alleged by petitioner that said provision is void and
unconstitutional because it violates the constitutional guarantees of the
freedom of expression and of the press enshrined in the Constitution. Unlike
a regular news reporter or news correspondent who merely reports the news,
petitioner maintains that as a columnist, his column obviously and
necessarily contains and reflects his opinions, view and beliefs on any issue
or subject about which he writes. Petitioner likewise maintains that if media
practitioners were to express their views, beliefs and opinions on the issue
submitted to a plebiscite, it would in fact help in the government drive and
desire to disseminate information, and hear, as well as ventilate, all sides of
the issue.
Issue:
Whether or not Section 19 of Comelec Resolution No. 2167 is
unconstitutional
Ruling:
The Supreme Court ruled that Section 19 of Comelec Res. No. 2167 is
unconstitutional.
It is clear from Art. IX-C of the 1987 Constitution that what was granted
to the Comelec was the power to supervise and regulate the use and
enjoyment of franchises, permits or other grants issued for the operation of
transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right
to reply, including reasonable, equal rates therefore, for the public
information campaigns and forums among candidates are ensured. The evil
sought to be prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate in terms of
advertising space or radio or television time. This is also the reason why a
“columnist, commentator, announcer or personality, who is a candidate for
any elective office to required to take a leave of absence from his work
during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be
gainsaid that columnist or commentator who is also a candidate would be
more exposed to the voters to the prejudice of other candidates unless
required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd
par. Of R.A. 6646 can be construed to mean that the Comelec has also been
granted the right to supervise and regulate the exercise of media
practitioners themselves of their right of expression during plebiscite
periods. Media practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the candidates. In
fact, there are no candidates involved in plebiscite. Therefore, section 19 of
Comelec Resolution No. 2167 has no statutory basis.
Plebiscite Issue are matters of public concern and importance. The
people’s right to be informed and to be able to freely and intelligently make
a decision would be better served by access to an unabridged discussion of
the issue, including the forum. The people affected by the Issue presented in
a plebiscite should not be unduly burdened by restrictions on the forum
where the right to expression but they do not guarantee full dissemination of
information to the public concerned because they are limited to either
specific portions in newspapers or to specific radio or television times.
The instant petition is granted, Section 19 of Comelec Res. No, 2167 is
declared null and void and unconstitutional.
Sanidad vs. Commission on Elections
[GR L-44640, 12 October 1976]; also Guzman vs. Comelec [GR L-44684], and
Gonzales vs. Commission on Elections [GR L-44714]
Facts: On 2 September 1976, President Ferdinand E. Marcos issued
Presidential Decree 991 calling for a national referendum on 16 October
1976 for the Citizens Assemblies ("barangays") to resolve, among other
things, the issues of martial law, the interim assembly, its replacement, the
powers of such replacement, the period of its existence, the length of the
period for the exercise by the President of his present powers. 20 days after
or on 22 September 1976, the President issued another related decree,
Presidential Decree 1031, amending the previous Presidential Decree 991,
by declaring the provisions of Presidential Decree 229 providing for the
manner of voting and canvass of votes in "barangays" (Citizens Assemblies)
applicable to the national referendum-plebiscite of 16 October 1976. Quite
relevantly, Presidential Decree 1031 repealed inter alia, Section 4, of
Presidential Decree 991. On the same date of 22 September 1976, the
President issued Presidential Decree 1033, stating the questions to he
submitted to the people in the referendum-plebiscite on 16 October 1976.
The Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the interim National Assembly evinces their
desire to have such body abolished and replaced thru a constitutional
amendment, providing for a new interim legislative body, which will be
submitted directly to the people in the referendum-plebiscite of October 16.
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite. On 27
September 1976, Pablo C. Sanidad and Pablito V. Sanidad, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to
enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments
to the Constitution, as well as Presidential Decree 1031, insofar as it directs
the Commission on Elections to supervise, control, hold, and conduct the
Referendum-Plebiscite scheduled on 16 October 1976. They contend that
under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the
new Constitution. As a consequence, the Referendum-Plebiscite on October
16 has no constitutional or legal basis. On 30 September 1976, another
action for Prohibition with Preliminary Injunction, docketed as L-44684, was
instituted by Vicente M. Guzman, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or revision
of the Constitution during the transition period is expressly conferred on the
interim National Assembly under action 16, Article XVII of the Constitution.
