1
EN BANC should he be so rash as to disobey.3Censorship may come in the form of prior restraint or subsequent
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.
CONCURRING OPINION
SANDOVAL–GUTIERREZ, J.:
"Where they have burned books,
they will end in burning human beings."
These are the prophetic words of the German Author Heinrich Heine when the Nazis fed to the flames
the books written by Jewish authors. True enough, the mass extermination of Jews followed a few years
later. What was first a severe form of book censorship ended up as genocide.
Today, I vote to grant the writs of certiorari and prohibition mindful of Heine’s prophecy. The issuance of
the Press Release by the National Telecommunications Commission (NTC) is a form of censorship. To
allow the broadcast media to be burdened by it is the first misstep leading to the strangling of our
citizens. We must strike this possibility while we still have a voice.
I fully concur with the well-written ponencia of Mr. Chief Justice Reynato S. Puno and that of Mr. Justice
Antonio T. Carpio.
The Universal Declaration of Human Rights guarantees that "everyone has the right to freedom of
opinion and expression." Accordingly, this right "includes the freedom to hold opinions without
interference and impart information and ideas through any media regardless of frontiers." 1 At the
same time, our Constitution mandates that "no law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people to peaceably assemble and petition the
government for redress of grievances."
These guarantees are testaments to the value that humanity accords to the above-mentioned freedoms
– commonly summed up as freedom of expression. The justifications for this high regard are specifically
identified by Justice Mclachlin of the Canadian Supreme Court in Her Majesty The Queen v. Keegstra,2 to
wit: (1) Freedom of expression promotes the free flow of ideas essential to political democracy and
democratic institutions, and limits the ability of the State to subvert other rights and freedoms; (2) it
promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is
intrinsically valuable as part of the self-actualization of speakers and listeners; and (4) it is justified by the
dangers for good government of allowing its suppression.
These are the same justifications why censorship is anathema to freedom of expression. Censorship is
that officious functionary of the repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to say on pain of punishment
punishment. Prior restraint means official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.4 Its most blatant form is a system of
licensing administered by an executive officer.5 Similar to this is judicial prior restraint which takes the
form of an injunction against publication.6 And equally objectionable as prior restraint is the imposition
of license taxes that renders publication or advertising more burdensome.7 On the other
hand, subsequent punishment is the imposition of liability to the individual exercising his freedom. It
may be in any form, such as penal, civil or administrative penalty.
I
The Issuance of the Press Release
Constitutes Censorship
In the case at bar, the first issue is whether the Press Release of the NTC constitutes censorship.
Reference to its pertinent portions is therefore imperative. Thus:
Considering that these taped conversations have not been duly authenticated nor could it be
said at this time that the tapes contain an accurate or truthful representation of what was
recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the
said taped conversations by radio and television stations is a continuing violation of the Anti-
Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to these radio and television stations. It has been subsequently established
that the said tapes are false and/or fraudulent after a prosecution or appropriate
investigation, the concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful misrepresentation shall be a just
cause for the suspension, revocation and /or cancellation of the licenses or authorizations
issued to said companies.
x xx x x x
The [NTC] will not hesitate, after observing the requirements of due process, to apply with
full force the provisions of said Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.
The threat of suspension, revocation and/or cancellation of the licenses or authorization hurled against
radio and television stations should they air the Garci Tape is definitely a form of prior restraint. The
license or authorization is the life of every media station. If withheld from them, their very existence is
lost. Surely, no threat could be more discouraging to them than the suspension or revocation of their
licenses. In Far Eastern Broadcasting v. Dans,8 while the need for licensing was rightly defended, the
defense was for the purpose, not of regulation of broadcast content, but for the proper allocation of
airwaves. In the present case, what the NTC intends to regulate are the contents of the Garci Tapes – the
alleged taped conversation involving the President of the Philippines and a Commissioner of the
Commission on Election. The reason given is that it is a "false information or willful misrepresentation."
As aptly stated by Mr. Justice Antonio T. Carpio that "the NTC action in restraining the airing of the Garci
Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes."
History teaches us that licensing has been one of the most potent tools of censorship. This powerful
bureaucratic system of censorship in Medieval Europe was the target of John Milton’s

speech Areopagita to the Parliament of England in 1644.9 Under the Licensing Act of 1643, all printing
presses and printers were licensed and nothing could be published without the prior approval of the
State or the Church Authorities. Milton vigorously opposed it on the ground of freedom of the press. His
strong advocacy led to its collapse in 1695. In the U.S., the first encounter with a law imposing a prior
restraint is in Near v. Minnesota.10 Here, the majority voided the law authorizing the permanent
enjoining of future violations by any newspaper or periodical if found to have published or circulated an
"obscene, lewd and lascivious" or "malicious, scandalous and defamatory" issue. While the dissenters
maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to
prohibitions of publication without advance approval of an executive official, the majority deemed the
difference of no consequence, since in order to avoid a contempt citation, the newspaper would have to
clear future publications in advance with the judge. In other similar cases, the doctrine of prior restraint
was frowned upon by the U.S. Court as it struck down loosely drawn statutes and ordinances requiring
licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the
licensor whether or not to issue them, and as it voided other restrictions on First Amendment
rights.11 Then there came the doctrine that prior licensing or permit systems were held to be
constitutionally valid so long as the discretion of the issuing official is limited to questions of times,
places and manners.12 And in New York Times Company v. United States,13 the same Court, applying the
doctrine of prior restraint from Near, considered the claims that the publication of the Pentagon Papers
concerning the Vietnam War would interfere with foreign policy and prolong the war too speculative. It
held that such claim could not overcome the strong presumption against prior restraints. Clearly,
content-based prior restraint is highly abhorred in every jurisdiction.
Another objectionable portion of the NTC’s Press Release is the warning that it will not hesitate "to apply
with full force the provisions of the Circulars and their accompanying sanctions on erring radio and
television stations and their owners/operators. This is a threat of a subsequent punishment, an equally
abhorred form of censorship. This should not also be countenanced. It must be stressed that the evils to
be prevented are not the censorship of the press merely, but any action of the government by means of
which it might prevent such free and general discussion of public matters as seems absolutely
essential to prepare the people for an intelligent exercise of their rights as citizens.14 There is logic in
the proposition that the liberty of the press will be rendered a "mockery and a delusion" if, while every
man is at liberty to publish what he pleases, the public authorities might nevertheless punish him for
harmless publications. In this regard, the fear of subsequent punishment has the same effect as that of
prior restraint.
It being settled that the NTC’s Press Release constitutes censorship of broadcast media, the next issue is
whether such censorship is justified.
II
The Issuance of the Press Release
Constitutes an Unjustified Form of Censorship
Settled is the doctrine that any system of prior restraint of expression comes to this Court bearing a
presumption against its constitutional validity.15 The Government thus carries a heavy burden of showing
justification for the enforcement of such a restraint.16
Various tests have been made to fix a standard by which to determine what degree of evil is sufficiently
substantial to justify a resort to abridgment of the freedom of expression as a means of protection and
2
how clear and imminent and likely the danger is. Among these tests are the Clear and Present Danger,
Balancing, Dangerous Tendency, Vagueness, Overbreadth, and Least Restrictive Means.
Philippine jurisprudence shows that we have generally adhered to the clear and present danger
test. Chief Justice Puno, in his ponencia, has concluded that the Government has not hurdled this test.
He cited four (4) reasons to which I fully concur.
The justification advanced by the NTC in issuing the Press Release is that "the taped Conversations have
not been duly authenticated nor could it be said at this time that the tape contains an accurate and
truthful representation of what was recorded therein" and that "its continuous airing or broadcast is a
continuing violation of the Anti-Wiretapping Law."
To prevent the airing of the Garci Tapes on the premise that their contents may or may not be true is not
a valid reason for its suppression. In New York Times v. Sullivan,17 Justice William Brennan, Jr. states that
the authoritative interpretation of the First Amendment guarantees have consistently refused to
recognize an exception for any test of truth –whether administered by judges, jurists, or administrative
officials -- and especially not one that puts the burden of proving truth on the speaker. He stressed
that "the constitutional protection does not turn upon the truth, popularity, or social utility of the
ideas and belief which are offered." Moreover, the fact that the tapes were obtained through violation
of the Anti-Wiretapping Law does not make the broadcast media privy to the crime. It must be stressed
that it was a government official who initially released the Garci Tapes, not the media.
In view of the presence of various competing interests, I believe the present case must also be calibrated
using the balancing test. As held in American Communication Association v. Douds,18 "when a particular
conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgement of speech, the duty of the courts is to determine which of these two
conflicting interests demand the greater protection under the circumstances presented. In the present
case, perched at the one hand of the scale is the government’s interest to maintain public order, while
on the other hand is the interest of the public to know the truth about the last national election and to
be fully informed. Which of these interests should be advanced? I believe it should be that of the people.
The right of the people to know matters pertaining to the integrity of the election process is of
paramount importance. It cannot be sideswiped by the mere speculation that a public disturbance will
ensue. Election is a sacred instrument of democracy. Through it, we choose the people who will govern
us. We entrust to them our businesses, our welfare, our children, our lives. Certainly, each one of us is
entitled to know how it was conducted. What could be more disheartening than to learn that there
exists a tape containing conversations that compromised the integrity of the election process. The doubt
will forever hang over our heads, doubting whether those who sit in government are legitimate officials.
In matters such as these, leaving the people in darkness is not an alternative course. People ought to
know the truth. Yes, the airing of the Garci Tapes may have serious impact, but this is not a valid basis for
suppressing it. As Justice Douglas explained in his concurring opinion in the New York Times, "the
dominant purpose of the First Amendment was to prohibit the widespread practice of governmental
suppression of embarrassing information. A debate of large proportions goes in the nation over our
posture in Vietnam. Open debate and discussion of public issues are vital to our national health."
More than ever, now is the time to uphold the right of the Filipinos to information on matters of public
concern. As Chief Justice Hughes observed: "The administration of government has become more
complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most
serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the

fundamental security of life and liberty by criminal alliances and official neglect, emphasize the primary
need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press
may be abused by miscreant purveyors of scandal does not make any less necessary the immunity of the
press from previous restraint in dealing with official misconduct."19 Open discussions of our political
leaders, as well as their actions, are essential for us to make informed judgments. Through these, we can
influence our government’s actions and policies. Indeed, no government can be responsive to its
citizens who have refrained from voicing their discontent because of fear of retribution.
III
A free press is an indispensable component of
a democratic and free society.
Burke once called the Press the Fourth Estate in the Parliament. This is because its ability to influence
public opinion made it an important source in the governance of a nation. It is considered one of the
foundations of a democratic society. One sign of its importance is that when a tyrant takes over a
country, his first act is to muzzle the press. Courts should therefore be wary in resolving cases that has
implication on the freedom of the press -- to the end that the freedom will never be curtailed absent a
recognized and valid justification.
In fine let it be said that the struggle for freedom of expression is as ancient as the history of censorship.
From the ancient time when Socrates was poisoned for his unorthodox views to the more recent Martial
Law Regime in our country, the lesson learned is that censorship is the biggest obstacle to human
progress. Let us not repeat our sad history. Let us not be victims again now and in the future.
WHEREFORE, I vote to CONCUR with the majority opinion.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
Facts:
As a consequence of the public release of copies of the “Hello Garci” compact disc audiotapes involving a
wiretapped mobile phone conversation between then-President Gloria Arroyo and Comelec
Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who
had copies of the CD and those broadcasting or publishing its contents could be held liable under the
Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a
continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the NBI to go
after media organizations “found to have caused the spread, the playing and the printing of the contents
of a tape.” Meanwhile, respondent NTC warned TV and radio stations that their broadcast/airing of such
false information and/or willful misrepresentation shall be a just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the said media establishments. Petitioner
Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and the NTC directly with
the Supreme Court.
3
Issues:
(1) Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the exercise
of freedom of speech and of the press?
(2) Did the mere press statements of respondents DOJ Secretary and the NTC constitute a form of
content-based prior restraint that has transgressed the Constitution?
Held:
(1) No, a purported violation of law such as the Anti-Wiretapping Law will not justify straitjacketing the
exercise of freedom of speech and of the press. A governmental action that restricts freedom of speech
or of the press based on content is given the strictest scrutiny, with the government having the burden
of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies
equally to all kinds of media, including broadcast media. Respondents, who have the burden to show
that these acts do not abridge freedom of speech and of the press, failed to hurdle the clear and present
danger test. For this failure of the respondents alone to offer proof to satisfy the clear and present
danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no
showing that the feared violation of the anti-wiretapping law clearly endangers the national security of
the State.
(2) Yes, the mere press statements of respondents DOJ Secretary and the NTC constituted a form of
content-based prior restraint that has transgressed the Constitution. It is not decisive that the press
statements made by respondents were not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in the exercise of their official
functions. Any act done, such as a speech uttered, for and on behalf of the government in an official
capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts
already converted to a formal order or official circular. Otherwise, the non formalization of an act into
an official order or circular will result in the easy circumvention of the prohibition on prior restraint.
FACTS:
In 2004, President Gloria Macapagal-Arroyo won in the presidential elections against her nearest rival,
Fernando Poe, Jr. Sometime in June 2005, dzMM radio station aired the Garci Tapes where the parties to
the conversation discussed “rigging” the results of the 2004 elections to favor President Arroyo. In a
press conference in Malacañang Palace, a recordings of alleged conversations between President Arroyo
and COMELEC Commissioner Garcillano was identified. Then DoJ Secretary Raul Gonzalez ordered the
NBI to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act
No. 4200 or the Anti-Wiretapping Law. The NTC, on one hand, issued a press release warning radio and
television stations that those who will air the Garci Tapes will face suspension or revocation of their
license. Petitioner Francisco I. Chavez, as citizen, filed a petition to nullify the “acts, issuances, and
orders” of the NTC and respondent Gonzalez on the grounds that it violated the freedom of expression
and the right of the people to information on matters of public concern.
ISSUE: Whether the NTC warning constitutes an impermissible prior restraint on freedom of expression.
 4

HELD:

When the issue involves freedom of expression, as in the present case, any citizen has the right to bring
suit to question the constitutionality of a government action in violation of freedom of expression,
whether or not the government action is directed at such citizen.

Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression
is an indispensable condition to the exercise of almost all other civil and political rights. No society can
remain free, open and democratic without freedom of expression. Freedom of expression guarantees
full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a
free and democratic society must zealously safeguard freedom of expression.

Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of
expression allows citizens to make informed choices of candidates for public office. Freedom of
expression crystallizes important public policy issues, and allows citizens to participate in the discussion
and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims
and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of
social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise
would not be heard by government. Freedom of expression provides a civilized way of engagement
among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he
might use his fist instead.

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of
expression:
“No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.”
Thus, the rule is that expression is not subject to any prior restraint or censorship because the
Constitution commands that freedom of expression shall not be abridged. Over time, however, courts
have carved out narrow and well defined exceptions to this rule out of necessity.

Exceptions:
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four
categories of expression namely:

1. pornography,
2. false or misleading advertisement,
3. advocacy of imminent lawless action, and
4. danger to national security.
All other expression is not subject to prior restraint. The history of press freedom has been a constant
struggle against the censor whose weapon is the suspension or cancellation of licenses to publish or
broadcast. The NTC warning resurrects the weapon of the censor. In sum, the NTC press release
constitutes an unconstitutional prior restraint on protected expression. There can be no content-based
prior restraint on protected expression. This rule has no exception.
 5

EN BANC And because linking with the internet opens up a user to communications from others, the ill-motivated
can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account
or credit card or defrauding him through false representations. The wicked can use the cyberspace, too,
G.R. No. 203335 February 11, 2014
for illicit trafficking in sex or for exposing to pornography guileless children who have access to the
internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO contain and punish wrongdoings.
SONIDO, JR., Petitioners,
vs.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
virtual dynamites that destroy those computer systems, networks, programs, and memories. The
NATIONAL BUREAU OF INVESTIGATION, Respondents.
government certainly has the duty and the right to prevent these tomfooleries from happening and
punish their perpetrators, hence the Cybercrime Prevention Act.
DECISION
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
ABAD, J.: cyberspace activities violate certain of their constitutional rights. The government of course asserts that
the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the prevent hurtful attacks on the system.
Cybercrime Prevention Act of 2012, unconstitutional and void.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
The Facts and the Case extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9,
2012, enjoining respondent government agencies from implementing the cybercrime law until further
orders.
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a
person can connect to the internet, a system that links him to other computers and enable him, among
other things, to: The Issues Presented

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
research, study, amusement, upliftment, or pure curiosity; certain acts as crimes and impose penalties for their commission as well as provisions that would enable
the government to track down and penalize violators. These provisions are:

2. Post billboard-like notices or messages, including pictures and videos, for the general public
or for special audiences like associates, classmates, or friends and read postings from them; a. Section 4(a)(1) on Illegal Access;

3. Advertise and promote goods or services and make purchases and payments; b. Section 4(a)(3) on Data Interference;

4. Inquire and do business with institutional entities like government agencies, banks, stock c. Section 4(a)(6) on Cyber-squatting;
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and
d. Section 4(b)(3) on Identity Theft;
5. Communicate in writing or by voice with any person through his e-mail address or
telephone. e. Section 4(c)(1) on Cybersex;

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing f. Section 4(c)(2) on Child Pornography;
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
g. Section 4(c)(3) on Unsolicited Commercial Communications;
since it could not filter out a number of persons of ill will who would want to use cyberspace technology
for mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him that people can h. Section 4(c)(4) on Libel;
read.
 6

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to
this standard, a legislative classification that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The
burden is on the government to prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as
well as other fundamental rights, as expansion from its earlier applications to equal protection.3

n. Section 13 on Preservation of Computer Data;

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially
o. Section 14 on Disclosure of Computer Data; a condemnable act – accessing the computer system of another without right. It is a universally
condemned conduct.4
p. Section 15 on Search, Seizure and Examination of Computer Data;
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
q. Section 17 on Destruction of Computer Data; employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target system’s security and report back to the owners
the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers
r. Section 19 on Restricting or Blocking Access to Computer Data; are the equivalent of independent auditors who come into an organization to verify its bookkeeping
records.5
s. Section 20 on Obstruction of Justice;
Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).
u. Section 26(a) on CICC’s Powers and Functions.

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

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.
Section 4(a)(3) provides:
The Rulings of the Court
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
Section 4(a)(1)

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
Section 4(a)(1) provides:

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
computer data, electronic document, or electronic data message, without right, including the
under this Act:
introduction or transmission of viruses.