Still another petition for Prohibition with Preliminary Injunction was filed on 5
October 1976 by Raul M. Gonzales, his son Raul Jr., and Alfredo Salapantan,
docketed as L-44714, to restrain the implementation of Presidential Decrees
relative to the forthcoming Referendum-Plebiscite of October 16.
Issue: Whether the President may call upon a referendum for the
amendment of the Constitution.
Held: Section 1 of Article XVI of the 1973 Constitution on Amendments
ordains that "(1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The National Assembly may,
by a vote of two-thirds of all its Members, call a constitutional convention or,
by a majority vote of all its Members, submit the question of calling such a
convention to the electorate in an election." Section 2 thereof provides that
"Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not
later than three months a after the approval of such amendment or revision."
In the present period of transition, the interim National Assembly instituted
in the Transitory Provisions is conferred with that amending power. Section
15 of the Transitory Provisions reads "The interim National Assembly, upon
special call by the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof." There
are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normalcy,
the amending process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its members; or (2) by
a Constitutional Convention called by a vote of two-thirds of all the Members
of the National Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon by a majority
vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the
interim National Assembly upon special call by the interim Prime Minister.
The Court in Aquino v. COMELEC, had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall
initially convene the interim National Assembly. The Constitutional
Convention intended to leave to the President the determination of the time
when he shall initially convene the interim National Assembly, consistent
with the prevailing conditions of peace and order in the country. When the
Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene the interim
National Assembly. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves.
In the plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of the
interim National Assembly. In the referendum of 24 July 1973, the Citizens
Assemblies ("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the referendum of 27
February 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the
members of Congress and delegates of the Constitutional Convention, who
were deemed automatically members of the interim National Assembly, were
against its inclusion since in that referendum of January, 1973 the people
had already resolved against it. In sensu striciore, when the legislative arm
of the state undertakes the proposals of amendment to a Constitution, that
body is not in the usual function of lawmaking. It is not legislating when
engaged in the amending process. Rather, it is exercising a peculiar power
bestowed upon it by the fundamental charter itself. In the Philippines, that
power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of the Transitory Provisions (for the
interim National Assembly). While ordinarily it is the business of the
legislating body to legislate for the nation by virtue of constitutional
conferment, amending of the Constitution is not legislative in character. In
political science a distinction is made between constitutional content of an
organic character and that of a legislative character. The distinction,
however, is one of policy, not of law. Such being the case, approval of the
President of any proposed amendment is a misnomer. The prerogative of the
President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of
amendments to the Constitution.
Gonzales v COMELEC 6/22/11 9:55 AM
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27833 April 18, 1969
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE
CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and
FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo
Tañada as amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral
process by Congress calling a halt to the undesirable practice of prolonged
political campaign bringing in their wake serious evils not the least of which
is the ever increasing cost of seeking public office, is challenged on
constitutional grounds. More precisely, the basic liberties of free speech and
free press, freedom of assembly and freedom of association are invoked to
nullify the act. Thus the question confronting this Court is one of
transcendental significance.
It is faced with the reconciliation of two values esteemed highly and
cherished dearly in a constitutional democracy. One is the freedom of belief
and of expression availed of by an individual whether by himself alone or in
association with others of similar persuasion, a goal that occupies a place
and to none in the legal hierarchy. The other is the safeguarding of the
equally vital right of suffrage by a prohibition of the early nomination of
candidates and the limitation of the period of election campaign or partisan
political activity, with the hope that the time-consuming efforts, entailing
huge expenditures of funds and involving the risk of bitter rivalries that may
end in violence, to paraphrase the explanatory note of the challenged
legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of
judicial duty. To paraphrase a landmark opinion, 1 when we act in these
matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we cannot
escape under the Constitution, one that history authenticates, to pass upon
every assertion of an alleged infringement of liberty, when our competence
is appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory Relief
with Preliminary Injunction, filed on July 22, 1967, a proceeding that should
have been started in the of Court of First Instance but treated by this Court
as one of prohibition in view of the seriousness and the urgency of the
constitutional issue raised. Petitioners challenged the validity of two new
sections now included in the Revised Election Code, under Republic Act No.