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and
(1) Illegal Access. – The access to the whole or any part of a computer system without right. deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading
the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the
things that belong to others, in this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other
people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws because
they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of one’s
constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set
of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not
being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other literary device. For example,
supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would
punish for cyber-squatting both the person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it happens to be his real name. Petitioners
claim that, considering the substantial distinction between the two, the law should recognize the
difference.
7
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or
use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The
law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the
same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:
b) Computer-related Offenses:
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-
related identity theft violates the right to privacy and correspondence as well as the right to due process
of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would
be hindered from accessing the unrestricted user account of a person in the news to secure information
about him that could be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under
this Act:
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.
8
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design
involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no
other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate
white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly
or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer
system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under
this Act:
(c) Content-related Offenses:
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to
cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system. Actually,
ACPA’s definition of child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace.
But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece
of child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable
for producing child pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under
this Act:
(c) Content-related Offenses:
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic
communication with the use of computer system which seeks to advertise, sell, or offer for sale products
and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and
reliable way for the recipient to reject receipt of further commercial electronic
messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and
9
(cc) The commercial electronic communication does not purposely include
misleading information in any part of the message in order to induce the recipients
to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a "spam." The term referred to a Monty Python’s
Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the
person sending out spams enters the recipient’s domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people
might have interest in such ads. What matters is that the recipient has the option of not opening or
reading these mail ads. That is true with spams. Their recipients always have the option to delete or not
to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which
is not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a
fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under
this Act:
(c) Content-related Offenses:
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be devised in
the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed freedom
of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the offended parties happened to be public
figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the
truth of the statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.43
10
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel
against complainants who were public figures. Actually, the Court found the presence of malice in fact in
that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself,
but there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures
in the above case, cinema and television personalities, when it modified the penalty of imprisonment to
just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point
out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC)
cited its General Comment 34 to the effect that penal defamation laws should include the defense of
truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an
all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence
to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related
to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code
provisions on libel were enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense,
they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation
to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes.
It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence sufficiently
delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General
argues that plain, ordinary, and common usage is at times sufficient to guide law enforcement agencies
11
in enforcing the law.51 The legislature is not required to define every single word contained in the laws
they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in
the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking.56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an
open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on
Facebook, which can be made visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital content—which could be in the form of
text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular user’s posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just
reposting or republishing another person’s tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet café that may have provided the computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose
Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes,
this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the
latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to
both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on
it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if
Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its
unique circumstances and culture, such law will tend to create a chilling effect on the millions that use
this new medium of communication in violation of their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case
involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the
knowing transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use
of an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.
12
Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom
of speech for being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be overly broad. The
CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild
to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot adopt means
that will unnecessarily and broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with
it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law that
punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-
for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must
view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to
penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely
on the violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is
inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In
this case, the particularly complex web of interaction on social media websites would give law enforcers
such latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking
it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided
and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new
defamatory story against Armand like "He beats his wife and children," then that should be considered
an original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this information.70 As the
source of this information, is the user aiding the distribution of this communication? The legislature
needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.
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Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially since
the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully
attempts to commit this specific offense is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But this is not right. The hacker should not be
freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt
to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as
well as the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the
case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through
the use of information and communications technology and similar crimes committed using other
means. In using the technology in question, the offender often evades identification and is able to reach
far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each crime involves some
important act which is not an essential element of the other.74 With the exception of the crimes of online
libel and online child pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other
a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and
the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime
but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as
another means of publication.75 Charging the offender under both laws would be a blatant violation of
the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.
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Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act
of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not
exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is
not diluted or improperly wielded simply because at some prior time the act or omission was but an
element of another offense or might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that
data showing where digital messages come from, what kind they are, and where they are destined need
not be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the
right of every individual to privacy and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations affecting
privacy rights, courts should balance the legitimate concerns of the State against constitutional
guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to
put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of
reason that the government should be able to monitor traffic data to enhance its ability to combat all
sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt
legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It empowers
law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that
provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber criminals can quickly erase
their tracks. Those who peddle child pornography could use relays of computers to mislead law
15
enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the people’s right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that
those who oppose government collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the right
to live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to
the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one
claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society is prepared to
accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all sorts
of electronic devices to communicate with one another. Consequently, the expectation of privacy is to
be measured from the general public’s point of view. Without reasonable expectation of privacy, the
right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing
it closed, and sending it through the postal service. Those who post letters have no expectations that no
one will read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet fits together with other packets.93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the actual names
and addresses (residential or office) of the sender and the recipient, only their coded internet protocol

(IP) addresses. The packets travel from one computer system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other person’s
cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals his cellphone number to the
service provider when he puts his call through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain
traffic data that are needed for a successful cyberspace communication. The conveyance of this data
takes them out of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can
then be used to create profiles of the persons under surveillance. With enough traffic data, analysts may
be able to determine a person’s close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law
provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of
the police. Replying to this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due
cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable commission of a particular crime. It just says,
"with due cause," thus justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used
16
to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While
it says that traffic data collection should not disclose identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands
from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that would authorize the search of what is akin to a
"moving vehicle." But warrantless search is associated with a police officer’s determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that
unless the search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section
12 is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical or
even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian society."96 The Court must ensure that
laws seeking to take advantage of these technologies be written with specificity and definiteness as to
ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum

period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six
(6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case,
the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a form
of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users
from accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has
an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction
and those relating to content data for at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscriber’s
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
17
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search,
seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat
on the rights of the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear
up the service provider’s storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the user’s right against deprivation of property without due process of law. But, as already
stated, it is unclear that the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should
have saved them in his computer when he generated the data or received it. He could also request the
service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the service
provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer
data under its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is
18
not enough for him to be of the opinion that such content violates some law, for to do so would make
him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely requires
that the data to be blocked be found prima facie in violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can actually be made to apply in relation to any penal provision.
It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829
with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law
enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
 19

Sections 24 and 26(a) provide: c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation 2. VALID and CONSTITUTIONAL:
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
a. Section 4(a)(1) that penalizes accessing a computer system without right;
cybersecurity plan.

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

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

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission
to the prejudice of others;
of cybercrime offenses through a computer emergency response team (CERT); x x x.

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
to another;
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity
for favor or consideration;
In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the f. Section 4(c)(2) that penalizes the production of child pornography;
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate
guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal
the delegation from running riot.103 Code are committed with the use of information and communications technologies;

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a h. Section 8 that prescribes the penalties for cybercrimes;
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.
i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and user’s assets.104 This definition serves as the parameters within which CICC should work j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;
in formulating the cybersecurity plan.
k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and warrant;
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been of the prescribed holding periods;
considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
WHEREFORE, the Court DECLARES:
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
1. VOID for being UNCONSTITUTIONAL:
o. Section 26(a) that defines the CICC’s Powers and Functions; and
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to
the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4)
on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.
SO ORDERED.
FACTS:
Petitioners lament that libel provisions of the penal code and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of “presumed malice” even when the latest
jurisprudence already replaces it with the higher standard of “actual malice” as a basis for conviction.
Petitioners argue that inferring “presumed malice” from the accused’s defamatory statement by virtue
of Article 354 of the penal code infringes on his constitutionally guaranteed freedom of expression.
ISSUE: Whether or not Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel affected the
requirement of “actual malice” as opposed to “presumed malice” as basis for conviction of libel.
RULING:
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
20
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of “malice” to convict the
author of a defamatory statement where the offended party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion of public affairs.
But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement. For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.
Case Summary and Outcome
The Supreme Court of Philippines declared Sections 4(c)(3), 12, and 19 of the Cybercrime Prevention Act
of 2012 as unconstitutional. It held that Section 4(c)(3) violated the right to freedom of expression by
prohibiting the electronic transmission of unsolicited commercial communications. It found Section 12
in violation of the right to privacy because it lacked sufficient specificity and definiteness in collecting
real-time computer data. It struck down Section 19 of the Act for giving the government the authority to
restrict or block access to computer data without any judicial warrant.
Facts
The case arises out of consolidated petitions to the Supreme Court of the Philippines on the
constitutionality of several provisions of the Cybercrime Prevention Act of 2012, Act No. 10175.
The Petitioners argued that even though the Act is the government’s platform in combating illegal
cyberspace activities, 21 separate sections of the Act violate their constitutional rights, particularly the
right to freedom of expression and access to inforamtion.
In February 2013, the Supreme Court extended the duration of a temporary restraining order against the
government to halt enforcement of the Act until the adjudication of the issues.
Decision Overview
Justice Abad delivered the Court’s opinion.
The government of Philippines adopted the Cybercrime Prevention Act of 2012 for the purpose of
regulating access to and use of cyberspace. Several sections of the law define relevant cyber crimes and
enable the government to track down and penalize violators.
Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of the Act as
unconstitutional.
Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic communications,
commonly known as spams, that seek to advertise, sell, or offer for sale of products and services unless
the recipient affirmatively consents, or when the purpose of the communication is for service or
administrative announcements from the sender to its existing users, or “when the following conditions
 21

are present: (aa) The commercial electronic communication contains a simple, valid, and reliable way for
the recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source; (bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and (cc) The commercial electronic communication does not purposely include
misleading information in any part of the message in order to induce the recipients to read the
message.”
The government argued that unsolicited commercial communications amount to both nuisance and
trespass because they tend to interfere with the enjoyment of using online services and that they enter
the recipient’s domain without prior permission.
The Court first noted that spams are a category of commercial speech, which does not receive the same
level of protection as other constitutionally guaranteed forms of expression ,”but is nonetheless entitled
to protection.” It ruled that the prohibition on transmitting unsolicited communications “would deny a
person the right to read his emails, even unsolicited commercial ads addressed to him.” Accordingly,
the Court declared Section4(c)(3) as unconstitutional.
the law as “virtually limitless, enabling law enforcement authorities to engage in “fishing expedition,”
choosing whatever specified communication they want.”
Accordingly, the Court struck down Section 12 for lack of specificity and definiteness as to ensure respect
for the right to privacy.
Section 19 authorizes the Department of Justice to restrict or block access to a computer data found to
be in violation of the Act. The Petitioners argued that this section also violated the right to freedom of
expression, as well as the constitutional protection against unreasonable searches and seizures.
The Court first recognized that computer data constitutes a personal property, entitled to protection
against unreasonable searches and seizures. Also, the Philippines’ Constitution requires the government
to secure a valid judicial warrant when it seeks to seize a personal property or to block a form of
expression. Because Section 19 precluded any judicial intervention, the Court found it unconstitutional.

Section 12 of the Act authorizes the law enforcement without a court warrant “to collect or record traffic
data in real-time associated with specified communications transmitted by means of a computer
system.” Traffic data under this Section includes the origin, destination, route, size, date, and duration
of the communication, but not its content nor the identity of users.

The Petitioners argued that such warrantless authority curtails their civil liberties and set the stage for
abuse of discretion by the government. They also claimed that this provision violates the right to privacy
and protection from the government’s intrusion into online communications.

According to the Court, since Section 12 may lead to disclosure of private communications, it must
survive the rational basis standard of whether it is narrowly tailored towards serving a government’s
compelling interest. The Court found that the government did have a compelling interest in preventing
cyber crimes by monitoring real-time traffic data.

As to whether Section 12 violated the right to privacy, the Court first recognized that the right at stake
concerned informational privacy, defined as “the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.” In determining whether a communication is
entitled to the right of privacy, the Court applied a two-part test: (1) Whether the person claiming the
right has a legitimate expectation of privacy over the communication, and (2) whether his expectation of
privacy can be regarded as objectively reasonable in the society.

The Court noted that internet users have subjective reasonable expectation of privacy over their
communications transmitted online. However, it did not find the expectation as objectively reasonable
because traffic data sent through internet “does not disclose the actual names and addresses (residential
or office) of the sender and the recipient, only their coded Internet Protocol (IP) addresses.”

Even though the Court ruled that real-time traffic data under Section 12 does not enjoy the objective
reasonable expectation of privacy, the existence of enough data may reveal the personal information of
its sender or recipient, against which the Section fails to provide sufficient safeguard. The Court viewed

THIRD DIVISION
G.R. No. 155282 January 17, 2005
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,
vs.
ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as
amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-
CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda, respondents, assailing
the (a) Decision dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial
Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of
the television (TV) program "The Inside Story" produced and hosted by respondent Legarda. It depicted
female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of
the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The
Philippine Women’s University (PWU) was named as the school of some of the students involved and the
facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode.
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman,
Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter-
complaints3 with petitioner MTRCB. Both complainants alleged that the episode besmirched the name of
the PWU and resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB
Investigating Committee, alleging among others, that respondents (1) did not submit "The Inside Story"
to petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 74 of
Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB
Rules and Regulations.8
In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news
documentary and socio-political editorial," the airing of which is protected by the constitutional
provision on freedom of expression and of the press. Accordingly, petitioner has no power, authority
and jurisdiction to impose any form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties’ memoranda, the MTRCB Investigating
Committee rendered a Decision, the decretal portion of which reads:
22
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY
THOUSAND PESOS (₱20,000.00) for non-submission of the program, subject of this case for review and
approval of the MTRCB.
Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of the ABS-CBN
Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing;
otherwise the Board will act accordingly."101awphi1.nét
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated
March 12, 1993 affirming the above ruling of its Investigating Committee.11 Respondents filed a motion
for reconsideration but was denied in a Resolution dated April 14, 1993.12
Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77,
Quezon City. It seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of
P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the
alternative) exclude the "The Inside Story" from the coverage of the above cited provisions; and (3) annul
and set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993.
Respondents averred that the above-cited provisions constitute "prior restraint" on respondents’
exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the
above cited provisions do not apply to the "The Inside Story" because it falls under the category of
"public affairs program, news documentary, or socio-political editorials" governed by standards similar to
those governing newspapers.
On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive portion of
which reads:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated
March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986
and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program "The Inside
Story" and other similar programs, they being public affairs programs which can be equated
to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their
behalf.
SO ORDERED."
Petitioner filed a motion for reconsideration but was denied.24
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs,
including "public affairs programs, news documentaries, or socio-political editorials," are subject to

petitioner’s power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Court’s ruling
in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are more accessible to the public
than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioner’s
power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior
restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents’ constitutional
freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside
Story" prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced
as follows:
"SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers and duties:
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.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the
motion pictures, television programs and publicity materials subject of the preceding paragraph, which,
in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end and that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof
shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast by television;
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to
review the television program "The Inside Story." The task is not Herculean because it merely resurrects
this Court En Banc’sruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni Cristo sought
exception from petitioner’s review power contending that the term "television programs" under Sec. 3
(b) does not include "religious programs" which are protected under Section 5, Article III of the
Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives
petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase
"all television programs," thus:
23
"The law gives the Board the power to screen, review and examine all ‘television programs.’ By the
clear terms of the law, the Board has the power to ‘approve, delete x x x and/or prohibit the x x x
exhibition and/or television broadcast of x x x television programs x x x.’ The law also directs the Board
to apply ‘contemporary Filipino cultural values as standard’ to determine those which are objectionable
for being ‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime.’"
Settled is the rule in statutory construction that where the law does not make any exception, courts may
not except something therefrom, unless there is compelling reason apparent in the law to justify it.28 Ubi
lex non distinguit nec distinguere debemos. Thus, when the law says "all television programs," the word
"all" covers all television programs, whether religious, public affairs, news documentary, etc.29 The
principle assumes that the legislative body made no qualification in the use of general word or
expression.30
It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the
MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term "television programs" on the ground
that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial"
protected under Section 4,31 Article III of the Constitution. Albeit, respondent’s basis is not freedom of
religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni
Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court
declared that freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs x x x." Yet despite the fact that freedom of religion
has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristo’sreligious
program from petitioner’s review power.
Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on
freedom of speech and of the press. However, there has been no declaration at all by the framers of the
Constitution that freedom of expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review
power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside
Story" which, according to respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly mentioned in Section 7 of P.
D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or
its departments and agencies, and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to exhibit or
cause to be exhibited in any moviehouse, theatre, or public place or by television within the Philippines
any motion picture, television program or publicity material, including trailers, and stills for lobby
displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed
by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or
public place or by television a label or notice showing the same to have been officially passed by the
BOARD when the same has not been previously authorized, except motion pictures, television programs

or publicity material imprinted or exhibited by the Philippine Government and/or its departments and
agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under
the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels as short motion
picture films portraying or dealing with current events.33 A glance at actual samples of newsreels shows
that they are mostly reenactments of events that had already happened. Some concrete examples are
those of Dziga Vertov’s Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a
term that was later translated literally into the French cinema verite) and Frank Capra’s Why We Fight
series.34 Apparently, newsreels are straight presentation of events. They are depiction of "actualities."
Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as
"straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk
shows on a given issue are not considered newsreels."36Clearly, the "The Inside Story" cannot be
considered a newsreel. It is more of a public affairs program which is described as a variety of news
treatment; a cross between pure television news and news-related commentaries, analysis and/or
exchange of opinions.37 Certainly, such kind of program is within petitioner’s review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The
Inside Story." Clearly, we are not called upon to determine whether petitioner violated Section 4, Article
III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of
speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program.
Neither did it cancel respondents’ permit. Respondents were merely penalized for their failure to submit
to petitioner "The Inside Story" for its review and approval. Therefore, we need not resolve whether
certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents
contravene the Constitution.
Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and
Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no
question involving the constitutionality or validity of a law or governmental act may be heard and
decided by the court unless there is compliance with the legal requisites for judicial inquiry,
namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case
or controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the
decision on the constitutional or legal question must be necessary to the determination of the case
itself.38
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November
18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of
petitioner MTRCB is AFFIRMED. Costs against respondents.
SO ORDERED.
24
Facts:
Respondent abs-cbn aired “Prosti-tuition”, an episode of the TV program “The Inside Story” produced
and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes to enable
them to pay for their tuition fees.
PWU was named as the school of some of the students involved and the façade of the PWU building
served as the background of the episode. This caused upsoar in the PWU community and they filed a
letter-complaint to the MTRCB.
MTRCB alleged that respondents
1) Did not submit “the inside story” to petitioner for review
2) Exhibited the same without its permission, thus violating sec 7 of PD 1986 and some sections of
MTRCB rules and regulations
ABS-CBN averred:
1) The Inside Story is a public affairs program, news documentary and socio-political editorial, its airing is
protected by the constitutional provision on freedom of expression and of the press
2) Petitioners has no power, authority and jurisdiction to impose any form of prior restraint upon
respondents.
After hearing and submission of the parties’ memoranda, MTRCB investigating committee ordered the
respondents to pay P20,000 for non-submission of the program. MTRCB affirmed the ruling.
Respondents filed a special civil action for certiorari with RTC QC. RTC rendered a decision in favor of
respondents, annulling and setting aside the decision and resolution of the MTRCB and declaring and
decreeing that certain sections of PD 1986 & MTRCB do not cover the TV program “Inside Story”, they
being a public affairs programs which can be equated to a newspaper. Hence, this petition.
Issue: Whether the MTRCB has the power or authority to review the “Inside Story” prior its exhibition or
broadcast by TV.
Held:
Sec 3 of PD 1986 enumerates the powers, functions and duties of the board:
b) to screen, review and examine all motion pictures herein defined, TV programs, including publicity
materials
The court in INC v. CA rules that PD 1986 gives MTRCB the power to screen, review and examine ALL TV
PROGRAMS
*LESSON* where the law does not make any exceptions, courts may not exempt something therefrom,
unless there is compelling reason apparent in the law to justify it.
Thus, when the law says “all TV programs”, the word all covers all tv programs whether religious, public
affairs, news docu, etc
It then follows that since the Inside Story is a TV Program, MTRCB has the power to review it
The only exemptions from the MTRCB’s power to review are those mentioned in Sec 7 of PD 1986
1) TV programs imprinted or exhibited by Phil govt and/or departments and agencies
2) Newsreels
In a desperate attempt to be exempted, respondents content that Inside Story falls under the category
of newsreels.
MTRCB rules and reg defines newsreels as “straight news reporting, as distinguished from
analyses, commentaries, and opinions. Talk shows on a given issue are not considered newsreels.

Clearly, Inside Story is not a newsreel but more of a public affairs program and within petitioner’s power
of review.
Issue related to Consti law:
Petitioner’s power to review television programs under Section 3(b) of P. D. No. 1986 does not amount
to “prior restraint.”
Ratio:
It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been
accorded a preferred status by the framers of our fundamental laws, past and present, “designed to
protect the broadest possible liberty of conscience, to allow each man to believe as
his conscience directs x x x.” Yet despite the fact that freedom of religion has been accorded a preferred
status, still this Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review
power.
Respondents claim that the showing of “The Inside Story” is protected by the constitutional provision on
freedom of speech and of the press. However, there has been no declaration at all by the framers of the
Constitution that freedom of expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review
power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom “The Inside
Story” which, according to respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly mentioned in Section 7 of P.
D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or
its departments and agencies, and (2) newsreels.
Facts:
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired “Prosti-tuition,” an episode of
the television (TV) program “The Inside Story” produced and hosted by respondent Legarda. It depicted
female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of
the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The
Philippine Women’s University (PWU) was named as the school of some of the students involved and the
facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode.
The showing of “The Inside Story” caused uproar in the PWU community. Dr. Leticia P. de Guzman,
Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter-
complaints with petitioner MTRCB. Both complainants alleged that the episode besmirched the name of
the PWU and resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB
Investigating Committee, alleging among others, that respondents did not submit “The Inside Story” to
petitioner for its review and exhibited the same without its permission, thus, violating Section 7 of
Presidential Decree (P.D.) No. 1986 and Section 3, Chapter III and Section 7, Chapter IV of the MTRCB
Rules and Regulations.
On February 5, 1993, after hearing and submission of the parties’ memoranda, the MTRCB Investigating
Committee rendered a Decision, the decretal portion of which reads:
25
“WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY
THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and
approval of the MTRCB.
Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of the ABS-CBN
Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing;
otherwise the Board will act accordingly.”
Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77,
Quezon City. It seeks to: declare as unconstitutional Sections 3(b), 3(c), 3(d), 4, 7, and 11 of P. D. No.
1986 and Sections 3, 7, and 28 (a) of the MTRCB Rules and Regulations; (in the alternative) exclude the
“The Inside Story” from the coverage of the above cited provisions; and annul and set aside the MTRCB
Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the
above-cited provisions constitute “prior restraint” on respondents’ exercise of freedom of expression
and of the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply
to the “The Inside Story” because it falls under the category of “public affairs program, news
documentary, or socio-political editorials” governed by standards similar to those governing newspapers.
The RTC rendered a decision in favour of the respondent.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs,
including “public affairs programs, news documentaries, or socio-political editorials,” are subject to
petitioner’s power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Court’s ruling in
Iglesia ni Cristo vs. Court of Appeals; second, television programs are more accessible to the public than
newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioner’s
power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to “prior
restraint;” and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents’ constitutional
freedom of expression and of the press.
Issue: Whether the MTRCB has the power or authority to review the “The Inside Story” prior to its
exhibition or broadcast by television?
Ruling:
Settled is the rule in statutory construction that where the law does not make any exception, courts may
not except something therefrom, unless there is compelling reason apparent in the law to justify it. Ubi
lex non distinguit nec distinguere debemos. Thus, when the law says “all television programs,” the word
“all” covers all television programs, whether religious, public affairs, news documentary, etc. The
principle assumes that the legislative body made no qualification in the use of general word or
expression.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review “The
Inside Story.” Clearly, we are not called upon to determine whether petitioner violated Section 4, Article
III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of
speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the
program. Neither did it cancel respondents’ permit. Respondents were merely penalized for their
failure to submit to petitioner “The Inside Story” for its review and approval. Therefore, we need not
resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by
respondents contravene the Constitution.
Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and
Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no
question involving the constitutionality or validity of a law or governmental act may be heard and
 26

decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1)
that the question must be raised by the proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the
decision on the constitutional or legal question must be necessary to the determination of the case itself.

WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated November 18, 1997 and
Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner
MTRCB is AFFIRMED. Costs against respondents.

FACTS:

An episode of “The Inside Story” entitled “Prosti-tuition,” produced by Loren Legarda was aired by ABS-
CBN depicting female students moonlighting as prostitutes to enable them to pay for their tuition fees.
Philippine Women’s University (PWU) was named as the school of some of the students involved. MTRCB
alleged that the episode besmirched the name of the PWU and respondents did not submit “The Inside
Story” to MTRCB for review and exhibited the same without its permission, violating Sec. 7 of PD 1986,
Sec. 3, Chapter III and Sec. 7, Chapter IV of MTRCB Rules and Regulations.

MTRCB declared that all subsequent programs of the “The Inside Story” and all other programs of the
ABS-CBN Ch. 2 of the same category shall be submitted to the Board of Review and Approval before
showing. On appeal, RTC ruled that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and
28 (a) of the MTRCB Rules and Regulations are unconstitutional for violating the freedom of expression
and of the press guaranteed by the Constitution

ISSUE : Whether or not there is compliance with the legal requisites for judicial inquiry so as to proceed
with the issue on constitutionality.

RULING:

NO. There is no need to resolve whether certain provisions of PD 1986 and MTRCB Rules and Regulations
contravene the Constitution. No question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the court unless there is compliance with the legal
requisites for judicial inquiry: 1) proper party 2)actual case or controversy 3) question raised at the
earliest possible opportunity and 4) that the decision on the constitutional or legal question must be
necessary to the determination of the case itself. The fourth requisite is wanting. MTRCB did not
disapprove or ban the showing of the program nor did it cancel respondents’ permit. The latter was
merely penalized for their failure to submit the program to MTRCB for its review and approval.
Therefore, the issue of constitutionality is not necessary to the determination of the case itself.

EN BANC
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997
Rules of Civil Procedure praying that respondent Commission on Elections' Resolution No. 96742 dated
April 23, 2013 be nullified and set aside and that the Commission on Elections be permanently enjoined
from enforcing the same Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia,
Inc. for violating it or otherwise compelling compliance with it.3
Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS)
and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms of similar circumstance"4 to submit to
COMELEC the names of all commissioners and payors of all surveys published from February 12, 2013 to
April 23, 2013, including those of their "subscribers."5
SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of
pre-election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election
survey on voters' preferences for senatorial candidates. Thereafter, it published its findings.7 The
following question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga
SENADOR ng PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop
na oval katabi ng pangalan hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng
hanggang labindalawang (12) kandidato.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most probably vote for as SENATORS of the
PHILIPPINES? Here is a list of candidates. Please shade the oval beside the name of the persons you
would most likely vote for. You may choose up to twelve (12) candidates.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)
On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United
Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of COMELEC's Law Department.9 In his
letter,10 Tiangco asked COMELEC to "compel [SWS] to either comply with the directive in the Fair Election
Act and COMELEC Resolution No. 9[6]1[5] and give the names or identities of the subscribers who paid
for the [pre-election survey conducted from February 15 to February 17, 2013], or be liable for the
violation thereof, an act constitutive of an election offense."11
27
Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among others, that he "be
furnished the identity of persons who paid for the [pre-election survey conducted from February 15 to
February 17, 2013] as well as those who subscribed to it."12 Sometime in March 2013, SWS supposedly
replied to Tiangco, "furnishing [him] with some particulars about the survey but [without] disclosing] the
identity of the persons who commissioned or subscribed to the survey."13
Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En
Bane issued the Order14 dated April 10, 2013 setting the matter for hearing on April 16, 2013. The same
Order directed SWS to submit its Comment within three (3) days of receipt.15 On April 12, 2013, Pulse
Asia received a letter from COMELEC "requesting its representative to attend the COMELEC hearing on
16 April 2013."16
SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr.
(COMELEC Chairman Brillantes) stated that the proceeding was merely a clarificatory hearing and not a
formal hearing or an investigation.17
On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire dispositive portion of
this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT the
SWS, Pulse Asia and other survey firms of similar circumstance to submit within three (3) days from
receipt of this Resolution the names of all commissioners and payors of surveys published from February
12, 2013 to the date of the promulgation of this Resolution for copying and verification by the
Commission. The submission shall include the names of all "subscribers" of those published surveys.
Such information/data shall be for the exclusive and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must
be accompanied by all the information required in Republic Act no. 9006, including the names of
commissioners, payors and subscribers.
This resolution shall take effect immediately after publication.
A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or
the Fair Election Act.18 (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the 1987 Constitution and
Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise known as the Fair Election Act, as implemented
by COMELEC Resolution No. 9615.21
SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as of their filing
before this court of the present Petition, they had not been furnished copies of Resolution No.
9674.22(They emphasized that while a certified true copy of this Resolution was attached to their
Petition, this was a copy which they themselves secured "for the purpose of complying.with the
requirement that Rule 65 petitions must be accompanied by a certified true copy of the assailed order or
resolution[.]"23)
In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman Brillantes that they
had not received a copy of Resolution No. 9674. They also articulated their view that Resolution No.
9674 was tainted with irregularities, having been issued ultra vires (i.e., in excess of what the Fair
Election Act allows) and in violation of the non-impairment of contracts clause of the Constitution. They
also expressed their intention to bring the matter before this court on account of these supposed
irregularities. Thus, they requested that COMELEC defer or hold in abeyance Resolution No. 9674's

enforcement.25
On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also to Pulse Asia)
directing it to furnish COMELEC with a list of the names of all "commissioners, subscribers, and payors of
surveys published from February 12, 2013 until April 23, 2013."27 SWS was warned that failure to comply
with the Notice shall constitute an election offense punishable under the Omnibus Election Code.28
On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a Complaint "for
violation of Section 264[,] par. 1 and 2 of the Omnibus Election Code30 in relation to R.A. 9006"31 was
filed against them. (This was docketed as E.O. Case No. 13-222). They were also directed to appear and
to submit their counter-affidavits and other supporting documents at the hearing set on August 6,
2013.32
SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a
criminal case had been filed against them. They added that they were never furnished copies of the
relevant criminal Complaint.33
On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the present
Petition.34 They assail Resolution No. 9674 as having been issued ultra vires. They are of the position that
Resolution No. 9674, in requiring the submission of information on subscribers, is in excess of what the
Fair Election Act requires.35 Likewise, they, assert that Resolution No. 9674 transgresses the Fair Election
Act in making itself executory immediately after publication.36 Moreover, they claim that it violates the
non-impairment of contracts clause of the Constitution,37 and was enforced in violation of their right to
due process (as they were charged with its violation despite not having been properly served with copies
of the complaint filed against them).38 Petitioners pray for the issuance of a temporary restraining order
and/or writ of preliminary injunction in the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on the Petition. In
the same Resolution, this court issued a temporary restraining order "enjoining the enforcement of
COMELEC Resolution No. 9674 with respect to submission of the names of regular subscribers but not to
the submission of (1) the names of specific subscribers for the limited period of February 12, 2013 to
April 23, 2013 who have paid a substantial amount of money for access to survey results and privileged
survey data; and (2) the names of all commissioners and payors of surveys published within the same
period."41
On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners filed their Joint
Reply.43
In this court's February 18, 2014 Resolution,44 the present Petition was given due course, and the parties
were directed to file their memoranda. Petitioners complied on May 16, 201445 and COMELEC on June
25, 2014.46
For resolution are the following issues:
First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the names of
"subscribers" of election surveys;
Second, whether the rights of petitioners to free speech will be curtailed by the requirement to submit
the names of their subscribers;
Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the names of their
subscribers, violates the constitutional proscription against the impairment of contracts (Article II,
28
Section 10);
Fourth, whether at the time petitioners were required by COMELEC to reveal the names of the
subscribers to their election surveys, Resolution No. 9674 was already in force and effect; and
Lastly, whether COMELEC deprived petitioners of due process of law when it:
a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election
offense; and
b) refused to specify the election offense under which they were being prosecuted.
We sustain the validity of Resolution No. 9674. The names of those who commission or pay for election
surveys, including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair
Election Act. This requirement is a valid regulation in the exercise of police power and effects the
constitutional policy of "guarantee[ing] equal access to opportunities for public service[.]"47 Section
5.2(a)'s requirement of disclosing subscribers neither curtails petitioners' free speech rights nor violates
the constitutional proscription against the impairment of contracts.
However, it is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair
Election Act. Petitioners were also not served a copy of Resolution No. 9674 with which they were asked
to comply. They were neither shown nor served copies of the criminal Complaint subject of E.O. Case No.
13-222. Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including
those who did not commission or pay for a specific survey or cause its publication, for being ultra vires.
They maintain that the Fair Election Act "as it was written by Congress covers only those who
commission or pay for a particular election survey, and requires disclosure of their names only when that
particular survey is published."48 From this, they add that COMELEC exceeded its authority � "creating]
an election offense where there was none before"49 � in considering as an election offense any violation
of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws and regulations relative to the conduct of an
election[.]"51 It adds that "as the specialized constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair
Election Act is "entitled to great weight and respect."53 Citing the supposed legislative intent of Section
5.2 as "broaden[ing] the subject of disclosure,"54 COMELEC claims that Section 5.2(a) "draws no
distinction between the direct payors and the indirect payors of the survey."55 It adds that requiring the
disclosure of survey subscribers addresses the requirement of reporting election expenditures by
candidates and political parties, thereby helping COMELEC check compliance with this requirement.56
Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text but also with the
purpose for which it, along with the Fair Election Act, was adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring] equal
opportunity for public service"57 and to this end, stipulates mechanisms for the "supervision] or
regulation of] the enjoyment or utilization of all franchises or permits for the operation of media of
communication or information[.]"58 Hence, its short title: Fair Election Act.
Situated within the constitutional order, the Fair Election Act provides means to realize the policy
articulated in Article II, Section 26 of the 1987 Constitution to "guarantee equal access to opportunities

for public service[.]" Article II, Section 26 models an understanding of Philippine political and electoral
reality. It is not merely hortatory or a statement of value. Among others, it sums up an aversion to the
perpetuation of political power through electoral contests skewed in favor of those with resources to
dominate the deliberative space in any media.
Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act represents the
legislature's compliance with the requirement of Article XIII, Section 1: "Congress . . . give[s] highest
priority to the enactment of measures that. . . reduce . . . political inequalities ... by equitably diffusing
wealth and political power for the common good."59
Moreover, the constitutional desire to "guarantee equal access to opportunities for public service"60
is
the same intent that animates the Constitution's investiture in COMELEC of the power to "supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary."61
Specific provisions in the Fair Election Act regulate the means through which candidates for elective
public office, as well as political parties and groups participating in the party-list system, are able to make
themselves known to voters, the same means through which they earn votes.
Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published or printed, and
broadcast election propaganda.63 Section 6 governs access to media time and space.64 Sections 7 and 8
provide for COMELEC's competencies (i.e., affirmative action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates' exposure to voters.65 Section 9 regulates venues
for the posting of campaign materials.66 Section 10 provides for parties' and candidates' right to
reply.67Section 11 requires media outlets to make available the use of their facilities for election
propaganda at discounted rates.68
The Fair Election Act also governs published surveys during elections.
Section 5.1 defines election surveys-as "the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to
the election, including voters' preference for candidates or publicly discussed issues during the campaign
period[.]" Sections 5.2 and 5.3 provide regulations that facilitate transparency with respect to ' election
surveys. Section 5.469 is no longer in effect, having been declared unconstitutional in this court's May 5,
2001 Decision in Social Weather Stations and Kamahalan Publishing Corp. v. COMELEC.70 Section
5.571pertains to exit polls.
Section 5.2 enumerates the information that a person publishing an election survey must publish along
with the survey itself:
5.2 During the election period, any person, natural as well as juridical, candidate or organization who
publishes a survey must likewise publish the following information:
a. The name of the person, candidate, party or. organization who commissioned or paid for the
survey;
b. The name of the person, polling firm or survey organization who conducted the survey;
c. The period during which the survey was conducted, the methodology used, including the
number of individual respondents and the areas from which they were selected, and the
specific questions asked;
29
d. The margin of error of the survey;
e. For each question for which the margin of error is greater than that reported under
paragraph (d), the margin of error for that question; and
f. A mailing address and telephone number, indicating it as an address or telephone number at
which the sponsor can be contacted to obtain a written report regarding the survey in
accordance with Subsection 5.3. (Emphasis supplied)
Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of
the raw data used as bases for its conclusions:
5.3 The survey together with raw data gathered to support its conclusions shall be available for
inspection, copying and verification by the COMELEC or by a registered political party or a bona fide
candidate, or by any COMELEC-accredited citizen's arm. A reasonable fee sufficient to cover the costs of
inspection, copying and verification may be charged.
As with all the other provisions of the Fair Election Act, Section 5 is a means to guarantee equal access to
the deliberative forums essential to win an elective public office. Any reading of Section 5 and of its
individual components, such as Section 5.2(a), cannot be divorced from this purpose.
The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that
election surveys are not a mere descriptive aggregation of data. Publishing surveys are a means to shape
the preference of voters, inform the strategy of campaign machineries, and ultimately, affect the
outcome of elections. Election surveys have a similar nature as election propaganda. They are expensive,
normally paid for by those interested in the outcome of elections, and have tremendous consequences on
election results.
II
Views vary on the precise extent to which surveys or "polls" shape voter preferences, if at all.
Election surveys have been critiqued for amplifying the notion of an election as a "horse race"72 and for
reducing elections to the lowest common denominator of percentage points or a candidate's erstwhile
share in the vote market rather than focusing on issues, principles, programs, and platforms.
Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:
First, there is the bandwagon effect where "electors rally to support the candidate leading in the
polls."73 This "assumes that knowledge of a popular 'tide' will likely change voting intentions in [favor] of
the frontrunner, that many electors feel more comfortable supporting a popular choice or that people
accept the perceived collective wisdom of others as being enough reason for supporting a candidate."74
Second, there is the underdog effect where "electors rally to support the candidate trailing in the
polls."75 This shift can be motivated by sympathy for the perceived underdog.76
Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to
do so,"77 having been alerted to the fact of an election's imminence.78
Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that
their candidate or party will win[.]"79

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the
chances of winning[.]"80
Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls
wrong[.]"81
Election surveys published during election periods create the "politics of expectations."82 Voters act in
accordance with what is perceived to be an existing or emerging state of affairs with respect to how
candidates are faring.
Of the six (6) effects, the bandwagon effect has a particular resonance and has been of concern. Surveys,
or opinion polls, "by directly influencing individual-level support . . . , can be self-fulfilling prophecies and
produce opinion cascades."83 "[A] poll's prediction may come to pass not only because it measures public
opinion but also because it may influence public opinion."84
The bandwagon effect is of particular concern because of the observed human tendency to conform.
Three (3) mechanisms through which survey results may induce conformity have been posited:
(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and
accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof
because they 'believe that others' interpretation of an ambiguous situation is more accurate . . . and will
help [them] choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the
poll.85cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is but the obverse of the so-called false-
consensus effect or false-consensus bias:
The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where
people misperceive that their own behaviors and attitudes are more popular than they actually are. In
the political domain, one mechanism underlying the false consensus effect is wishful thinking - people
gaining utility from thinking their candidate is ahead or their opinions are popular.86
The bandwagon effect induced by election surveys assumes even greater significance in considering the
health of a democracy.
Integral to our appreciation of democracy is the recognition that democracy is fundamentally
deliberative. It is rooted in the exchange and dialogue of ideas. Accordingly, free expression, not least of
all from the minority and from those who do not conform, i.e., those who dissent and criticize, is
indispensable:
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue is a critical, and indeed defining, feature of a good polity." This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will be affected by the decision." It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people. To ensure order in running the state's affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to the
30
right of the people to make government accountable. Necessarily, this includes the right of the people to
criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should
thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs." This court has, thus, adopted the principle that
"debate on public issues should be uninhibited, robust, and wide open . . . [including even] unpleasantly
sharp attacks on government and public officials."87cralawlawlibrary
However, "conformity pressures can suppress minority opinion."88 The bandwagon effect conjures
images of an impregnable majority, thereby tending to push farther toward the peripheries those who
are already marginalized. Worse, the bandwagon effect foments the illusion of a homogenous monolith
denying the very existence of those in the minority. This undermines the "normative conceptions of
democracy"89 substituting the democratic dialogue with acquiescence to perceived or projected
orthodoxy.
Surveys, far from being a passive "snapshot of many viewpoints held by a segment of the population at a
given time,"90 can warp existing public opinion and can mould public opinion. They are constitutive.
Published election surveys offer valuable insight into public opinion not just because they represent it
but more so because they also tend to make it.
Appreciating this tendency to both entrench and marginalize is of acute relevance in the context of
Philippine political reality. This is the same reality that our policymakers, primarily the framers of the
Constitution, have seen fit to address.
III
The constitutional dictum to "guarantee equal access to opportunities for public service"91 and (even
more specifically and explicitly) to "prohibit political dynasties"92 does not exist in a vacuum.
Politics in the Philippines has been criticized as "a lucrative means of self-aggrandizement."93 Ours is an
exclusive system that perpetuates power and provides sanctuary to those who have already secured
their place. Traditional Filipino politics connotes elite families that, with the state, are "engaged in a
reciprocal relationship that constantly defines and redefines both."94 As recounted by Alfred McCoy, this
reciprocal relationship, typified by rent-seeking (i.e., "taking advantage of their access to state privileges
to expand proprietary wealth"95), is a vicious cycle propagated for as long as the Philippines has been a
republic: "The emergence of the Republic as a weak postcolonial state augmented the power of rent-
seeking political families a development that further weakened the state's own resources."96
The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the adoption of the 1987
Constitution, saw the "celebritification"97 of political office. On the legislature and studying emerging
contrasts in the composition of its two chambers the Senate and the House of Representatives it has
been noted:
The old political families, however are not as strong in the Senate as they are in the House. This could be
read, if not as a total repudiation by voters of family power, then at least as an attempt by them to tap