4880, which was approved and took effect on June 17, 1967, prohibiting the
too early nomination of candidates 2 and limiting the period of election
campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity"
are likewise defined. The former according to Act No. 4880 "refers to any
person aspiring for or seeking an elective public office regarded of whether
or not said person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate." "Election campaign" or
"partisan political activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public
office." Then the acts were specified. There is a proviso that simple
expression of opinion and thoughts concerning the election shall not be
considered as part of an election campaign. There is the further proviso that
nothing stated in the Act "shall be understood to prevent any person from
expressing his views on current political problems or issues, or from
mentioning the names of the candidates for public office whom he supports."
4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official
candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private
individual, a registered voter in the City of Manila and a political leader of his
co-petitioner. It is their claim that "the enforcement of said Republic Act No.
4880 in question [would] prejudice [their] basic rights..., such as their
freedom of speech, their freedom of assembly and their right to form
associations or societies for purpose not contrary to law, guaranteed under
the Philippine Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press,
freedom of association and freedom of assembly with a citation of two
American Supreme Court decisions, 5 they asserted that "there is nothing in
the spirit or intention of the law that would legally justify its passage and
[enforcement] whether for reasons of public policy, public order or morality,
and that therefore the enactment of Republic Act [No.] 4880 under, the guise
of regulation is but a clear and simple abridgment of the constitutional rights
of freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..." There was the
further allegation that the nomination of a candidate and the fixing of period
of election campaign are matters of political expediency and convenience
which only political parties can regulate or curtail by and among themselves
through self-restraint or mutual understanding or agreement and that the
regulation and limitation of these political matters invoking the police power,
in the absence of clear and present danger to the state, would render the
constitutional rights of petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be
declared unconstitutional, null and void, respondent Commission on
Elections, in its answer filed on August 1, 1967, after denying the allegations
as to the validity of the act "for being mere conclusions of law, erroneous at
that," and setting forth special affirmative defenses, procedural and
substantive character, would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same date
a resolution was passed by us to the following effect: "At the hearing of case
L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F.
Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios
appeared for the respondent and they were given a period of four days from
today within which to submit, simultaneously,, their respective memorandum
in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came
from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs.
Commission on Elections), the Court, with eight (8) Justice present, having
deliberated on the issue of the constitutionality of Republic Act No. 4880;
and a divergence of views having developed among the Justices as to the
constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election
Code: considering the Constitutional provision that "no treaty or law may be
declared unconstitutional without the concurrence of two-thirds of all the
members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to
defer final voting on the issue until after the return of the Justices now on
official leave."
The case was then reset for oral argument. At such hearing, one of the co-
petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as
counsel, assailed the validity of the challenged legislation relying primarily
on American Supreme Court opinion that warn against curtailment in
whatever guise or form of the cherished freedoms of expression, of assemble
and of association, all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly represented by
Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he
did, arguing most impressively with a persuasive exposition of the existence
of undeniable conditions that imperatively called for regulation of the
electoral process and with full recognition that Act No. 4880 could indeed be
looked upon as a limitation on the preferred rights of speech and press, of
assembly and of association. He did justify its enactment however under the
clear and present danger doctrine, there being the substantive evil of
elections, whether for national or local officials, being debased and degraded
by unrestricted campaigning, excess of partisanship and undue
concentration in politics with the loss not only of efficiency in government
but of lives as well.
The matter was then discussed in conference, but no final action was taken.