other sources of national leadership. Celebrities and military and police officers have emerged as
alternatives to traditional politicians. It could be that these new men and women have captured the
popular imagination or that they are more in tune with the public pulse. But their emergence could very
well be seen as an indication of the paucity of choices: Political parties, for one, have not succeeded in
proffering a wider range of options to an electorate weary of trapos.98
This celebritification nurtures misleading notions of an enhanced or healthier democracy, one that opens
avenues to a crop of political leaders not belonging to oligarchic families. Viewed critically however, this
is nothing more than a pipe dream. New elites now share the political stage with the old. The tension
between two contrary tendencies actually serves to preserve the status quo of elitism an expanded
elitism perhaps, but elitism no less. To evoke a truism, "the more things change, the more they stay the
same":
But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive
body once reserved only for the very rich, the politically experienced, and the intellectually brilliant. In a
sense, the bar of entry has been lowered, and anyone with national renown can contest a seat in a
chamber once famous for sharp debates and polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over
older political families with bankable names. . . .
The diminishing clout of old families in the Senate and their continued dominance in the House shows
the push and pull of two contrary tendencies. The first tendency is toward the new: The importance of
name recall in national elections taking place in a media-inundated environment makes it easier for
movie and media personalities, and harder for old-style politicians, to be elected. The second tendency is
veering toward the old: At the district level, trapo-style patronage and machine politics remain deeply
entrenched, giving political families the edge in elections."99
Thus, where once there was elitism solely along lines of kinship Alfred McCoy's so-called "anarchy of
families" now there is also elitism demarcated by name recall, populist projection, and media exposure,
arguably, an "anarchy of celebrities."
Certainly, it is not the business of this court to engage in its own determination of the wisdom of policy.
Nevertheless, having to grapple with the tasks of adjudication and interpretation, it has become
necessary to bring to light the intent that underlies the disputed statutory provision, as well as the
constitutional regime and social context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda
and other means through which candidates may shape voter preferences is itself telling of the recognition
that published election surveys, too, may influence voter preferences. This inclusion is similarly telling of a
recognition that, left unregulated, election surveys can undermine the purposes of ensuring "fair"
elections. These recognitions are embedded in the Fair Election Act; they are not judicial constructs. In
adjudicating with these' as bases, this court is merely adhering to the legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring equality.
The Fair Election Act is a means to effect the "necessary condition" to a genuine democratic dialogue, to
realizing a deliberative democracy. The concept of this "necessary condition" was previously considered
by this court in Diocese of Bacolod v. COMELEC:100
31
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized
how institutionalized inequality exists as a background limitation, rendering freedoms exercised within
such limitation as merely "protecting] the already established machinery of discrimination." In his view,
any improvement "in the normal course of events" within an unequal society, without subversion, only
strengthens existing interests of those in power and control.
In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is selfi-determination, autonomy this is almost a tautology, but a tautology which results from a
whole series of synthetic judgments. It stipulates the ability to determine one's own life: to be able to
determine what to do and what not to do, what to suffer and what not. But the subject of this autonomy
is never the contingent, private individual as that which he actually is or happens to be; it is rather the
individual as a human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law, between general and individual
interest, common and private welfare in an established society, but of creating the society in which man
is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies.
Marcuse suggests that the democratic argument with all opinions presented to and deliberated by the
people "implies a necessary condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought'." He submits that "[different
opinions and 'philosophies' can no longer compete peacefully for adherence and persuasion on rational
grounds: the 'marketplace of ideas' is organized and delimited by those who determine the national and
the individual interest."
A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed
and overpowered minorities to use extralegal means if the legal ones have proved to be inadequate."
Marcuse, thus, stands for an equality that breaks away and transcends from established hierarchies,
power structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive
tolerance."101
What is involved here is petitioners' freedom of speech and of expression, that is, to publish their
findings. More specifically, what is involved here is their right to political speech, that which "refers to
speech 'both intended and received as a contribution to public deliberation about some issue,'
'foster[ing] informed and civic-minded deliberation."102
The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality,
calls into operation the equality-based approach to weighing liberty to express vis-a-vis equality of
opportunities. As explained in Diocese of Bacolod:103
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but
regulation promoting political equality prevails over speech." This view allows the government leeway to
redistribute or equalize 'speaking power,' such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within society's ideological ladder. This view
acknowledges that there are dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of others. This is especially true in
a developing or emerging economy that is part of the majoritarian world like ours.

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and their
necessity to relate. On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the messages of those in
the minority. In a sense, social inequality does have its effect on the exercise and effect of the guarantee
of free speech. Those who have more will have better access to media that reaches a wider audience
than those who have less. Those who espouse the more popular ideas will have better reception than
the subversive and the dissenters of society. To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments of
the value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.104
The required judicial temperament in appraising speech in the context of electoral campaigns which is
principally designed to endorse a candidate, both by candidates and / or political parties, on the one
hand, and private citizens, on the other, has thus been articulated:
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmena v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates or
who do not speak as members of a political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not amount to
an election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members of a political party if they are not candidates,
only if what is regulated is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be with respect to the time, place, and manner of
the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its
content. For this purpose, it will not matter whether the speech is made with or on private
property.105 [Emphasis in the original]
V
Concededly, what is involved here is not election propaganda per se. Election surveys, on their face, do
not state or allude to preferred candidates. As a means, election surveys are ambivalent. To an
32
academician, they are an aggrupation of data. To a journalist, they are matters for reportage. To a
historian, they form part of a chronicle. Election surveys thus become unambiguous only when viewed in
relation to the end for which they are employed. To those whose end is to get a candidate elected,
election surveys, when limited to their own private consumption, are a means to formulate
strategy. When published, however, the tendency to shape voter preferences comes into play. In this
respect, published election surveys partake of the nature of election propaganda. It is then declarative
speech in the context of an electoral campaign properly subject to regulation. Hence, Section 5.2 of the
Fair Election Act's regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names of subscribers
to election surveys in light of the requisites for valid regulation of declarative speech by private entities
in the context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of subscribers among those
persons who "paid for the survey[.]"106 Thus, Resolution No. 9674 is a regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who "commissioned"
and those who "paid for" the published survey are separated by the disjunctive term "or."107 This
disassociates those who "commissioned" from those who "paid for" and identifies them as alternatives
to each other.108 Section 5.2(a) thus requires the disclosure of two (2) classes of persons: "[first,] those
who commissioned or sponsored the survey; and [second,] those who paid for the survey."109
The second class makes no distinction between those who pay for a specific survey and those who pay
for election surveys in general. Indeed, subscribers do not escape the burden of paying for the
component articles comprising a subscription. They may pay for them in aggregate, but they pay for
them just the same. From the text of Section 5.2(a), the legislative intent or regulatory concern is clear:
"those who have financed, one way or another, the [published] survey"110 must be disclosed.
Second, not only an important or substantial state interest but even a compelling one reasonably
grounds Resolution No. 9674's inclusion of subscribers to election surveys. Thus, regardless of whether
an intermediate or a strict standard is used, Resolution No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a compelling state interest:
Compelling governmental interest would include constitutionally declared principles. We have held, for
example, that "the welfare of children and the State's mandate to protect and care for them, as parens
patriae, constitute a substantial and compelling government interest in regulating . . . utterances in TV
broadcast."111
Here, we have established that the regulation of election surveys effects the constitutional policy,
articulated in Article II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII,
Section 26 of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public
service[.]"112
Resolution No. 9674 addresses the reality that an election survey is formative as it is descriptive. It can
be a means to shape the preference of voters and, thus, the outcome of elections. In the hands of those
whose end is to get a candidate elected, it is a means for such end and partakes of the nature of election
propaganda. Accordingly, the imperative of "fair" elections impels their regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of
all candidates to be heard and considering the primacy of the guarantee of free expression"113 and is
"demonstrably the least restrictive means to achieve that object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far
as to suppress desired expression. There is neither prohibition nor censorship specifically aimed at
election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does is
articulate a regulation as regards the manner of publication, that is, that the disclosure of those who
commissioned and/or paid for, including those subscribed to, published election surveys must be made.
VI
Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert that there is no
room to entertain COMELEC's construction of Section 5.2(a).115
It has been said that "[a] cardinal rule in statutory construction is that when the law is clear and free
from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for
application."116
Clarifications, however, are in order.
First, verba legis or the so-called plain-meaning rule applies only when the law is completely clear, such
that there is absolutely no room for interpretation. Its application is premised on a situation where the
words of the legislature are clear that its intention, insofar as the facts of a case demand from the point
of view of a contemporary interpretative community, is neither vague nor ambiguous. This is a matter of
judicial appreciation. It cannot apply merely on a party's contention of supposed clarity and lack of room
for interpretation.
This is descriptive of the situation here.
Interestingly, both COMELEC and petitioners appeal to what they (respectively) construe to be plainly
evident from Section 5.2(a)'s text: on the part of COMELEC, that the use of the words "paid for" evinces
no distinction between direct purchasers and those who purchase via subscription schemes; and, on the
part of petitioners, that Section 5.2(a)'s desistance from actually using the word "subscriber" means that
subscribers are beyond its contemplation.117 The variance in the parties' positions, considering that they
are both banking on what they claim to be the Fair Election Act's plain meaning, is the best evidence of
an extant ambiguity.
Second, statutory construction cannot lend itself to pedantic rigor that foments absurdity. The dangers
of inordinate insistence on literal interpretation are commonsensical and need not be belabored. These
dangers are by no means endemic to legal interpretation. Even in everyday conversations, misplaced
literal interpretations are fodder for humor. A fixation on technical rules of grammar is no less
innocuous. A pompously doctrinaire' approach to text can stifle, rather than facilitate, the legislative
wisdom that unbridled textualism purports to bolster.118
Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is
static.
The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider
context and the interplay of the historical, the contemporary, and even the envisioned. Judicial
interpretation entails the convergence of social realities and social ideals. The latter are meant to be
effected by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the
Constitution. Indeed, the word in the vernacular that describes the Constitution � saligan �
demonstrates this imperative of constitutional primacy.
33
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is
aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that
should have a present authoritative effect to achieve the ideals of those who currently read, depend on,
and demand fealty from the Constitution.
VII
We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted to it in the
performance of its constitutional duty to "[e]nforce and administer all laws arid regulations relative to
the conduct of an election[.]"120 But this is with the caution that it does not reach "grave abuse of
discretion[.]121
Alliance for Nationalism and Democracy v. COMELEC122 had the following to say regarding factual
findings made by COMELEC, an independent constitutional organ:
[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except
when there is absolutely no evidence or no substantial evidence in support of such findings should be
applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to
place the COMELEC�created and explicitly made independent by the Constitution itself�on a level
higher than statutory administrative organs.123
Proceeding from this, we emphasize that this norm of deference applies not only to factual findings. This
applies with equal force to independent constitutional organs' general exercise of their functions. The
constitutional placing of independent constitutional organs on a plane higher than those of
administrative agencies created only by statute is not restricted to competence in fact-finding. It extends
to all purposes for which the Constitution created them.
We reiterate, however, that our recognition of this deferential norm is made with caution. This rule of
deference does not give independent constitutional organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom of "subordinate legislation" or the rule-making
power of agencies tasked with the administration of government is acknowledged, rule-making agencies
are not given unfettered power to promulgate rules. As explained in Gerochi v. Department of
Energy,124it is imperative that subordinate legislation "be germane to the objects and purposes of the
law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed
by the law."125A regulation that purports to effect a statute but goes beyond the bounds of that statute
is ultra vires; it is in excess of the rule-making agency's competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of discretion. Resolution No. 9674 serves a
constitutional purpose and works well within the bounds of the Constitution and of statute.
VIII
Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:
Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of
subscribers who have paid substantial amounts to them, even if ihe survey portions provided to them
have not been published. 1'his requirement is unduly burdensome and onerous and constitutes a prior
restraint on the right of survey firms to gather information on public opinion and disseminate it to the
citizenry.

If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they
will not have enough clients and will not be financially sustainable. COMELEC will finally be able to do
indirectly what it could not do directly, which is to prohibit the conduct of election surveys and the
publication or dissemination of the results to the public.126
Petitioners' assertions are erroneous.
Chavez v. Gonzales127 explained the concept of prior restraint as follows:
Prior restraint refers to official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites
to publication including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of certain newspapers, resulting
in the discontinuation of their printing and publication, are deemed as previous restraint or censorship.
Any law or official that requires some form of permission to be had before publication can be made,
commits an infringement of the constitutional right, and remedy can be had at the courts.
The very definition of "prior restraint" negates petitioner's assertions. Resolution No. 9674 poses no
prohibition or censorship specifically aimed at election surveys. Apart from regulating the manner of
publication, petitioners remain free to publish election surveys. COMELEC correctly points out that "[t]he
disclosure requirement kicks in only upon, not prior to, publication."129
In any case, the requirement of disclosing subscribers is neither unduly burdensome nor onerous. Prior
to the promulgation of Resolution No. 9674, survey firms were already understood to be bound by the
requirement to disclose those who commissioned or paid for published election surveys. Petitioners
have been complying with this without incident since the Fair Election Act was enacted in 2001. After
more than a decade of compliance, it is odd for petitioners to suddenly assail the disclosure requirement
as unduly burdensome or onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no longer be able to
operate because they will not have enough clients and will not be financially sustainable"130 is too
speculative and conjectural to warrant our consideration. The assumption is that persons who want to
avail of election survey results will automatically be dissuaded from doing so when there is a
requirement of submission of their names during the campaign period. This is neither self-evident, nor a
presumption that is susceptible to judicial notice. There is no evidence to establish a causal connection.
Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring
political equality and, therefore, the speech of others who want to participate unencumbered in our
political spaces. On one hand, there are petitioners' right to publish and publications which are attended
by the interests of those who can employ published data to their partisan ends. On the other, there is
regulation that may effect equality and, thus, strengthen the capacity of those on society's margins or
those who grope for resources to engage in the democratic dialogue. The latter fosters the ideals of
deliberative democracy. It does not trump the former; rather, it provides the environment where the
survey group's free speech rights should reside.
IX
Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987 Constitution.131They
34
claim that it "unduly interferes with [their] existing contracts . . . by forcing [them] to disclose
information that, under the contracts, is confidential or privileged."132
For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the
loftier purposes sought to be achieved by the government."133 It adds that "[petitioners' existing
contracts with third parties must be understood to have been made in reference to the possible exercise
of the COMELEC's regulatory powers."134
It is settled that "the constitutional guaranty of non-impairment... is limited by the exercise of the police
power of the State, in the interest of public health, safety, morals and general welfare."135 "It is a basic
rule in contracts that the law is deemed written into the contract between the parties."136 The
incorporation of regulations into contracts is "a postulate of the police power of the State."137
The relation of the state's police power to the principle of non-impairment of contracts was thoroughly
explained in Ortigas and Co. V. Feati Bank:138
[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has
to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety and general welfare of the people."
Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the
greatest and most powerful attribute of government," the exercise of the power may be judicially
inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been
a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held
through Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al. police
power "is elastic and must be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal progress of a
democratic way of life." We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian
Relations, et al, when We declared: "We do not see why public welfare when clashing with the individual
right to property should not be made to prevail through the state's exercise of its police power."
This case does not involve a "capricious, whimsical, unjust or unreasonable"140 regulation. We have
demonstrated that not only an important or substantial state interest, but even a compelling one
anchors Resolution No. 9674's requirement of disclosing subscribers to election surveys. It effects the
constitutional policy of "guarantee[ing] equal access to opportunities for public service"141 and is
impelled by the imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written
into petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested in the concept of contracts are creations of
law. This right to demand performance not only involves its requisites, privileges, and regulation in the
Civil Code or special laws, but is also subject to the Constitution. The expectations inherent in a contract
may be compelling, but so are the normative frameworks demanded by law and the provisions of the
Constitution.
X
Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and regulations
promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day
after their publication in at least two (2) daily newspapers of general circulation." In contrast, Resolution
No. 9674 provides that it "shall take effect immediately after publication."142 Thus, they assert that
Resolution No. 9674's effectivity clause is invalid. From this, they argue that Resolution No. 9674 has not

taken effect and cannot be enforced against them or against other persons.143
COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall take effect "on the
seventh day after their publication" applies only to Resolution No. 9615, the Implementing Rules and
Regulations (IRR) of the Fair Election Act, and not to Resolution No. 9674, which "merely enforces
Section 26144 of Resolution No. 9615."145
Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily Inquirer and the
Philippine Star both on April 25, 2013, COMELEC adds that, in any case, "the lapse of the seven-day
period from the date of its publication has rendered the instant issue moot and academic."146
It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:
Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall
promulgate and furnish all political parties and candidates and the mass media entities the rules and
regulations for the implementation of this Act, consistent with the criteria established in Article IX-C,
Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take
effect on the seventh day after their publication in at least two (2) daily newspapers of general
circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for
or against any candidate or political party shall be published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be
an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus
Election Code (Batas Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act No. 9006,
otherwise known as the 'Fair Election Act', in connection to [sic] the 13 May 2013 National and Local
Elections, and Subsequent Elections[.]"
The only conceivable reason that would lead COMELEC to the conclusion that it is only Resolution No.
9615 (and not the assailed Resolution No. 9674) that needs to comply with the requirement of Section
13 of the Fair Election Act is Section 13's use of the phrase "rules and regulations for the implementation
of this Act[.]" That is, since Resolution No. 9615 is the Resolution which, by name, is called the "Rules and
Regulations Implementing Republic Act No. 9006," COMELEC seems to think that other rules named
differently need not comply.
It is an error to insist on this literal reasoning.
Section 13 applies to all rules and regulations implementing the Fair Election Act, regardless of how they
are denominated or called. COMELEC's further reasoning that what Resolution No. 9674 intends to
implement is Resolution No. 9615 and not the Fair Election Act itself is nothing but a circuitous denial of
Resolution No. 9674's true nature. COMELEC's reasoning is its own admission that the assailed
Resolution supplements what the Implementing Rules and Regulations of the Fair Election Act provides.
Ultimately, Resolution No. 9674 also implements the Fair Election Act and must, thus, comply with the
requirements of its Section 13.
Accordingly, Resolution No. 9674 could not have become effective as soon as it was published in the
Philippine Daily Inquirer and the Philippine Star on April 25, 2013. Taking into consideration the seven-
day period required by Section 13, the soonest that it could have come into effect was on May 2, 2013.
35
This notwithstanding, petitioners were not bound to comply with the requirement "to submit within
three (3) days from receipt of this Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of this Resolution[.]"147 As shall be
discussed, COMELEC's (continuing) failure to serve copies of Resolution No. 9674 on petitioners
prevented this three-day period from even commencing.
XI
Petitioners point out that they were never served copies of Resolution No. 9674. Thus, they claim that
this Resolution's self-stated three-day period within which they must comply has not begun to run and
that COMELEC's insistence on their compliance violates their right to due process. They add that
COMELEC has also failed to provide them with copies of the criminal complaint subject of E.O. Case No.
13-222 for which the Subpoena dated July 1, 2013 was issued against them.
COMELEC, however, insists that "[petitioners were given fair notice of the Resolution"148 in that:
[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the
Resolution by its number and title but also indicates its date of promulgation, the two newspapers of
general circulation in which it was published, it date of publication, and, more important [sic],
reproduces in full its dispositive portion[.]149
COMELEC adds that, in any case, petitioners were "able to secure a certified true copy of the [assailed]
Resolution."150 On the filing of a criminal complaint, COMELEC asserts that attached to the Subpoena
served on petitioners was a copy of Resolution No. 13-0739 of the COMELEC En Bane which "provides a
verbatim reproduction of the Memorandum of the Director of the Law Department detailing petitioners'
failure to comply with the assailed Resolution and of the Memorandum of Commissioner [Christian
Robert S.] Lim submitting the matter for the appropriate action of the COMELEC en bane."151
COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners, it acted
arbitrarily, whimsically, and capriciously, and violated petitioners' right to due process.
By its own reasoning, COMELEC admits that petitioners were never actually served copies of Resolution
No. 9674 after it was promulgated on April 23, 2013. It insists, however, that this flaw has been
remedied by service to petitioners of the May 8, 2013 Notice which reproduced Resolution No. 9674's
dispositive portion.
Dismembering an official issuance by producing only a portion of it (even if the reproduced portion is the
most significant, i.e., dispositive, portion) is not the same as serving on the concerned parties a copy of
the official issuance itself. Petitioners may have been informed of what the dispositive portion stated,
but it remains that they were never notified and served copies of the assailed Resolution itself. In
Resolution No. 9674's own words, compliance was expected "within three (3) days from receipt of this
Resolution[,]"152 not of its partial, dismembered, reproduction.
Not having been served with copies of Resolution No. 9674 itself, petitioners are right in construing the
three-day period for compliance as not having begun to run. From this, it follows that no violation of the
requirement "to submit within three (3) days from receipt of this Resolution the names of all
commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation
of this Resolution[.]"153 could have been committed. Thus, there was no basis for considering petitioners
to have committed an election offense arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to comply with it
"shall constitute an election offense punishable under the first and second paragraphs of Section 264 of
 36

the Omnibus Election Code."154 It is true that the Omnibus Election Code has been in force and effect
long before Resolution No. 9674 was promulgated; nevertheless, the supposed violation of the Omnibus
Election Code rests on petitioners' alleged non-compliance with Resolution No. 9674. This is a matter
which, as we have demonstrated, is baseless, the three-day period for compliance not having even
commenced.
It is similarly inconsequential that petitioners were subsequently able to obtain certified true copies of
Resolution No. 9674. Petitioners' own diligence in complying with the formal requirements of Rule 65
petitions filed before this court cannot possibly be the cure for COMELEC's inaction. These certified true
copies were secured precisely to enable petitioners to assail COMELEC's actions, not to validate them. It
would be misguided to subscribe to COMELEC's suggestion that petitioners' diligence should be their
own undoing. To accede to this would be to effectively intimidate parties with legitimate grievances
against government actions from taking the necessary steps to comply with (formal) requisites for
judicial remedies and, ultimately, prevent them from protecting their rights.
COMELEC's error is compounded by its failure to provide petitioners with copies of the criminal
complaint subject of E.O. Case No. 13-222. COMELEC has neither alleged nor proven that it has done so.
Per its own allegations, all it did was serve petitioners with the May 8, 2013 Notice and the July 1, 2013
Subpoena.
These facts considered, it was not only grave error, but grave abuse of discretion, for COMELEC to
pursue unfounded criminal charges against petitioners. In so doing, COMELEC violated petitioners' right
to due process.
election. They contend that there is no reason for ordinary voters to be denied access to the results of
election surveys, which are relatively objective.
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to
prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous
surveys just before the election. It contends that (1) the prohibition on the publication of election survey
results during the period proscribed by law bears a rational connection to the objective of the
law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys,
bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited
both in duration, i.e., the last 15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results but only require timeliness.
Issue: Whether or not Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of
speech, expression and the press.
Held:
Yes. It constitutes an unconstitutional abridgement of freedom of expression, speech and the press. To
summarize, the Supreme Court held that §5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even though
such suppression is only for a limited period, and (3) the governmental interest sought to be promoted
can be achieved by means other than suppression of freedom of expression.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No. 9674 is upheld, and
respondent Commission on Elections is ENJOINED from prosecuting petitioners Social Weather Stations,
Inc. and Pulse Asia, Inc. for their supposed violation of COMELEC Resolution No. 9674 in respect of their
non-submission of the names of all commissioners and payors, including subscribers, of surveys
published during the campaign period for the 2013 elections.
It has been held that mere legislative preferences or beliefs respecting matters of public convenience
may well support regulation directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic institutions.