The divergence of views with reference to the paragraphs above mentioned
having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity
of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union,
the U.P. Law Center and the U.P. Women Lawyers' Circle were included,
among them. They did file their respective memoranda with this Court and
aided it in the consideration of the constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was
raised by five members of the Court. 6 It is their view that respondent
Commission on Elections not being sought to be restrained from performing
any specific act, this suit cannot be characterized as other than a mere
request for an advisory opinion. Such a view, from the remedial law
standpoint, has much to recommend it. Nonetheless, a majority would affirm,
the original stand that under the circumstances it could still rightfully be
treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this
Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ... be now
resolved." 7 It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the
undeniable necessity for a ruling, the national elections being, barely six
months away, reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate
invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the
matter.
There is another procedural obstacle raised by respondent to be hurdled. It is
not insuperable. It is true that ordinarily, a party who impugns the validity of
a statute or ordinance must have a substantial interest in the case such that
he has sustained, or will sustain, direct injury as a result of its enforcement.
8 Respondent cannot see such interest as being possessed by petitioners. It
may indicate the clarity of vision being dimmed, considering that one of the
petitioners was a candidate for an elective position. Even if such were the
case, however, the objection is not necessarily fatal. In this jurisdiction, the
rule has been sufficiently relaxed to allow a taxpayer to bring an action to
restrain the expenditure of public funds through the enforcement of an
invalid or unconstitutional legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was
laid on Republic Act No. 4880 as an exercise of the police power of the state,
designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long
period before elections it necessarily entails huge expenditures of funds on
the part of the candidates, precipitates violence and even deaths, results in
the corruption of the electorate, and inflicts direful consequences upon
public interest as the vital affairs of the country are sacrificed to purely
partisan pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech,
free press, freedom of assembly and 'freedom' of association. Would it were
as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes
though against such a cavalier approach. "The case confronts us again with
the duty our system places on this Court to say where the individual's,
freedom ends the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual. presumption supporting
legislation is balanced by the preferred place given in our scheme to the
great, the indispensable democratic freedoms secured by the First
Amendment.... That priority gives these liberties a sanctity and a sanction
not permitting dubious intrusions. And it is the character of the right, not of
the limitation, which determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure
dealing with elections, cited in the answer of respondent, militates against a
stand minimizing the importance and significance of the alleged violation of
individual rights: "As so construed by us, it has not been made to appear that
section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
violative of any provision of either the state or Federal Constitution on the
subject of free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11 Another leading State
decision is much more emphatic: "Broad as the power of the legislature is
with respect to regulation of elections, that power is not wholly without
limitation. Under the guise of regulating elections, the legislature may not
deprive a citizen of the right of trial by jury. A person charged with its
violation may not be compelled to give evidence against himself. If it
destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be
squarely met.lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may prove
illuminating. The primacy, the high estate accorded freedom of expression is
of course a fundamental postulate of our constitutional system. No law shall
be passed abridging the freedom of speech or of the press .... 13 What does
it embrace? At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public interest
without censorship or punishment. 14 There is to be then no previous
restraint on the communication of views or subsequent liability whether in
libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or
contempt proceedings 18 unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.
The vital need in 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. 19 The trend as reflected in Philippine and American decisions is
to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the
principle that debate of public issue should be uninhibited, robust, and wide-
open. 20 It is not going too far, according to another American decision, to
view the function of free speech as inviting dispute. "It may indeed best
serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 21
Freedom of speech and of the press thus means something more than the
right to approve existing political beliefs or economic arrangements, to lend
support to official measures, to take refuge in the existing climate of opinion
on any matter of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those who question,
who do not conform, who differ. To paraphrase Justice Holmes, it is freedom
for the thought that we hate, no less than for the thought that agrees with
us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that
was awakened and invigorated by the idea of new society in which man's
mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually
unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities. It spurns the
alternative of a society that is tyrannical, conformist, irrational and
stagnant." 23
From the language of the specified 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. How is it to be
limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply
an acceptable criterion for permissible restriction. Thus: "These are the 'clear
and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be extremely serious and the degree of
imminence extremely high' before the utterance can be punished. The
danger to be guarded against is the 'substantive evil' sought to be
prevented." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous
tendency" rule and explained it thus: "If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words
are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts
be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable effect of
the utterance be to bring about the substantive evil which the legislative
body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC
create a danger sufficiently imminent to come under the two rules
mentioned above?" The choice of this Court was manifest and indisputable. It
adopted the clear and present danger test. As a matter of fact, in an earlier
decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of
the clear and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence." 26 For him the apprehended evil must
be "relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for
averting a relatively trivial harm to society." Justice Black would go further.
He would require that the substantive evil be "extremely serious." 27 Only
thus may there be a realization of the ideal envisioned by Cardozo: "There
shall be no compromise of the freedom to think one's thoughts and speak
them, except at those extreme borders where thought merges into action."
28 It received its original formulation from Holmes. Thus: "The question in
every case is whether the words used in such circumstances and 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." 29
This test then as a limitation on freedom of expression is justified by the
danger or evil a substantive character that the state has a right to prevent.
Unlike the dangerous tendency doctrine, the danger must not only be clear
but also present. The term clear seems to point to a causal connection with
the danger of the substantially evil arising from the utterance questioned.
Present refers to the time element. It used to be identified with imminent
and immediate danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits
abridgment by law of freedom of speech or of the press. It likewise extends
the same protection to the right of the people peaceably to assemble. As
was pointed out by Justice Malcolm in the case of United States v. Bustos, 30
this right is a necessary consequence of our republican institution and
complements the right of free speech. Assembly means a right on the part of
citizens to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and orderly
administration of government have demanded protection for public opinion."
To paraphrase the opinion of Justice Rutledge speaking for the majority in
Thomas v. Collins,31 it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guaranty with
the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights while not identical are
inseparable. They are cognate rights and the assurance afforded by the
clause of this section of the Bill of Rights wherein they are contained, applies
to all. As emphatically put in the leading case of United States v. Cruikshank,
32 "the very idea of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in respect to public
affairs and to petition for redress of grievances." As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress
has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for
purposes not contrary to law. 33 With or without a constitutional provision of
this character, it may be assumed that the freedom to organize or to be a
member of any group or society exists. With this explicit provision, whatever
doubts there may be on the matter are dispelled. Unlike the cases of other
guarantee which are mostly American in origin, this particular freedom has
an indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas that it is primarily the first
amendment of her Constitution, which safeguards freedom of speech and of
the press, of assembly and of petition "that provides [associations] with the
protection they need if they are to remain viable and continue to contribute
to our Free Society." 34 He adopted the view of De Tocqueville on the
importance and the significance of the freedom to associate. Thus: "The
most natural privilege of man, next to the right of acting for himself, is that
of combining his exertions with those of his fellow creatures and of acting in
common with them. The right of association therefore appears to me almost
inalienable in its nature as the right of personal liberty. No legislator can
attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De
Tocqueville. Since man lives in social it would be a barren existence if he
could not freely associate with others of kindred persuasion or of congenial
frame of mind. As a matter of fact, the more common form of associations
may be likely to be fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness and
isolation life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on
its political significance. If such a right were non-existent then the likelihood
of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority
groups may be outlawed, constitutional democracy as intended by the
Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately
of being in the majority or in the minority as the will of the electorate
dictates, will lose their constitutional protection. It is undeniable therefore,
that the utmost scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be
accorded a human personality but equally so for its assurance that the
wishes of any group to oppose whatever for the moment is the party in
power and with the help of the electorate to set up its own program of
government would not be nullified or frustrated. To quote from Douglas
anew: "Justice Frankfurter thought that political and academic affiliations
have a preferred position under the due process version of the First
Amendment. But the associational rights protected by the First Amendment
are in my view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion. In my
view, government can neither legislate with respect to nor probe the
intimacies of political, spiritual, or intellectual relationships in the myriad of
lawful societies and groups, whether popular or unpopular, that exist in this
country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that
there could be an abridgment of the right to form associations or societies
when their purposes are "contrary to law". How should the limitation "for
purposes not contrary to law" be interpreted? It is submitted that it is
another way of expressing the clear and present danger rule for unless an
association or society could be shown to create an imminent danger to public
safety, there is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course consistent with
the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he
embraces, and the people he associates with are no concern to government
— until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles
in mind, we now consider the validity of the prohibition in Republic Act No.