SO ORDERED.

Facts:

Petitioner, Social Weather Stations, Inc. (SWS) is a private non-stock, non-profit social research
institution conducting surveys in various fields. On the other hand, petitioner Kamahalan Publishing
Corporation publishes the Manila Standard, a newspaper of general circulation.

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing
Section 5.4 of RA. No.9006 (Fair Election Act), which provides that: “Surveys affecting national
candidates shall not be published fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an election”.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior
restraint on the exercise of freedom of speech without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior
to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing
confusion among the voters and that there is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable danger to tile voting process posed by election
surveys. No similar restriction is imposed on politicians from explaining their opinion or on newspapers
or broadcast media from writing and publishing articles concerning political issues up to the day of the

EN BANC
G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-Intervenor.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental
postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights
and regulations, liberties and limitations, and competing demands of the different segments of society.
Here, we are confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible elections, together with
the aim of ensuring equal opportunity, time and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns and forums among candidates,2 on one hand, and
the imperatives of a republican and democratic state,3 together with its guaranteed rights of
suffrage,4 freedom of speech and of the press,5 and the people's right to information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to the question - how does
the Charter of a republican and democratic State achieve a viable and acceptable balance between
liberty, without which, government becomes an unbearable tyrant, and authority, without which, society
becomes an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013 national and local elections dealing with political
advertisements. Specifically, the petitions question the constitutionality of the limitations placed on
aggregate airtime allowed to candidates and political parties, as well as the requirements incident
thereto, such as the need to report the same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of
candidates and political parties for national election positions to an aggregate total of one hundred
twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people's
right to suffrage as well as their right to information relative to the exercise of their right to choose who
to elect during the forth coming elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number of
minutes that candidates may use for television and radio advertisements, as provided in Section 6 of
37
Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent portions of
said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have
equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty ( 60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the
frequency, date, time and duration of advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a
candidate is entitled to the aforestated number of minutes "per station."7 For the May 2013 elections,
however, respondent COMELEC promulgated Resolution No. 9615 dated January 15, 2013, changing the
interpretation of said candidates' and political parties' airtime limitation for political campaigns or
advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network,
Incorporated ( GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc.
(NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators of radio and television networks
in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the national
organization of broadcasting companies in the Philippines representing operators of radio and television
stations and said stations themselves. They sent their respective letters to the COMELEC questioning the
provisions of the aforementioned Resolution, thus, the COMELEC held public hearings. Thereafter, on
February 1, 2013, respondent issued Resolution No. 9631 amending provisions of Resolution No. 9615.
Nevertheless, petitioners still found the provisions objectionable and oppressive, hence, the present
petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's
franchise or permit, imposes criminal liability against broadcasting entities and their officers
in the event they sell airtime in excess of the size, duration, or frequency authorized in the
new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per
station" airtime for political campaigns or dvertisements, and also required prior COMELEC
approval for candidates' television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."

In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while petitioner GMA further assails Section 35, 12 which
states that any violation of said Rules shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to
Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution
changing the interpretation of candidates' and political parties' airtime limitation for political campaigns
or advertisements from a "per station" basis, to a "total aggregate" basis. Petitioners allege that
Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and issued
without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for the
reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate
airtime limit and a vague meaning for a proper computation of "aggregate total" airtime, and violates
the equal protection guarantee, thereby defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the press and of expression, and on the right of people
to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost
impossible burden on broadcast mass media of monitoring a candidate's or political party's aggregate
airtime, otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and the
press; and for being violative of the equal protection guarantee. In addition to the foregoing, petitioner
GMA further argues that the Resolution was promulgated without public consultations, in violation of
petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition of the terms
"political advertisement" and "election propaganda" suffers from overbreadth, thereby producing a
"chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated March 8, 2013, that the
petition should be denied based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition are not available to petitioners,
because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial
powers, while the writ of prohibition only lies against the exercise of judicial, quasijudicial or ministerial
functions. Said writs do not lie against the COMELEC's administrative or rule-making powers.
Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and
freedoms they enumerate are not personal to them, rather, they belong to candidates, political parties
and the Filipino electorate in general, as the limitations are imposed on candidates, not on media
38
outlets. It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to give them
legal standing as said "fear of injury" is highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with
R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to media
during elections. It sees this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the Constitution
which vests on the COMELEC the power to supervise and regulate, during election periods,
transportation and other public utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, and equal rates therefor, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible elections.
This being the case, then the Resolutions cannot be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed Resolutions have given
clear and adequate mechanisms to protect broadcast stations from potential liability arising from a
candidate's or party's violation of airtime limits by putting in the proviso that the station "may require
buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration or
frequency authorized by law or these rules." Furthermore, words should be understood in the sense that
they have in common usage, and should be given their ordinary meaning. Thus, in the provision for the
right to reply, "charges" against candidates or parties must be understood in the ordinary sense,
referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona fide news broadcasts. It points out that the fact that
notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring
purposes only, not for censorship. Further, respondent argues, that for there to be prior restraint, official
governmental restrictions on the press or other forms of expression must be done in advance of actual
publication or dissemination. Moreover, petitioners are only required to inform the COMELEC of
candidates'/parties' guestings, but there is no regulation as to the content of the news or the expressions
in news interviews or news documentaries. Respondent then emphasized that the Supreme Court has
held that freedom of speech and the press may be limited in light of the duty of the COMELEC to ensure
equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it as restrictive of the
airing of bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in the
Constitution, and the assailed Resolutions provide that said right can only be had after going through
administrative due process. The provision was also merely lifted from Section 10 of R.A. No. 9006, hence,

petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot be done through
a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of
"political advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not violate the equal
protection clause, because it does not make any substantial distinctions between national and regional
and/or local broadcast stations, and even without the aggregate total airtime rule, candidates and
parties are likely to be more inclined to advertise in national broadcast stations. Respondent likewise
sees no merit in petitioners' claim that the Resolutions amount to taking of private property without just
compensation. Respondent emphasizes that radio and television broadcasting companies do not own
the airwaves and frequencies through which they transmit broadcast signals; they are merely given the
temporary privilege to use the same. Since they are merely enjoying a privilege, the same may be
reasonably burdened with some form of public service, in this case, to provide candidates with the
opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the Administrative Code
of 1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as
practicable, publish or circulate notices of proposed rules and afford interested parties the
opportunity to submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next
succeeding section, except the Congress, the Judiciary, the Constitutional Commissions,
military establishments in all matters relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before the
issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to question the herein assailed
Resolutions, which should be considered as a "decision, order or ruling of the Commission" as mentioned
in Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided by law, or by any specific
provisions in these Rules, any decision, order or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.
39
GMA further stressed that this case involves national interest, and the urgency of the matter justifies its
resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for
declaratory relief because such action only asks the court to make a proper interpretation of the rights of
parties under a statute or regulation. Such a petition does not nullify the assailed statute or regulation,
or grant injunctive relief, which petitioners are praying for in their petition. Thus, GMA maintains that a
petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said
law. GMA points out that it has stated in its petition that the law in fact allows the sale or donation of
airtime for political advertisements and does not impose criminal liability against radio and television
stations. What it is assailing is the COMELEC's erroneous interpretation of the law's provisions by
declaring such sale and/or donation of airtime unlawful, which is contrary to the purpose of the Fair
Election Act.
GMA then claims that it has legal standing to bring the present suit because:
x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability because of
the alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the injury is traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is likely to be redressed by
the remedy sought in petitioner GMA's Petition, among others, for the Honorable Court to nullify the
challenged pertinent provisions of the assailed Resolutions.15
On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective
and purpose of the Fair Election Act. It points out that the Fair Election Act even repealed the political ad
ban found in the earlier law, R.A. No. 6646. The Fair Election Act also speaks of "equal opportunity" and
"equal access,'' but said law never mentioned equalizing the economic station of the rich and the poor,
as a declared policy. Furthermore, in its opinion, the supposed correlation between candidates'
expenditures for TV ads and actually winning the elections, is a mere illusion, as there are other various
factors responsible for a candidate's winning the election. GMA then cites portions of the deliberations
of the Bicameral Conference Committee on the bills that led to the enactment of the Fair Election Act,
and alleges that this shows the legislative intent that airtime allocation should be on a "per station"
basis. Thus, GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC to issue the
present Resolutions imposing airtime limitations on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them,
because their failure to strictly monitor the duration of total airtime that each candidate has purchased
even from other stations would expose their officials to criminal liability and risk losing the station's good
reputation and goodwill, as well as its franchise. It argues that the wordings of the Resolutions belie the
COMELEC's claim that petitioners would only incur liability if they "knowingly" sell airtime beyond the
limits imposed by the Resolutions, because the element of knowledge is clearly absent from the
provisions thereof. This makes the provisions have the nature of malum prohibitum.
Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole judgment of a
news event as a political advertisement are so pervasive under the assailed Resolutions, and provoke the
distastes or chilling effect of prior restraint"16 as even a legitimate exercise of a constitutional right might
 40

expose it to legal sanction. Thus, the governmental interest of leveling the playing field between rich and With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue
poor candidates cannot justify the restriction on the freedoms of expression, speech and of the press. abridgement of the freedom of speech and expression, the COMELEC counters that "the Resolutions
enjoy constitutional and congressional imprimatur. It is the Constitution itself that imposes the
restriction on the freedoms of speech and expression, during election period, to promote an important
On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code,
and significant governmental interest, which is to equalize, as far as practicable, the situation of rich and
pertinent portions of which provide, thus:
poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign
'war chests."'19
Section 82. Lawful election propaganda. - Lawful election propaganda shall include:
Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on
xxxx matters of public concern, because in this case, the COMELEC is not withholding access to any public
record.
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 On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency
opportunity to be heard: Provided, That the Commission's authorization shall be published in two involved and to prevent irreparable injury that may be caused to the petitioners if respondent COMELEC
newspapers of general circulation throughout the nation for at least twice within one week after the is not enjoined from implementing Resolution No. 9615.
authorization has been granted.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for
There having been no prior public consultation held, GMA contends that the COMELEC is guilty of Early Resolution of the Consolidated Petitions.21
depriving petitioners of its right to due process of law.
On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said Motion.
GMA then concludes that it is also entitled to a temporary restraining order, because the Not long after, ABC followed suit and filed its own Opposition to the Motion23 filed by the respondent.
implementation of the Resolutions in question will cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide television and radio services to the public, and by
In the interim, respondent filed a Second Supplemental Comment and Opposition24 dated April 8, 2013.
exposing it to the risk of incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio and television stations.
In the Second Supplemental Comment and Opposition, respondent delved on points which were not
previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in the
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a
petition filed by petitioner ABS-CBN and KBP.
Supplemental Comment and Opposition17 where it further expounded on the legislative intent behind
the Fair Election Act, also quoting portions of the deliberations of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version setting the computation of airtime limits on a per candidate, Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the
not per station, basis. Thus, as enacted into law, the wordings of Section 6 of the Fair Election Act shows assailed Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present
that the airtime limit is imposed on a per candidate basis, rather than on a per station basis. petition.
Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano is wrong in arguing that
there should be empirical data to support the need to change the computation of airtime limits from a
Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006
per station basis to a per candidate basis, because nothing in law obligates the COMELEC to support its
conclusively shows that congress intended the airtime limits to be computed on a "per candidate" and
Resolutions with empirical data, as said airtime limit was a policy decision dictated by the legislature
not on a "per station" basis. In addition, the legal duty of monitoring lies with the COMELEC. Broadcast
itself, which had the necessary empirical and other data upon which to base said policy decision.
stations are merely required to submit certain documents to aid the COMELEC in ensuring that
candidates are not sold airtime in excess of the allowed limits.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to minimize election spending and in furtherance of such
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to
constitutional power, the COMELEC issued the questioned Resolutions, in faithful implementation of the
inform the COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It is for
legislative intent and objectives of the Fair Election Act.
monitoring purposes only, not censorship. It does not control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from covering candidates in news interviews, news
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his events, and news documentaries, nor prevent the candidates from appearing thereon.
name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be charged
against his airtime limits by pointing out that what will be counted against a candidate's airtime and
As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior
expenditures are those advertisements that have been paid for or donated to them to which the
restraint on the freedoms of expression, speech and the press, as it does not in any way restrict the
candidate has given consent.
airing of bona fide new broadcasts. Media entities are free to report any news event, even if it should

turn out to be unfavourable to a candidate or party. The assailed Resolutions merely give the candidate
or party the right to reply to such charges published or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of
franchise or permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the
Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a
Resolution25 consolidating the case with the rest of the petitions and requiring respondent to comment
thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.26 Therein,
respondent stated that the petition filed by RMN repeats the issues that were raised in the previous
petitions. Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to
question the assailed resolutions and that RMN has no locus standi to file the present petition.
Respondent maintains that the arguments raised by RMN, like those raised by the other petitioners are
without merit and that RMN is not entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013 national and local elections, nevertheless the issues raised
by the petitioners have not been rendered moot and academic by the conclusion of the 2013 elections.
Considering that the matters elevated to the Court for resolution are susceptible to repetition in the
conduct of future electoral exercises, these issues will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are presented before the Court. So the Court does again in this particular
case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the COMELEC. Technically, respondent may have a point.
However, considering the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and definitive pronouncement that
everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to step in
and resolve petitions despite their being the subject of an improper remedy, in view of the public
importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
41
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to
question the personality of the parties invoking the Court's jurisdiction. The Court has routinely made
reference to a liberalized stance when it comes to petitions raising issues of transcendental importance
to the country. Invariably, after some discussions, the Court would eventually grant standing.28
In this particular case, respondent also questions the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a
candidate whose ability to reach out to the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer
relative to their ability to carry out their tasks of disseminating information because of the burdens
imposed on them. Nevertheless, even in regard to the broadcast companies invoking the injury that may
be caused to their customers or the public - those who buy advertisements and the people who rely on
their broadcasts - what the Court said in White Light Corporation v. City of Manila29 may dispose of the
question. In that case, there was an issue as to whether owners of establishments offering "wash-up"
rates may have the requisite standing on behalf of their patrons' equal protection claims relative to an
ordinance of the City of Manila which prohibited "short-time" or "wash-up" accommodation in motels
and similar establishments. The Court essentially condensed the issue in this manner: "[T]he crux of the
matter is whether or not these establishments have the requisite standing to plead for protection of
their patrons' equal protection rights."30 The Court then went on to hold:
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it does
unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal
branches of government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution. The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of
the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental
importance.
For this particular set of facts, the concept of third party standing as an exception and the overbreadth
doctrine are appropriate. x x x
American jurisprudence is replete with examples where parties-ininterest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or classes
of persons injured by state action. x x x
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute

needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim that the
Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on
the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.31
If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of
their clients, with more reason should establishments which publish and broadcast have the standing to
assert the constitutional freedom of speech of candidates and of the right to information of the public,
not to speak of their own freedom of the press. So, we uphold the standing of petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions
relative to the airtime limitations on political advertisements. This essentially consists in computing the
airtime on an aggregate basis involving all the media of broadcast communications compared to the past
where it was done on a per station basis. Thus, it becomes immediately obvious that there was effected
a drastic reduction of the allowable minutes within which candidates and political parties would be able
to campaign through the air. The question is accordingly whether this is within the power of the
COMELEC to do or not. The Court holds that it is not within the power of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No.
9006 [2001])32 - one hundred (120) minutes of television advertisement and one-hundred· eighty (180)
minutes for radio advertisement. For the 2004 elections, the respondent COMELEC promulgated
Resolution No. 652033 implementing the airtime limits by applying said limitation on a per station
basis.34 Such manner of determining airtime limits was likewise adopted for the 2007 elections, through
Resolution No. 7767.35 In the 2010 elections, under Resolution No. 8758,36 the same was again adopted.
But for the 2013 elections, the COMELEC, through Resolution No. 9615, as amended by Resolution No.
9631, chose to aggregate the total broadcast time among the different broadcast media, thus: Section 9.
Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. - All parties
and bona fide candidates shall have equal access to media time and space for their election propaganda
during the campaign period subject to the following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their broadcast advertisements or
election propaganda shall be, as follows:
For Candidates/Registered Not more than an aggregate total of one hundred (120)
Political parties for a National minutes of television advertising, whether appearing on
Elective Position national, regional, or local, free or cable television, and one
hundred eighty (180) minutes of radio advertising, whether
42
airing on national, regional, or local radio, whether by
purchase or donation
For Candidates/Registered Not more than an aggregate total of sixty (60) minutes of
Political parties for a Local television advertising, whether appearing on national,
Elective Position regional, or local, free or cable television, and ninety (90)
minutes of radio advertising, whether airing on national,
regional, or local radio, whether by purchase or donation.
In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias,
color motifs, symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned
together in the broadcast election propaganda or advertisements, the length of time during which they
appear or are being mentioned or promoted will be counted against the airtime limits allotted for the
said candidates or parties and the cost of the said advertisement will likewise be considered as their
expenditures, regardless of whoever paid for the advertisements or to whom the said advertisements
were donated.
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent
Comelec without consultation with the candidates for the 2013 elections, affected parties such as media
organizations, as well as the general public. Worse, said change was put into effect without explaining
the basis therefor and without showing any data in support of such change. Respondent Comelec merely
maintained that such action "is meant to level the playing field between the moneyed candidates and
those who don i have enough resources," without particularizing the empirical data upon which such a
sweeping statement was based. This was evident in the public hearing held on 31 January 2013 where
petitioner GMA, thru counsel, explained that no empirical data on he excesses or abuses of broadcast
media were brought to the attention of the public by respondent Comelec, or even stated in the
Comelec
Resolution No. 9615. Thus –
Chairman Brillantes: So if we can regulate and amplify, we may amplify meaning we can expand if we
want to. But the authority of the Commission is if we do not want to amplify and we think that the 120
or 180 is okay we cannot be compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila: But with due respect Your Honor, I think the basis of the resolution is found in the law and
the law has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes: No, the change is not there, the right to amplify is with the Commission on
Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the Commission felt that per
station or per network is the rule then that is the prerogative of the Commission then they could amplify
it to expand it. If the current Commission feels that 120 is enough for the particular medium like TV and
180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?
Atty. Lucila: We are not questioning the authority of the Honorable Commission to regulate Your Honor,
we are just raising our concern on the manner of regulation because as it is right now, there is a
changing mode or sentiments of the Commission and the public has the right to know, was there