4880 of the too early nomination of candidates and the limitation found
therein on the period of election campaign or partisan political activity
alleged by petitioners to offend against the rights of free speech, free press,
freedom of assembly and freedom of association. In effect what are asked to
do is to declare the act void on its face evidence having been introduced as
to its actual operation. There is respectable authority for the court having the
power to so act. Such fundamental liberties are accorded so high a place in
our constitutional scheme that any alleged infringement manifest in the
wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot
ignore of course the legislative declaration that its enactment was in
response to a serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and likely to
continue unless curbed or remedied. To assert otherwise would be to close
one's eyes to the realities of the situation. Nor can we ignore the express
legislative purpose apparent in the proviso "that simple expressions of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign," and in the other proviso "that nothing herein
stated shall be understood to prevent any person from expressing his views
on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the
entire provision restricting the period of an election campaign or partisan
political activity.
The prohibition of too early nomination of candidates presents a question
that is not too formidable in character. According to the act: "It shall be
unlawful for any political party political committee, or political group to
nominate candidates for any elective public officio voted for at large earlier
than one hundred and fifty days immediately preceding an election, and for
any other elective public, office earlier than ninety days immediately
preceding an election." 40
The right of association is affected. Political parties have less freedom as to
the time during which they may nominate candidates; the curtailment is not
such, however, as to render meaningless such a basic right. Their scope of
legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such
a purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political
activity" calls for a more intensive scrutiny. According to Republic Act No.
4880: "It is unlawful for any person whether or not a voter or candidate, or
for any group or association of persons whether or not a political party or
political committee, to engage in an election campaign or partisan political
activity except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and ninety
days immediately preceding an election for any other elective public office.
The term 'candidate' refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its
candidate. The term 'election campaign' or 'partisan political activity' refers
to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional
infirmity of vagueness and may be stricken down. What other conclusion can
there be extending as it does to so wide and all-encompassing a front that
what is valid, being a legitimate exercise of press freedom as well as
freedom of assembly, becomes prohibited? That cannot be done; such an
undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory
vagueness may be applied to a statute having inhibiting effect on speech; a
man may the less be required to act at his peril here, because the free
dissemination of ideas may be the loser.41 Where the statutory provision
then operates to inhibit the exercise of individual freedom affirmatively
protected by the Constitution, the imputation of vagueness sufficient to
invalidate the statute is inescapable. 42 The language of Justice Douglas,
both appropriate and vigorous, comes to mind: "Words which are vague and
fluid ... may be as much of a trap for the innocent as the ancient laws of
Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are
delicate and vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that
the limitations thus imposed on the constitutional rights of free speech and
press, of assembly, and of association cut deeply, into their substance. This
on the one hand.
On the other, it cannot be denied either that evils substantial in character
taint the purity of the electoral process. There can be under the
circumstances then no outright condemnation of the statute. It could not be
said to be unwarranted, much less arbitrary. There is need for refraining
from the outright assumption that the constitutional infirmity is apparent
from a mere reading thereof.
For under circumstances that manifest abuses of the gravest character,
remedies much more drastic than what ordinarily would suffice would indeed
be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in
the appraisal of the aforesaid restrictions to which such precious freedoms
are subjected. They are not unaware of the clear and present danger that
calls for measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit
to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be
limited in scope.