rampant overspending on political ads in 2010, we were not informed Your Honor. Was there abuse of
the media in 2010, we were not informed Your Honor. So we would like to know what is the basis of the
sudden change in this limitation, Your Honor .. And law must have a consistent interpretation that [is]our
position, Your Honor.
Chairman Brillantes: But my initial interpretation, this is personal to this representation counsel, is that if
the Constitution allows us to regulate and then it gives us the prerogative to amplify then the
prerogative to amplify you should leave this to the discretion of the Commission. Which means if
previous Commissions felt that expanding it should be part of our authority that was a valid exercise if
we reduce it to what is provided for by law which is 120-180 per medium, TV, radio, that is also within
the law and that is still within our prerogative as provided for by the Constitution. If you say we have to
expose the candidates to the public then I think the reaction should come, the negative reaction should
come from the candidates not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila: Well, our interest Your Honor is to participate in this election Your Honor and we have been
constantly (sic) as the resolution says and even in the part involved because you will be getting some
affirmative action time coming from the media itself and Comelec time coming from the media itself. So
we could like to be both involved in the whole process of the exercise of the freedom of suffrage Your
Honor.
Chairman Brillantes: Yes, but the very essence of the Constitutional provision as well as the provision of
9006 is actually to level the playing field. That should be the paramount consideration. If we allow
everybody to make use of all their time and all radio time and TV time then there will be practically
unlimited use of the mass media ....
Atty. Lucila: Was there in 2010 Your Honor, was there any data to support that there was an unlimited
and abuse of a (sic) political ads in the mass media that became the basis of this change in interpretation
Your Honor? We would like to know about it Your Honor.
Chairman Brillantes: What do you think there was no abuse in 201 O?
Atty. Lucila: As far as the network is concern, there was none Your Honor.
Chairman Brillantes: There was none ..... .
Atty. Lucila: I'm sorry, Your Honor ...
Chairman Brillantes: Yes, there was no abuse, okay, but there was some advantage given to those who
took ... who had the more moneyed candidates took advantage of it.
Atty. Lucila: But that is the fact in life, Your Honor there are poor candidates, there are rich candidates.
No amount of law or regulation can even level the playing filed (sic) as far as the economic station in life
of the candidates are concern (sic) our Honor.38
Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went
on to allege that:
43
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a),
respondent Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the cliched explanation of respondent Comelec (i.e. leveling the
playing field) in its published statements which in itself is a mere reiteration of the rationale for the
enactment of the political ad ban of Republic Act No. 6646, and which has likewise been foisted when
said political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not have any other basis for coming up with a
new manner of determining allowable time limits except its own idea as to what should be the maximum
number of minutes based on its exercise of discretion as to how to level the playing field. The same could
be encapsulized in the remark of the COMELEC Chairman that "if the Constitution allows us to regulate
and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to
the discretion of the Commission."40
The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.
b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and
implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce
election laws but it cannot exercise its powers without limitations - or reasonable basis. It could not
simply adopt measures or regulations just because it feels that it is the right thing to do, in so far as it
might be concerned. It does have discretion, but such discretion is something that must be exercised
within the bounds and intent of the law. The COMELEC is not free to simply change the rules especially if
it has consistently interpreted a legal provision in a particular manner in the past. If ever it has to change
the rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the
Resolution, the respondent did not fully explain or justify the change in computing the airtime allowed
candidates and political parties, except to make reference to the need to "level the playing field." If the
"per station" basis was deemed enough to comply with that objective in the past, why should it now be
suddenly inadequate? And, the short answer to that from the respondent, in a manner which smacks of
overbearing exercise of discretion, is that it is within the discretion of the COMELEC. As quoted in the
transcript, "the right to amplify is with the COMELEC. Nobody can encroach in our right to amplify. Now,
if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of
the Commission then they could amplify it to expand it. If the current Commission feels that 120 is
enough for the particular medium like TV and 180 for radio, that is our prerogative. How can you
encroach and what is unconstitutional about it?"41
There is something basically wrong with that manner of explaining changes in administrative rules. For
one, it does not really provide a good basis for change. For another, those affected by such rules must be
given a better explanation why the previous rules are no longer good enough. As the Court has said in
one case:
While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC
slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual honesty,
that if an administrative agency decides inconsistently with previous action, that it explain thoroughly
why a different result is warranted, or ?f need be, why the previous standards should no longer apply or
should be overturned. Such explanation is warranted in order to sufficiently establish a decision as

having rational basis. Any inconsistent decision lacking thorough, ratiocination in support may be struck
down as being arbitrary. And any decision with absolutely nothing to support it is a nullity.42
What the COMELEC came up with does not measure up to that level of requirement and accountability
which elevates administrative rules to the level of respectability and acceptability. Those governed by
administrative regulations are entitled to a reasonable and rational basis for any changes in those rules
by which they are supposed to live by, especially if there is a radical departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based
on the totality of possible broadcast in all television or radio stations. Senator Cayetano has called our
attention to the legislative intent relative to the airtime allowed - that it should be on a "per station"
basis.43
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No. 6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If under the previous law, no candidate was allowed to
directly buy or procure on his own his broadcast or print campaign advertisements, and that he must get
it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her from that restriction
and allowed him or her to broadcast time or print space subject to the limitations set out in the law.
Congress, in enacting R.A. No. 9006, felt that the previous law was not an effective and efficient way of
giving voice to the people. Noting the debilitating effects of the previous law on the right of suffrage and
Philippine democracy, Congress decided to repeal such rule by enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous
law, the sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646. In
view of the importance of their appeal in connection with the thrusts of the bill, I hereby quote these
sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
44
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed
matter urging voters to vote for or against any candidate unless they hear the names and
addresses of the printed and payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster,
balloons and the like, of whatever size, shape, form or kind, advertising for or against any
candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets,
such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials,
wallets, shirts, hats, bandannas, matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts
advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or against any
candidate by means of cinematography, audio-visual units or other screen projections except
telecasts which may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge airtime for
campaign and other political purposes except as authorized in this Code under the rules and
regulations promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom
down by the representative of the Commission upon specific authority of the Commission." "SEC. 10.
Common Poster Areas. - The Commission shall designate common poster areas in strategic public places
such as markets, barangay centers and the like wherein candidates can post, display or exhibit election
propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan private
or civic organizations which the Commission may authorize whenever available, after due notice and
hearing, in strategic areas where it may readily be seen or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of charge, if feasible,
equitably and impartially among the candidates in the province, city or municipality. "SEC. 11.
Prohibite,d Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post,
display or puolicly exhibit any election propaganda in any place, whether private or public, except in
common poster areas and/or billboards provided in the immediately preceding section, at the
candidate's own residence, or at the campaign headquarters of the candidate or political party:
Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet
in area; Provided, further, That at the site of and on the occasion of a public meeting or rally, streamers,
not more than two (2) feet and not exceeding three (3) feet by eight (8) each may be displayed five (5)
days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after
said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or give for free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Section 90 and 92 of Batas

Pambansa Big. 881. Any mass media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence from his work as such during the
campaign."
The repeal of the provision on the Common Poster Area implements the strong recommendations of the
Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by the
Supreme Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March
1992. Here a unanimous Supreme Court ruled: The COMELEC's prohibition on the posting of decals and
stickers on "mobile" places whether public or private except [in] designated areas provided for by the
COMELEC itself is null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742. In
so doing, we move one step towards further ensuring "free, orderly, honest, peaceful and credible
elections" as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by which the candidates, political parties, citizens and other
stake holders in the periodic electoral exercise may be given a chance to fully explain and expound on
their candidacies and platforms of governance, and for the electorate to be given a chance to know
better the personalities behind the candidates. In this regard, the media is also given a very important
part in that undertaking of providing the means by which the political exercise becomes an interactive
process. All of these would be undermined and frustrated with the kind of regulation that the
respondent came up with.
The respondent gave its own understanding of the import of the legislative deliberations on the adoption
of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or
political party aggregate total airtime limits on political advertisements and election propaganda. This is
evidenced by the dropping of the "per day per station" language embodied in both versions of the House
of Representatives and Senate bills in favour of the "each candidate" and "not more than" limitations
now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
A) The total airtime available to the candidate and political party, whether by purchase or by donation,
shall be limited to five (5) minutes per day in each television, cable television and radio stations during
the applicable campaign period.
Senate Bill No. 1742:
45
SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates shall have
equal access to media space and time. The following guidelines may be amplified by the COMELEC.
2. The total airtime available for each registered party and bona fide candidate whether by purchase or
donation shall not exceed a total of one (1) minute per day per television or radio station. (Emphasis
supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature
intended the computation to be on per station basis, it could have left the original "per day per station"
formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that
the COMELEC wants this Court to put on the final language of the law. If anything, the change in
language meant that the computation must not be based on a "per day" basis for each television or radio
station. The same could not therefore lend itself to an understanding that the total allowable time is to
be done on an aggregate basis for all television or radio stations. Clearly, the respondent in this instance
went beyond its legal mandate when it provided for rules beyond what was contemplated by the law it is
supposed to implement. As we held in Lakin, Jr. v. Commission on Elections:47
The COMELEC, despite its role as the implementing arm of the Government in the enforcement and
administration of all laws and regulations relative to the conduct of an election, has neither the authority
nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always be in accord with the law to be implemented, and
should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with
the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative
authority must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs, because
an administrative agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not add
anything but merely reworded and rephrased the statutory provision did not persuade the Court. With
more reason here since the COMELEC not only reworded or rephrased the statutory provision - it
practically replaced it with its own idea of what the law should be, a matter that certainly is not within its
authority. As the Court said in Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a public official exercises power, not rights.
The government itself is merely an agency through which the will of the state is expressed and enforced.
Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As
such there is no presumption that they are empowered to act. There must be a delegation of such
authority, either express or implied. In the absence of a valid grant, they are devoid of power. What they
do suffers from a fatal infirmity. That principle cannot be sufficiently stressed. In the appropriate
language of Chief Justice Hughes: "It must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute." Neither the high dignity of the office nor the righteousness of
the motive then is an acceptable substitute. Otherwise the rule of law becomes a myth. Such an
eventuality, we must take all pains to avoid.50

So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional
guaranty of freedom of expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is
said. And where there is a need to reach a large audience, the need to access the means and media for
such dissemination becomes critical. This is where the press and broadcast media come along. At the
same time, the right to speak and to reach out would not be meaningful if it is just a token ability to be
heard by a few. It must be coupled with substantially reasonable means by which the communicator and
the audience could effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its adoption
of the "aggregate-based" airtime limits unreasonably restricts the guaranteed freedom of speech and of
the press.
Political speech is one of the most important expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy."51 Accordingly, the same must remain unfettered unless
otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests, an American case observed:
A restriction on the amount of money a person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by restricting the number of issues discussed,
the depth of their exploration, and the size of the audience reached. This is because virtually every
means of communicating ideas in today's mass society requires the expenditure of money. The
distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches
and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing
dependence on television, radio, and other mass media for news and information has made these
expensive modes of communication indispensable instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a
clearly identified candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude all
citizens and groups except candidates, political parties, and the institutional press from any significant
use of the most effective modes of communication. Although the Act's limitations on expenditures by
campaign organizations and political parties provide substantially greater room for discussion and
debate, they would have required restrictions in the scope of a number of past congressional and
Presidential campaigns and would operate to constrain campaigning by candidates who raise sums in
excess of the spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an
unreasonable basis for determining the allowable air time that candidates and political parties may avail
of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have 120 minutes to utilize for his political
advertisements in television during the whole campaign period of 88 days, or will only have
81.81 seconds per day TV exposure allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal allocation, he will only have 27.27
46
seconds of airtime per network per day. This barely translates to 1 advertisement spot on a
30-second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's coverage, it
will be difficult for 1 advertising spot to make a sensible and feasible communication to the
public, or in political propaganda, to "make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to
barely three 30-second advertising spots in television on a daily basis using the same
assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the
commercial advertisements in television are viewed by only 39.2% of the average total day
household audience if such advertisements are placed with petitioner GMA, the leading
television network nationwide and in Mega Manila. In effect, under the restrictive aggregate
airtime limits in the New Rules, the three 30-second political advertisements of a candidate in
petitioner GMA will only be communicated to barely 40% of the viewing audience, not even
the voting population, but only in Mega Manila, which is defined by AGB Nielsen Philippines
to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna,
Rizal, Batangas and Pampanga. Consequently, given the voting population distribution and
the drastically reduced supply of airtime as a result of the New Rules' aggregate airtime limits,
a national candidate will be forced to use all of his airtime for political advertisements in
television only in urban areas such as Mega Manila as a political campaign tool to achieve
maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be
informed of the candidates in the national elections, and the said candidates also enjoy the
right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as
it unduly restricts and constrains the ability of candidates and political parties to reach out and
communicate with the people. Here, the adverted reason for imposing the "aggregate-based" airtime
limits - leveling the playing field - does not constitute a compelling state interest which would justify such
a substantial restriction on the freedom of candidates and political parties to communicate their ideas,
philosophies, platforms and programs of government. And, this is specially so in the absence of a clear-
cut basis for the imposition of such a prohibitive measure. In this particular instance, what the COMELEC
has done is analogous to letting a bird fly after one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast
time when we consider that the Philippines is not only composed of so many islands. There are also a lot
of languages and dialects spoken among the citizens across the country. Accordingly, for a national
candidate to really reach out to as many of the electorates as possible, then it might also be necessary
that he conveys his message through his advertisements in languages and dialects that the people may
more readily understand and relate to. To add all of these airtimes in different dialects would greatly
hamper the ability of such candidate to express himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most costeffective medium of dissemination.
Even a slight increase in television exposure can significantly boost a candidate's popularity, name recall

and electability."54 If that be so, then drastically curtailing the ability of a candidate to effectively reach
out to the electorate would unjustifiably curtail his freedom to speak as a means of connecting with the
people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The press was to serve the governed,
not the governors. The Government's power to censor the press was abolished so that the press would
remain forever free to censure the Government. The press was protected so that it could bare the
secrets of government and inform the people. Only a free and unrestrained press can effectively expose
deception in government."55
In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a
sounding board, the people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the people to determine
their own destiny through the choice of leaders they may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the people to be adequately informed for the
intelligent exercise of such birthright. It was said that:
x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may
be the modality and form devised, must continue to be the means by which the great reservoir of power
must be emptied into the receptacular agencies wrought by the people through their Constitution in the
interest of good government and the common weal. Republicanism, in so far as it implies the adoption of
a representative type of government, necessarily points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of the established authority. He has a voice in his
Government and whenever possible it is the solemn duty of the judiciary, when called upon to act in
justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is the reason for
the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. x x
x56 It has also been said that "[ c ]ompetition in ideas and governmental policies is at the core of our
electoral process and of the First Amendment freedoms."57 Candidates and political parties need
adequate breathing space - including the means to disseminate their ideas. This could not be reasonably
addressed by the very restrictive manner by which the respondent implemented the time limits in regard
to political advertisements in the broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing
on January 31, 2013 to explain what it had done, particularly on the aggregate-based air time limits. This
circumstance also renders the new regulation, particularly on the adoption of the aggregate-based
airtime limit, questionable. It must not be overlooked that the new Resolution introduced a radical
change in the manner in which the rules on airtime for political advertisements are to be reckoned. As
such there is a need for adequate and effective means by which they may be adopted, disseminated and
implemented. In this regard, it is not enough that they be published - or explained - after they have been
adopted.
47
While it is true that the COMELEC is an independent office and not a mere administrative agency under
the Executive Department, rules which apply to the latter must also be deemed to similarly apply to the
former, not as a matter of administrative convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role that the COMELEC plays in the life of the
nation. Thus, whatever might have been said in Commissioner of Internal Revenue v. Court of
Appeals,58 should also apply mutatis mutandis to the COMELEC when it comes to promulgating rules and
regulations which adversely affect, or impose a heavy and substantial burden on, the citizenry in a
matter that implicates the very nature of government we have adopted:
It should be understandable that when an administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially adds to or increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to
be duly informed, before that new issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances under which it has been issued,
convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the process
the previous holdings of past Commissioners) or merely as construing Section 142(c)(l) of the NIRC, as
amended, but has, in fact and most importantly, been made in order to place "Hope Luxury," "Premium
More" and "Champion" within the classification of locally manufactured cigarettes bearing foreign
brands and to thereby have them covered by RA 7654. Specifically, the new law would have its
amendatory provisions applied to locally manufactured cigarettes which at the time of its effectivity
were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply interpreted the law;
verily, it legislated under its quasi-legislative authority. The due observance of the requirements of
notice, of hearing, and of publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any
governmental rule or regulation must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to the purpose or objective of the
government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as unreasonable. It
explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations
nationwide and 8 originating television stations (including its main transmitter in Quezon City)
which are authorized to dechain national programs for airing and insertion of local content
and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an
aggregate basis and considering that said Rules declare it unlawful in Section 7( d) thereof for
a radio, television station or other mass media to sell or give for free airtime to a candidate in
excess of that allowed by law or by said New Rules:
 48