There are still constitutional questions of a serious character then to be
faced. The practices which the act identifies with "election campaign" or
"partisan political activity" must be such that they are free from the taint of
being violative of free speech, free press, freedom of assembly, and freedom
of association. What removes the sting from constitutional objection of
vagueness is the enumeration of the acts deemed included in the terms
"election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate; (b) holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against a candidate or party;(c) making speeches, announcements or
commentaries or holding interviews for or against the election or any party
or candidate for public office; (d) publishing or distributing campaign
literature or materials; (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any party; (f) giving,
soliciting, or receiving contributions for election campaign purposes, either
directly or indirectly." 45 As thus limited the objection that may be raised as
to vagueness has been minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the
view that no unconstitutional infringement exists insofar as the formation of
organization, associations, clubs, committees, or other groups of persons for
the purpose of soliciting votes or undertaking any campaign or propaganda
or both for or against a candidate or party is restricted 47 and that the
prohibition against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from constitutional
infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or party, 49
leaving untouched all other legitimate exercise of such poses a more difficult
question. Nevertheless, after a thorough consideration, and with the same
Justices entertaining the opposite conviction, we reject the contention that it
should be annulled. Candor compels the admission that the writer of this
opinion suffers from the gravest doubts. For him, such statutory prescription
could very well be within the outermost limits of validity, beyond which lies
the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan
political activity" tax to the utmost the judicial predisposition to view with
sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression.
From the outset, such provisions did occasion divergence of views among
the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize
that the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and
present danger of a substantive evil, the debasement of the electoral
process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or indirectly,
by an individual, 51 the making of speeches, announcements or
commentaries or holding interview for or against the election for any party or
candidate for public office, 52 or the publication or distribution of campaign
literature or materials, 53 suffer from the corrosion of invalidity. It lacks
however one more affirmative vote to call for a declaration of
unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns.
The direful consequences and the harmful effects on the public interest with
the vital affairs of the country sacrificed many a time to purely partisan
pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was
further magnified.
Under the police power then, with its concern for the general welfare and
with the commendable aim of safe-guarding the right of suffrage, the
legislative body must have felt impelled to impose the foregoing restrictions.
It is understandable for Congress to believe that without the limitations thus
set forth in the challenged legislation, the laudable purpose of Republic Act
No. 4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that the above
poisons of the statute now assailed has passed the constitutional test is
devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against
the election of any party or candidate for public office and the prohibition of
the publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged
statute prohibits what under the Constitution cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that
otherwise could be justified under the clear and present danger doctrine, it is
the consideration opinion of the majority, though lacking the necessary vote
for an adjudication of invalidity, that the challenged statute could have been
more narrowly drawn and the practices prohibited more precisely delineated
to satisfy the constitutional requirements as to a valid limitation under the
clear and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the
Court could discern "an over breadth that makes possible oppressive or
capricious application" 55 of the statutory provisions, the line dividing the
valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose
constitutionally subject to control or prevent activities state regulation may
not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental purposes be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so
closely related to our most precious freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to
view the statutory provisions in question as unconstitutional on their face
inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court.
For this minority group, no judgment of nullity insofar as the challenged
sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their
latitudinarian scope, for Congress was not at all insensible to the problem
that an all-encompassing coverage of the practices sought to be restrained
would seriously pose.
Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Tañada, appearing before us as amicus curiae.
He did clearly explain that such provisions were deemed by the legislative
body to be part and parcel of the necessary and appropriate response not
merely to a clear and present danger but to the actual existence of a grave
and substantive evil of excessive partisanship, dishonesty and corruption as
well as violence that of late has invariably marred election campaigns and
partisan political activities in this country. He did invite our attention likewise
to the well-settled doctrine that in the choice of remedies for an admitted
malady requiring governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly repugnant
to fundamental rights, be ignored or disregarded.
More than that, he would stress the two provisos already mentioned,
precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of
assembly and of association. It is thus provided: "That simple expressions or
opinion and thoughts concerning the election shall not be considered as part
of an election campaign [and that nothing in the Act] shall be understood to
prevent any person from expressing his views on current political problems
or issues, or from mentioning the names of the candidates for public office
whom he supports. 60 If properly implemented then, as it ought to, the
barrier to free, expression becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution
commands as far as freedom of the mind and of association are concerned. It
is its opinion that it would be premature to say the least, for a judgment of
nullity of any provision found in Republic Act No. 4880. The need for
adjudication arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called upon, under
this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that
requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to
cleanse, and, if possible, render spotless, the electoral process. There is full
acceptance by the Court of the power of Congress, under narrowly drawn
legislation to impose the necessary restrictions to what otherwise would be
liberties traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are called upon
to safeguard individual rights. In the language of Justice Laurel: "This Court is
perhaps the last bulwark of constitutional government. It shall not obstruct
the popular will as manifested through proper organs... But, in the same way
that it cannot renounce the life breathed into it by the Constitution, so may it
not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital
interests. Considering the responsibility incumbent on the judiciary, it is not
always possible, even with the utmost sympathy shown for the legislative
choice of means to cure an admitted evil, that the legislative judgment
arrived at, with its possible curtailment of the preferred freedoms, be
accepted uncritically. There may be times, and this is one of them, with the
majority, with all due reject to a coordinate branch, unable to extend their
approval to the aforesaid specific provisions of one of the sections of the
challenged statute. The necessary two-third vote, however, not being
obtained, there is no occasion for the power to annul statutes to come into
play.
Such being the case, it is the judgment of this Court that Republic Act No.
4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied.
Without costs.
Blooming Mills6/22/11 9:55 AM
PBM EMPLOYEES VS. PBM [51 SCRA 189; G.R. NO. L-31195; 5 JUN 1993]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: The petitioner Philippine Blooming Mills Employees Organization
(PBMEO) is a legitimate labor union composed of the employees of the
respondent Philippine Blooming Mills Co., Inc., and petitioners. Benjamin
Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass
demonstration at Malacañang on March 4, 1969, in protest against alleged
abuses of the Pasig police. PBMEO thru Pagcu confirmed the planned
demonstration and stated that the demonstration or rally cannot be
cancelled because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with the
Company because the union has no quarrel or dispute with Management.
The Management, thru Atty. C.S. de Leon, Company personnel manager,
informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized that any demonstration for
that matter should not unduly prejudice the normal operation of the
Company. Workers who without previous leave of absence approved by the
Company, particularly , the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning shall
be dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike. Because the petitioners
and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers
should not be required to participate in the demonstration and that the
workers in the second and third shifts should be utilized for the
demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed a charge against
petitioners and other employees who composed the first shift, for a violation
of Republic Act No. 875(Industrial Peace Act), and of the CBA providing for
'No Strike and No Lockout.' Petitioners were held guilty in by CIR for
bargaining in bad faith, hence this appeal.
Issue: Whether or Not the petitioners right to freedom of speech and to
peaceable assemble violated.
Held: Yes. A constitutional or valid infringement of human rights requires a
more stringent criterion, namely existence of a grave and immediate danger
of a substantive evil which the State has the right to prevent. This is not
present in the case. It was to the interest herein private respondent firm to
rally to the defense of, and take up the cudgels for, its employees, so that
they can report to work free from harassment, vexation or peril and as
consequence perform more efficiently their respective tasks enhance its
productivity as well as profits. Herein respondent employer did not even offer
to intercede for its employees with the local police. In seeking sanctuary
behind theirfreedom of expression well as their right of assembly and of
petition against alleged persecution of local officialdom, the employees and
laborers of herein private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them by the Constitution— the
untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a
plea for the preservation merely of their property rights. The employees'
pathetic situation was a stark reality — abused, harassment and persecuted
as they believed they were by the peace officers of the municipality. As
above intimated, the condition in which the employees found themselves vis-
a-vis the local police of Pasig, was a matter that vitally affected their right to
individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being
broken in morale and brutalized in spirit-can never be fully evaluated in
monetary terms. As heretofore stated, the primacy of human rights
— freedom of expression, of peaceful assembly and of petition for redress of
grievances — over property rights has been sustained. To regard the
demonstration against police officers, not against the employer, as evidence
of bad faith in collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of the collective
bargaining agreement, is "a potent means of inhibiting speech" and
therefore inflicts a moral as well as mortal wound on
the constitutionalguarantees of free expression, of peaceful assembly and of
petition. Circulation is one of the aspects of freedom of expression. If
demonstrators are reduced by one-third, then by that much the circulation of
the Issue raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the rally.
Moreover, the absence of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will enervate
their position and abet continued alleged police persecution.
6/22/11 9:55 AM
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