"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is
unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or cable television station, or other
mass media, or any person making use of the mass media to sell or to give free of charge print
space or air time for campaign or election propaganda purposes to any candidate or party in
excess of the size, duration or frequency authorized by law or these rules;
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid administrative
or criminal liability would be unfair, cruel and oppressive.
5.43 In the present situation wherein airtime minutes shall be shared by all television and
radio stations, broadcast mass media organizations would surely encounter insurmountable
difficulties in monitoring the airtime minutes spent by the numerous candidates for various
elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there
are 372 television stations and 398 AM and 800 FM radio stations nationwide as of June 2012.
In addition, there are 1, 113 cable TV providers authorized by the NTC to operate within the
country as of the said date.
The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more
to be the result of a misappreciation of the real import of the regulation rather than a real and present
threat to its broadcast activities. The Court is more in agreement with the respondent when it explained
that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of the
allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other analogous record on specified dates (Section
9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all contract for
advertising, promoting or opposing any political party or the candidacy of any person for public office
within five (5) days after its signing (Section 6.3, R.A. 9006).
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real
time. GMA grossly exaggerates when it claims that the non-existent duty would require them to hire and
train an astounding additional 39,055 personnel working on eight-hour shifts all over the country.61
The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for
the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third
paragraph of Section 9 (a). As revised, the provision now reads:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide
5.45 Given such numbers of broadcast entities and the necessity to monitor political
news documentary, if the appearance of the candidate is incidental to the presentation of the subject or
advertisements pursuant to the New Rules, petitioner OMA estimates that monitoring
subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including
television broadcasts of all authorized television station would involve 7,440 manhours per
but not limited to events sanctioned by the Commission on Elections, political conventions, and similar
day. To aggravate matters, since a candidate may also spend his/her broadcasting minutes on
activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision.
cable TV, additional 281,040 manhours per day would have to be spent in monitoring the
For purposes of monitoring by the COMELEC and ensuring that parties and candidates were afforded
various channels carried by cable TV throughout the Philippines. As far as radio broadcasts
equal opportunities to promote their candidacy, the media entity shall give prior notice to the COMELEC,
(both AM and FM stations) are concerned, around 23,960 manhours per day would have to
through the appropriate Regional Election Director (RED), or in the case of the National Capital Region
be devoted by petitioner OMA to obtain an accurate and timely determination of a political
(NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable,
candidate's remaining airtime minutes. During the campaign period, petitioner OMA would
the notice shall be sent within twenty-four (24) hours from the first broadcast or
have to spend an estimated 27,494,720 manhours in monitoring the election campaign
publication.1awp++i1 Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
commercials of the different candidates in the country.1âwphi1
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot
coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of these
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further Rules."63
estimates that it would need to engage and train 39,055 additional persons on an eight-hour
shift, and assign them all over the country to perform the required monitoring of radio,
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement,
television and cable TV broadcasts. In addition, it would likewise need to allot radio,
contending, among others, that it constitutes prior restraint. The Court finds otherwise. Such a
television, recording equipment and computers, as well as telecommunications equipment,
requirement is a reasonable means adopted by the COMELEC to ensure that parties and candidates are
for this surveillance and monitoring exercise, thus imputing additional costs to the company.
afforded equal opportunities to promote their respective candidacies. Unlike the restrictive aggregate-
Attached herewith are the computations explaining how the afore-said figures were derived
based airtime limits, the directive to give prior notice is not unduly burdensome and unreasonable, much
and the conservative assumptions made by petitioner OMA in reaching said figures, as Annex
less could it be characterized as prior restraint since there is no restriction on dissemination of
"H".
information before broadcast. Additionally, it is relevant to point out that in the original Resolution No.
9615, the paragraph in issue was worded in this wise:
5.47 Needless to say, such time, manpower requirements, expense and effort would have to
be replicated by each and every radio station to ensure that they have properly monitored
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide
around 33 national and more than 40,000 local candidates' airtime minutes and thus, prevent
news documentary, if the appearance of the candidate is incidental to the presentation of the subject or
any risk of administrative and criminal liability.60

subjects covered by the news documentary, or on-the-spot coverage of bona fide news events, including
but not limited to events sanctioned by the Commission on Elections, political conventions, and similar
activities, shall not be deemed to be broadcast election propaganda within the meaning of this provision.
To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or
entities must show that (1) prior approval of the Commission was secured; and (2) candidates and
parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed
upon them under Sections 10 and 14 of these Rules.64
Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had
done - to modify the requirement from "prior approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature of
a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair
elections without having to undertake any chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it
similarly concludes that the "right to reply" provision is reasonable and consistent with the constitutional
mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:
SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona fide
candidates shall have the right to reply to charges published or aired against them. The reply shall be
given publicity by the newspaper, television, and/or radio station which first printed or aired the charges
with the same prominence or in the same page or section or in the same time slot as the first statement.
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right
to reply by submitting within a nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the COMELEC, through the appropriate
RED. The claim shall include a detailed enumeration of the circumstances and occurrences which warrant
the invocation of the right to reply and must be accompanied by supporting evidence, such a copy of the
publication or recording of the television or radio broadcast, as the case may be. If the supporting
evidence is not yet available due to circumstances beyond the power of the claimant, the latter shall
supplement his claim as soon as the supporting evidence becomes available, without delay on the part of
the claimant. The claimant must likewise furnish a copy of the verified claim and its attachments to the
media outlet concerned prior to the filing of the claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from receipt
thereof, including supporting evidence, and if circumstances warrant, give notice to the media outlet
involved for appropriate action, which shall, within forty-eight ( 48) hours, submit its comment, answer
or response to the RED, explaining the action it has taken to address the claim. The media outlet must
likewise furnish a copy of the said comment, answer or response to the claimant invoking the right to
reply.
49
Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate
petition and/or complaint before the Commission on Elections or its field offices, which shall be
endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground of
prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or of the
freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests -
the constitutional mandate granting candidates the right to reply and the inviolability of the
constitutional freedom of expression, speech, and the press - will show that the Right to
Reply, as provided for in the Assailed Resolution, is an impermissible restraint on these
fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test)
with respect to the present controversy will show that the Constitution does not tilt the
balance in favor of the Right to Reply provision in the Assailed Resolution and the supposed
governmental interest it attempts to further.65
The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible
elections, a task addressed to the COMELEC to provide for a right to reply.66 Given that express
constitutional mandate, it could be seen that the Fundamental Law itself has weighed in on the balance
to be struck between the freedom of the press and the right to reply. Accordingly, one is not merely to
see the equation as purely between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible elections would
necessarily have to be factored in trying to see where the balance lies between press and the demands
of a right-to-reply.
Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are merely
given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of some form of public
service. x x x68
Relevant to this aspect are these passages from an American Supreme Court decision with regard to
broadcasting, right to reply requirements, and the limitations on speech:
We have long recognized that each medium of expression presents special First Amendment problems.
Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of
communication, it is broadcasting that has received the most limited First Amendment protection. Thus,
although other speakers cannot be licensed except under laws that carefully define and narrow official
discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that
such an action would serve "the public interest, convenience, and necessity." Similarly, although the First
 50

Amendment protects newspaper publishers from being required to print the replies of those whom they
criticize, Miami Herald Publishing Co. v. Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no
such protection to broadcasters; on the contrary, they must give free time to the victims of their
criticism. Red Lion Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the present case. First, the
broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently
offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also
in the privacy of the home, where the individual's right to be left alone plainly outweighs the First
Amendment rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484.
Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content. To say that one may avoid further
offense by turning off the radio when he hears indecent language is like saying that the remedy for an
assault is to run away after the first blow. One may hang up on an indecent phone call, but that option
does not give the caller a constitutional immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's
written message might have been incomprehensible to a first grader, Pacifica's broadcast could have
enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from
the young without restricting the expression at its source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to children. We held in Ginsberg v.
New York, 390 US 629, that the government's interest in the "well-being of its youth" and in supporting
"parents' claim to authority in their own household" justified the regulation of otherwise protected
expression. The ease with which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech and the press over so
many other values of society do not readily lend itself to this particular matter. Instead, additional
weight should be accorded on the constitutional directive to afford a right to reply. If there was no such
mandate, then the submissions of petitioners may more easily commend themselves for this Court's
acceptance. But as noted above, this is not the case. Their arguments simplistically provide minimal
importance to that constitutional command to the point of marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press,
the latter must be properly viewed in context as being necessarily made to accommodate the
imperatives of fairness by giving teeth and substance to the right to reply requirement.
FACTS:
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 limiting the broadcast and radio advertisements of candidates and
political parties for national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend that such restrictive
regulation on allowable broadcast time violates freedom of the press, impairs the people’s right to
suffrage as well as their right to information relative to the exercise of their right to choose who to elect
during the forth coming elections
Section 9 (a) provides for an “aggregate total” airtime instead of the previous “per station” airtime for
political campaigns or advertisements, and also required prior COMELEC approval for candidates’
television and radio guestings and appearances.
ISSUE: Whether or not Section 9 (a) of COMELEC Resolution No. 9615 on airtimelimits violates freedom
of expression, of speech and of the press.
HELD:
YES. The Court held that the assailed rule on “aggregate-based” airtime limits is unreasonable and
arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out
and communicate with the people. Here, the adverted reason for imposing the “aggregate-
based” airtime limits – leveling the playing field – does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of government. And, this is specially so
in the absence of a clear-cut basis for the imposition of such a prohibitive measure.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast
time when we consider that the Philippines is not only composed of so many islands. There are also a lot
of languages and dialects spoken among the citizens across the country. Accordingly, for a national
candidate to really reach out to as many of the electorates as possible, then it might also be necessary
that he conveys his message through his advertisements in languages and dialects that the people may
more readily understand and relate to. To add all of these airtimes in different dialects would greatly
hamper the ability of such candidate to express himself – a form of suppression of his political speech.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution
No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL
and VOID. The constitutionality of the remaining provisions of Resolution No. 9615, as amended by
Resolution No. 9631, is upheld and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby
made PERMANENT.

SO ORDERED.

TOPIC: Freedom of expression, of speech and of the press, airtime limits

 51

EN BANC Magsaysay, Mitos Cayetano, Alan Peter

G.R. No. 205728 January 21, 2015 Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE
BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners, Villar, Cynthia Hontiveros, Risa
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. Party List Buhay Legarda, Loren
MAJARUCON, Respondents. Party List Ang Pamilya Party List Gabriela

DECISION Party List Akbayan

Party List Bayan Muna

LEONEN, J.:
Party List Anak Pawis

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the fundamental
and preferred right to expression of the electorate during political contests no matter how seemingly
benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is significant and
of first impression. We are asked to decide whether the Commission on Elections (COMELEC) has the
competence to limit expressions made by the citizens — who are not candidates — during elections.
During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by
any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013
elections, but not of politicians who helped in the passage of the RH Law but were not candidates for
that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop
Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement of two feet
(2’) by three feet (3’).9

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction
and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given
Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013. a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and
the availment of legal remedies, the tarpaulin be allowed to remain.11

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral within public view. The first tarpaulin contains the
message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or Republic Act No. 10354.
The second tarpaulin is the subject of the present case.4 This tarpaulin contains the heading "Conscience
Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay"
with an "X" mark.5 The electoral candidates were classified according to their vote on the adoption of
Republic Act No. 10354, otherwise known as the RH Law.6Those who voted for the passing of the law
were classified by petitioners as comprising "Team Patay," while those who voted against it form "Team
Buhay":7
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of
the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The letter of
COMELEC Law Department was silenton the remedies available to petitioners. The letter provides as
follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given
you notice on February 22, 2013 as regards the election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups with the following names and
messages, particularly described as follows:

TEAM BUHAY TEAM PATAY Material size : six feet (6’) by ten feet (10’)

Estrada, JV Angara, Juan Edgardo

Description : FULL COLOR TARPAULIN
Honasan, Gregorio Casiño, Teddy
 52

Image of : SEE ATTACHED PICTURES The issues, which also served as guide for the oral arguments, are:20

Message : CONSCIENCE VOTE (ANTI RH) TEAM I.

BUHAY; (PRO RH) TEAM PATAY WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE
Location : POSTED ON THE CHURCH VICINITY
65 PETITION[;]
OF THE DIOCESE OF BACOLOD CITY

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND

The three (3) – day notice expired on February 25, 2013.
JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of the
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by three
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW THIS
feet (3’), please order/cause the immediate removal of said election propaganda material, otherwise, we
COURT TO TAKE COGNIZANCE OF THE CASE[;]
shall be constrained to file an election offense case against you.

II.
We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT"
OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
Thank you and God Bless!

III.
ATTY. ESMERALDA AMORA-LADRA
Director IV13
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION
PROPAGANDA/POLITICAL ADVERTISEMENT[;]
Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22, A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course; (2) a WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15 IV.

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution. Hence,
respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON AND THE 27
FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION
OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda PROCEDURAL ISSUES
within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19

I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its adjudicatory
powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise
objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a special civil
action, there must also be a showing that there be no plain, speedy, and adequate remedy in the
ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court, whose
power to review is "limited only to final decisions, rulings and orders of the COMELEC En Banc rendered
in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents claim that the assailed
notice and letter are reviewable only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the
Constitution24 on COMELEC’s power to decide all questions affecting elections.25 Respondents invoke the
cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v.
COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how judicialintervention is limited to final
decisions, orders, rulings and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election
protest.32 At issue was the validity of the promulgation of a COMELEC Division resolution.33 No motion
for reconsideration was filed to raise this issue before the COMELEC En Banc. This court declared that it
did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on Elections.35 (Emphasis in
the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to
this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First Division
issued a status quo ante order against the Regional Trial Court executing its decision pending
appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
53
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests —
despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the
COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving
candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main
election protest case.43 Sorianoapplied the general rule that only final orders should be questioned with
this court. The ponencia for this court, however, acknowledged the exceptions to the general rule in
ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner
could not qualify for the 2007 elections due to the findings in an administrative case that he engaged in
vote buying in the 1995 elections.46No motion for reconsideration was filed before the COMELEC En
Banc. This court, however, took cognizance of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty
candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her motion for
reconsideration to dismiss the election protest petition for lack of form and substance.49 This court
clarified the general rule and refused to take cognizance of the review of the COMELEC order. While
recognizing the exceptions in ABS-CBN, this court ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents
to oust this court from taking jurisdiction over this case. All these cases cited involve election protests or
disqualification cases filed by the losing candidate against the winning candidate.
 54

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or
quasi-judicial power. This case pertains to acts of COMELEC in the implementation of its regulatory
powers. When it issued the notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the
Respondents’ reliance on this provision is misplaced.
"chilling effect" caused by respondent COMELEC’s notice and letter.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction,
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of
gravely abused it. We are confronted with the question as to whether the COMELEC had any jurisdiction
jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering
at all with its acts threatening imminent criminal action effectively abridging meaningful political speech.
the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right to
freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54 It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free
speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the word
"affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive power to
The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
decide any and allquestions that arise during elections. COMELEC’s constitutional competencies during
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general class
elections should not operate to divest this court of its own jurisdiction.
to which the proceedings in question belong and is conferred by the sovereign authority which organizes
the court and defines its powers."55Definitely, the subject matter in this case is different from the cases
cited by respondents. The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This
provision provides for this court’s original jurisdiction over petitions for certiorari and prohibition. This
should be read alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
Constitution.
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people to
action. It is concerned with the sovereign right to change the contours of power whether through the
election of representatives in a republican government or the revision of the basic text of the Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion.
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation of Thus, the constitutionality of the notice and letter coming from COMELEC is within this court’s power to
the cogency of the message. Neither do we assess whether we should protect speech based on the review.
motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We protect
both speech and medium because the quality of this freedom in practice will define the quality of
During elections, we have the power and the duty to correct any grave abuse of discretion or any act
deliberation in our democratic society.
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under against government’s infringement of their fundamental rights. This constitutional mandate out weighs
the conditions in which it was issued and in view of the novelty of this case,it could result in a "chilling the jurisdiction vested with the COMELEC.
effect" that would affect other citizens who want their voices heard on issues during the elections. Other
citizens who wish to express their views regarding the election and other related issues may choose not
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural platform for raising grave abuse of discretion.
I.C
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows: Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly
filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor. 58 While respondents claim
that while there are exceptions to the general rule on hierarchy of courts, none of these are present in
this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the
policy is not to be ignored without serious consequences. The strictness of the policy is designed to
shield the Court from having to deal with causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks
that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not
be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised only where absolutely necessary or where serious and
important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to
actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional
Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers
must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial courts
do not only determine the facts from the evaluation of the evidence presented before them. They are
likewise competent to determine issues of law which may include the validity of an ordinance, statute, or
even an executive issuance in relation to the Constitution.67 To effectively perform these functions, they
are territorially organized into regions and then into branches. Their writs generally reach within those
territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the facts from
the evidence as these are physically presented before them. In many instances, the facts occur within
their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of
the constitutionality of such action. The consequences, of course, would be national in scope. There are,
55
however, some cases where resort to courts at their level would not be practical considering their
decisions could still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts
and law made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the
review of the actions of the trial court. But the Court of Appeals also has original jurisdiction over most
special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues thatmay not necessarily be novel unless
there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the
light of new circumstances or in the light of some confusions of bench or bar — existing precedents.
Rather than a court of first instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in respect of
the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power
to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it
for exceptionally compelling reasons69 or if warranted by the nature of the issues clearly and specifically
raised in the petition."70 As correctly pointed out by petitioners,71 we have provided exceptions to this
doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must
be addressed at the most immediate time. A direct resort to this court includes availing of the remedies
of certiorari and prohibition toassail the constitutionality of actions of both legislative and executive
branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has become
a rare occasion when private citizens actively engage the public in political discourse. To quote an
eminent political theorist:
[T]he 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.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political
decision-making is recognized. It deserves the highest protection the courts may provide, as public

participation in nation-building isa fundamental principle in our Constitution. As such, their right to
engage in free expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In these cases, the
imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen candidate,
but also the right to vocalize that choice to the public in general, in the hope of influencing their votes. It
may be said that in an election year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore, allows for the
immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may guide
the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of whether the
right of suffrage includes the right of freedom of expression. This is a question which this court has yet to
provide substantial answers to, through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court held
that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated in
its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on
whether COMELEC committed grave abuse of discretion or performed acts contrary to the Constitution
through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.
56
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In
Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that would
ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections: that constitutional body
would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the
lower courts, any ruling on their part would not have been binding for other citizens whom respondents
may place in the same situation. Besides, thiscourt affords great respect to the Constitution and the
powers and duties imposed upon COMELEC. Hence, a ruling by this court would be in the best interest of
respondents, in order that their actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation of
their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally
compelling reason to justify the direct resort to this court. The lack of other sufficient remedies in the
course of law alone is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found to
be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct
resort to this court. While generally, the hierarchy of courts is respected, the present case falls under the
recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question, hence
not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion in
Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may
be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all
that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the latter,
being one of general application, must yield to the specific demands of the Constitution. The freedom of

expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-enshrined rights
but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to media coverage and thereby be
equally perceived as giving real life to the candidates’ right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the
legislature deems to be best in giving life to the Constitutional mandate, is not for the Court to question;
it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on
their equal opportunities for media coverage of candidates and their right to freedom of expression. This
case concerns the right of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation of the political question
doctrine by respondents, this court is not proscribed from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter
which is to be exercised by the people in their primary political capacity, or that it has been specifically
delegated to some other department or particular officer of the government, withdiscretionary power to
act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In
political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by the
executive branch. Thus, the creation of the law is not limited by particular and specific facts that affect
the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific
case-to-case basis, where parties affected by the legal provision seek the courts’ understanding of the
law.
The complementary nature of the political and judicial branches of government is essential in order to
ensure that the rights of the general public are upheld at all times. In order to preserve this balance,
branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence dictates
that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
57
A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine is
used as a defense when the petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the law. In such situation,
presumptively, this court should act with deference. It will decline to void an act unless the exercise of
that power was so capricious and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming arguendo
that the COMELEC did have the discretion to choose the manner of regulation of the tarpaulin in
question, it cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is for the
latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an evolution since
the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has taken the
historical and social context of the case and the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in cases such as Daza v. Singson92 and Coseteng
v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times past,
this would have involved a quint essentially political question as it related to the dominance of political
parties in Congress. However, in these cases, this court exercised its power of judicial review noting that
the requirement of interpreting the constitutional provision involved the legality and not the wisdom of
a manner by which a constitutional duty or power was exercised. This approach was again reiterated in
Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa
political question did not bar an examination of whether the exercise of discretion was done with grave
abuse of discretion. In that case, this court ruled on the question of whether there was grave abuse of
discretion in the President’s use of his power to call out the armed forces to prevent and suppress
lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the resolution of
constitutional issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it
to exercise its power of judicial review expanding on principles that may avert catastrophe or resolve
social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary powers
are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved
concerns the validity of such discretionary powers or whether said powers are within the limits
prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such
review does not constitute a modification or correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the question of
the validity of the second impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief Justice Reynato Puno
elaborated on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." As well observed by retired
Justice Isagani Cruz, this expanded definition of judicial power considerably constricted the scope of
political question. He opined that the language luminously suggests that this duty (and power) is
available even against the executive and legislative departments including the President and the
Congress, in the exercise of their discretionary powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political question, as applied in the
following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present
Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into
areas which the Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate
cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
58
would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)
In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that
this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that a
political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or any
of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add that the
proper venue to assail the validity of the assailed issuances was in the course of an administrative
hearing to be conducted by COMELEC.104 In the event that an election offense is filed against petitioners
for posting the tarpaulin, they claim that petitioners should resort to the remedies prescribed in Rule 34
of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already
ripe for adjudication. Ripeness is the "prerequisite that something had by then been accomplished or
performed by either branch [or in this case, organ of government] before a court may come into the
picture."106
Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable
relevance especially during the elections. COMELEC’s letter threatening the filing of the election offense
against petitioners is already an actionable infringement of this right. The impending threat of criminal
litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their
pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of protected
expressions, political expression would occupy the highest rank, and among different kinds of political
expression, the subject of fair and honest elections would be at the top."108 Sovereignty resides in the
people.109 Political speech is a direct exercise of the sovereignty. The principle of exhaustion of
administrative remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when the
issue involved is purely a legal question; (c) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe administrative agency
concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary
whose acts as analter ego of the President bear the implied and assumed approval of the latter; (g) when
to require exhaustion of administrative remedies would be unreasonable; (h) when it would amount to a
nullification of a claim; (i) when the subject matter is a private land in land case proceedings; (j) whenthe
rule does not provide a plain, speedy and adequate remedy; or (k) when there are circumstances
indicating the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat
the assailed issuances violated their right to freedom of expression and the principle of separation of
church and state. This is a purely legal question. Second, the circumstances of the present case indicate
the urgency of judicial intervention considering the issue then on the RH Law as well as the upcoming
elections. Thus, to require the exhaustion of administrative remedies in this case would be
unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to except a
case from their operation when compelling reasons so warrant, or whenthe purpose of justice requires
it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit suspension of the rules is
discretionary upon the court".112Certainly, this case of first impression where COMELEC has threatenedto
prosecute private parties who seek to participate in the elections by calling attention to issues they want
debated by the publicin the manner they feel would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised
by a non-candidate in this case.
59
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision
prohibiting journalists from covering plebiscite issues on the day before and on plebiscite day.117 Sanidad
argued that the prohibition was a violation of the "constitutional guarantees of the freedom of
expression and of the press. . . ."118 We held that 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."119 This court found that "[m]edia practitioners exercising
their freedom of expression during plebiscite periods are neither the franchise holders nor the
candidates[,]"120 thus, their right to expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(7) Recommend to the Congress effective measures to minimize election spending, including limitation
of places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) Based on the enumeration
made on actsthat may be penalized, it will be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed
bythe assailed letter regarding the "election propaganda material posted on the church vicinity
promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in not more than ten (10) public places such as
plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12) by sixteen (16) feet
or its equivalent. Independent candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of which shall not exceed four (4)
by six (6) feet or its equivalent. Candidates may post any lawful propaganda material in private places
 60

with the consent of the owner thereof, and in public places or property which shall be allocated
equitably and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair
Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign
material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
brought by representatives of mass media and two candidates for office in the 1992 elections. They
argued that the prohibition on the sale and donation of space and time for political advertisements is
tantamount to censorship, which necessarily infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this
case does not apply as most of the petitioners were electoral candidates, unlike petitioners in the instant
case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act No. 6646,129 only
refers to a particular kind of media such as newspapers, radio broadcasting, or television.130 Justice
Feliciano emphasized that the provision did not infringe upon the right of reporters or broadcasters to
air their commentaries and opinions regarding the candidates, their qualifications, and program for
government. Compared to Sanidadwherein the columnists lost their ability to give their commentary on
the issues involving the plebiscite, National Press Clubdoes not involve the same infringement.

b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas and
those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting the same
shall be liable together with the candidates and other persons who caused the posting. It will be
presumed that the candidates and parties caused the posting of campaign materials outside the
common poster areas if they do not remove the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality where the unlawful election propaganda are
posted or displayed.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines
an"election campaign" as follows:
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the
election or defeat of a particular candidate or candidates to a public office which shall include:

Members of the PNP and other law enforcement agencies called upon by the Election Officeror other
(1) Forming organizations, associations, clubs, committees or other groups of persons for the
officials of the COMELEC shall apprehend the violators caught in the act, and file the appropriate charges
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
against them. (Emphasis supplied)

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
regulating the posting of campaign materials only apply to candidates and political parties, and
propaganda for or against a candidate;
petitioners are neither of the two.

(3) Making speeches, announcements or commentaries, or holding interviews for or against

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed
the election of any candidate for public office;
for all registered political parties, national, regional, sectoral parties or organizations participating under
the party-list elections and for all bona fide candidates seeking national and local elective positions
subject to the limitation on authorized expenses of candidates and political parties. . . ." Section 6 of (4) Publishing or distributing campaign literature or materials designed to support or oppose
COMELEC Resolution No. 9615 provides for a similar wording. These provisions show that election the election of any candidate; or
propaganda refers to matter done by or on behalf of and in coordination with candidates and political
parties. Some level of coordination with the candidates and political parties for whom the election
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
propaganda are released would ensure that these candidates and political parties maintain within the
authorized expenses limitation.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall
The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
not be considered as election campaign or partisan election activity. Public expressions or opinions or
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
discussions of probable issues in a forthcoming electionor on attributes of or criticisms against probable
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law. Respondents
candidates proposed to be nominated in a forthcoming political party convention shall not be construed
also cite National Press Club v. COMELEC126 in arguing that its regulatory power under the Constitution,
as part of any election campaign or partisan political activity contemplated under this Article. (Emphasis
to some extent, set a limit on the right to free speech during election period.127
supplied)

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This case was

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the election
or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either
appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right
to freedom of expression.
II.B
The violation of the constitutional right to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed
notice and letter ordering itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances
of 1927 of Manila for the public meeting and assembly organized by petitioner Primicias.134 Section 1119
requires a Mayor’s permit for the use of streets and public places for purposes such as athletic games,
sports, or celebration of national holidays.135 What was questioned was not a law but the Mayor’s refusal
to issue a permit for the holding of petitioner’s public meeting.136 Nevertheless, this court recognized the
constitutional right to freedom of speech, to peaceful assembly and to petition for redress of grievances,
albeit not absolute,137 and the petition for mandamus to compel respondent Mayor to issue the permit
was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419
where the COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from
conducting exit surveys.139 The right to freedom of expression was similarly upheld in this case and,
consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
61
All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the kind of society framed by
our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to the
freedom of speech and of the press provided in the US Constitution. The word "expression" was added in
the 1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it
says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND EXPRESSION
after the word "speech," because it is more expansive, it has a wider scope, and it would refer to means
of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none; the
amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech,
expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom itself as "[t]he
right to think is the beginning of freedom, and speech must be protected from the government because
speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication exists when "(1) a
speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes that
such actions will be taken by the audience in the manner intended; and (2) the audience so takes the
actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either accepting
the speech act’s claims or opposing them with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined

in the same course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring
into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the
religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the flag, sing
the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz discussed
how the salute is a symbolic manner of communication and a valid form of expression.150 He adds that
freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty not
to utter what is not in his mind. The salute is a symbolic manner of communication that conveys its
messageas clearly as the written or spoken word. As a valid form of expression, it cannot be compelled
any more than it can be prohibited in the face of valid religious objections like those raised in this
petition. To impose it on the petitioners is to deny them the right not to speak when their religion bids
them to be silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the unconventional
and even the bizarre or eccentric. The will of the majority prevails, but it cannot regiment thought by
prescribing the recitation by rote of its opinions or proscribing the assertion of unorthodox or unpopular
views as inthis case. The conscientious objections of the petitioners, no less than the impatience of those
who disagree with them, are protected by the Constitution. The State cannot make the individual speak
when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this
court has applied its precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is without
legal and factual basis and is exercised as impermissible restraint of artistic expression."153 This court
recognized that "[m]otion pictures are important both as a medium for the communication of ideas and
the expression of the artistic impulse."154 It adds that "every writer,actor, or producer, no matter what
medium of expression he may use, should be freed from the censor."155 This court found that "[the
Board’s] perception of what constitutes obscenity appears to be unduly restrictive."156 However, the
petition was dismissed solely on the ground that there were not enough votes for a ruling of grave abuse
of discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.
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First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier
to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier for
passengers inside moving vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the fonts and
images, the greater the probability that it will catch their attention and, thus, the greater the possibility
that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an
ordinary person’s perspective, those who post their messages in larger fonts care more about their
message than those who carry their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message. The effectivity of
communication sometimes relies on the emphasis put by the speakers and onthe credibility of the
speakers themselves. Certainly, larger segments of the public may tend to be more convinced of the
point made by authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of support,
larger spaces can allow for brief but memorable presentations of the candidates’ platforms for
governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to advocacies,
and contribute more to a more educated and reasoned electorate. A more educated electorate will
increase the possibilities of both good governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates or the political parties,
that speaks. Too often, the terms of public discussion during elections are framed and kept hostage by
brief and catchy but meaningless sound bites extolling the character of the candidate. Worse, elections
sideline political arguments and privilege the endorsement by celebrities. Rather than provide obstacles
to their speech, government should in fact encourage it. Between the candidates and the electorate, the
latter have the better incentive to demand discussion of the more important issues. Between the
candidates and the electorate, the former have better incentives to avoid difficult political standpoints
and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect the basic right to
freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government

positions to represent the people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes the right of the people to
criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should
thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle that
"debate on public issues should be uninhibited, robust,and wide open . . . [including even] unpleasantly
sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate good desired is better reached by [the] free trade in
ideas:"165
When men have realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas - that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon which their wishes
safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new ones.
This promotes both stability and change where recurring points may crystallize and weak ones may
develop. Of course, free speech is more than the right to approve existing political beliefs and economic
arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought that we
hate, no less than for the thought that agrees with us."168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger."169 It is in this context that we should guard against any curtailment of the
people’s right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but also political rights
essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment.Thru
these freedoms the citizens can participate not merely in the periodic establishment of the government
through their suffrage but also in the administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate
governmental officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis supplied)
63
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation, and
for the formation of identity and community spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals and the state - a free space for the
development of individual personality, distinct group identity, and dissident ideas - and a potential
source of opposition to the state."174 Free speech must be protected as the vehicle to find those who
have similar and shared values and ideals, to join together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against
majoritarian abuses perpetrated through [the] framework [of democratic governance]."175 Federalist
framers led by James Madison were concerned about two potentially vulnerable groups: "the citizenry at
large - majorities - who might be tyrannized or plundered by despotic federal officials"176 and the
minorities who may be oppressed by "dominant factions of the electorate [that] capture [the]
government for their own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its rulers, but to guard one part of the
society against the injustice of the other part."178 We should strive to ensure that free speech is
protected especially in light of any potential oppression against those who find themselves in the fringes
on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in
the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’"181 has been used to
describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and prevent people
from resorting to violence, there is a need for peaceful methods in making passionate dissent. This
includes "free expression and political participation"183 in that they can "vote for candidates who share
their views, petition their legislatures to [make or] change laws, . . . distribute literature alerting other
citizens of their concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must,
thus, be protected as a peaceful means of achieving one’s goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents
argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing candidates who
voted against the RH Law and rejecting those who voted for it.186 As such, it is subject to regulation by
COMELEC under its constitutional mandate.187 Election propaganda is defined under Section 1(4) of
COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand,
insignia, color motif, initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a
public office. In broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or
otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part of their advocacy campaign against the RH
Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders which
. . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this
court discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If human
rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities,
ofthe influential and powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination
of information to make more meaningful the equally vital right of suffrage."196 A similar idea appeared in
our jurisprudence as early as 1969, which was Justice Barredo’s concurring and dissenting opinion in
Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of principles
of our Constitution, "The Philippines is a republican state. Sovereignty resides in the people and all
government authority emanates from them" (Section 1, Article II). Translating this declaration into
actuality, the Philippines is a republic because and solely because the people in it can be governed only
by officials whom they themselves have placed in office by their votes. And in it is on this cornerstone
that I hold it tobe self-evident that when the freedoms of speech, press and peaceful assembly and
redress of grievances are being exercised in relation to suffrage or asa means to enjoy the inalienable
right of the qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism
are to be worthwhile, the conduct of public affairs by our officials must be allowed to suffer incessant
and unabating scrutiny, favorable or unfavorable, everyday and at all times. Every holder of power in our
government must be ready to undergo exposure any moment of the day or night, from January to
December every year, as it is only in this way that he can rightfully gain the confidence of the people. I
have no patience for those who would regard public dissection of the establishment as an attribute to be
indulged by the people only at certain periods of time. I consider the freedoms of speech, press and
peaceful assembly and redress of grievances, when exercised in the name of suffrage, as the very means
by which the right itself to vote can only be properly enjoyed.It stands to reason therefore, that suffrage
itself would be next to useless if these liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
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Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of speech,
e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctionshave therefore
been made in the treatment, analysis, and evaluation ofthe permissible scope of restrictions on various
categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and
obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be
penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined as
speech that does "no more than propose a commercial transaction."202 The expression resulting from the
content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting opinion, he
discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it subject of the
regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue,
by itself,is not an electoralmatter, the slant that the petitioners gave the issue converted the non-
election issue into a live election one hence, Team Buhay and Team Patay and the plea to support one
and oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates and political parties,
this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or posted "in
return for consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations
implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of this case
requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo, brand,
insignia, color motif, initials, and other symbol or graphic representation that is capable of being
associated with a candidate or party, and is intended to draw the attention of the public or a segment
thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a
public office. In broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political advertising includes matters, not
falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or
otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the
election or defeat of a particular candidate or candidates to a public office, and shall include any of the
following:
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts
of election campaigning or partisan politicalactivity unless expressed by government officials in the
Executive Department, the Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be
deemed narrowly tailored only in relation to the facts and issues in this case. It also appears that such
wording in COMELEC Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the law it
implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public
affairs. We acknowledged that free speech includes the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of official dom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus
can the intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this court
noted every citizen’s privilege to criticize his or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government
set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds that
he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing from
the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their government contributes
to every society’s goal for development. It puts forward matters that may be changed for the better and
ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
65
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media
from selling print space and air time for campaign except to the COMELEC, to be a democracy-enhancing
measure.216This court mentioned how "discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are supporting
what issues."218 At the heart of democracy is every advocate’s right to make known what the people
need to know,219 while the meaningful exercise of one’s right of suffrage includes the right of every voter
to know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the
freedom of expression especially in relation to information that ensures the meaningful exercise of the
right of suffrage:
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. 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.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression and must be protected by
this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and
even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still
subjectto some restrictions. The degree of restriction may depend on whether the regulation is content-
based or content-neutral.223 Content-based regulations can either be based on the viewpoint of the
speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order
was made simply because petitioners failed to comply with the maximum size limitation for lawful
election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based as it applies only
to political speech and not to other forms of speech such as commercial speech.225 "[A]ssuming

arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner regulation,
it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally sanctioned
objective."226
The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless,
the disposition of this case will be the same. Generally, compared with other forms of speech, the
proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies
only to posters and tarpaulins that may affect the elections because they deliver opinions that shape
both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be
adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as election-
related and those that are not. This is especially true when citizens will want to use their resources to be
able to raise public issues that should be tackled by the candidates as what has happened in this case.
COMELEC’s discretion to limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily
divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and
present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is measured against
the clear and present danger rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious
and the degree of imminence extremely high.’"230 "Only when the challenged act has overcome the clear
and present danger rule will it pass constitutional muster, with the government having the burden of
overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the right
of non-candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does
not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v.
Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to determine the
public places that may be used for the procession ormeeting, but not the power to refuse the issuance of
a permit for such procession or meeting.235 This court explained that free speech and peaceful assembly
66
are "not absolute for it may be so regulated that it shall not beinjurious to the equal enjoyment of others
having equal rights, nor injurious to the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience of
the public."239
As early as 1907, United States v. Apurado240 recognized 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. . . ."241 It is with this backdrop that the
state is justified in imposing restrictions on incidental matters as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must
follow which include informing the licensing authority ahead of time as regards the date, public place,
and time of the assembly.242 This would afford the public official time to inform applicants if there would
be valid objections, provided that the clear and present danger test is the standard used for his decision
and the applicants are given the opportunity to be heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In
the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit
assemblies but simply regulates their time, place, and manner.245 In 2010, this court found in Integrated
Bar of the Philippines v. Atienza246 that respondent Mayor Atienza committed grave abuse of discretion
when he modified the rally permit by changing the venue from Mendiola Bridge to Plaza Miranda
without first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins
are content-neutral regulations as these "restrict the mannerby which speech is relayed but not the
content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech restraints
take the form of a content-neutral regulation, only a substantial governmental interest is required for its
validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A content-
neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial
governmental interest; [3] if the governmental interest is unrelated to the suppression of free
 67

expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin.
As discussed earlier, this is protected speech by petitioners who are non-candidates. On the second
requirement, not only must the governmental interest be important or substantial, it must also be
compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have held, for
example, that "the welfare of children and the State’s mandate to protect and care for them, as parens
patriae,254 constitute a substantial and compelling government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes gives
candidates and their supporters the incentive to post larger posters[,] [and] [t]his places candidates with
more money and/or with deep-pocket supporters at an undue advantage against candidates with more
humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen]
to freely express his choice and exercise his right of free speech."258 In any case, faced with both rights to
freedom of speech and equality, a prudent course would be to "try to resolve the tension in a way that
protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner. Thus,
this regulation does not apply in this case.
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal
significance."264 In fact, speech with political consequences, as in this case, should be encouraged and
not curtailed. As petitioners pointed out, the size limitation will not serve the objective of minimizing
election spending considering there is no limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the
restriction, but more so at the effects of such restriction, if implemented. The restriction must not be
narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative avenues for
the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions
with political consequences. These should be encouraged, more so when exercised to make more
meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given
the stature of petitioners and their message, there are indicators that this will cause a "chilling effect" on
robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the
medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the
materials on which words were written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
III.A
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

The possibility of abuse

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

Of course, candidates and political parties do solicit the help of private individuals for the endorsement
(7) Recommend to the Congress effective measures to minimize election spending, including limitation
of their electoral campaigns.
of places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This does not qualify as a
compelling and substantial government interest to justify regulation of the preferred right to freedom of On the one extreme, this can take illicit forms such as when endorsement materials in the form of
expression. tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’)
size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair
Election Act that provides for the same size limitation.263

However, as agreed by the parties during the oral arguments in this case, this is not the situation that
confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the part of
the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political candidate
should not be held hostage by the possibility of abuse by those seeking to be elected. It is true that there
can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect on the debate in the
elections as election paraphernalia would be too broad a remedy that can stifle genuine speech like in
this case. Instead, to address this evil, better and more effective enforcement will be the least restrictive
means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will spend their
own resources in order to lend support for the campaigns. This may be without agreement between the
speaker and the candidate or his or her political party. In lieu of donating funds to the campaign, they
will instead use their resources directly in a way that the candidate or political party would have doneso.
This may effectively skirt the constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an advocacy
of a social issue that it deeply believes. Through rhetorical devices, it communicates the desire of
Diocese that the positions of those who run for a political position on this social issue be determinative
of how the public will vote. It primarily advocates a stand on a social issue; only secondarily — even
almost incidentally — will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades, deflates
stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to have the high-
and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field, claimed that
satire had two defining features: "one is wit or humor founded on fantasy or a sense of the grotesque
and absurd, the other is an object of attack."271 Thus, satire frequently uses exaggeration, analogy, and
other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the
Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the candidates in
his list was to cause death intentionally. The tarpaulin caricatures political parties and parodies the
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team
Buhay" that further emphasizes the theme of its author: Reproductive health is an important marker for
the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain no
sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public to vote
for a person with a brief description of the attributes of the candidate. For example "Vote for [x], Sipag
at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
68
This court’s construction of the guarantee of freedom of expression has always been wary of censorship
or subsequent punishment that entails evaluation of the speaker’s viewpoint or the content of one’s
speech. This is especially true when the expression involved has political consequences. In this case, it
hopes to affect the type of deliberation that happens during elections. A becoming humility on the part
of any human institution no matter how endowed with the secular ability to decide legal controversies
with finality entails that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights. There are
occasional heretics of yesterday that have become our visionaries. Heterodoxies have always given us
pause. The unforgiving but insistent nuance that the majority surely and comfortably disregards provides
us with the checks upon reality that may soon evolve into creative solutions to grave social problems.
This is the utilitarian version. It could also be that it is just part of human necessity to evolve through
being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions which,
taken together with the guarantee of free expression, enhances each other’s value. Among these are the
provisions that acknowledge the idea of equality. In shaping doctrine construing these constitutional
values, this court needs to exercise extraordinary prudence and produce narrowly tailored guidance fit
to the facts as given so as not to unwittingly cause the undesired effect of diluting freedoms as exercised
in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that separate at the
point of giving priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but
regulation promoting political equality prevails over speech."273 This view allows the government leeway
to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within society’s ideological ladder.274 This view
acknowledges that there are dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of others. This is especially true in
a developing or emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been a
philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized
how institutionalized inequality exists as a background limitation, rendering freedoms exercised within
such limitation as merely "protect[ing] the already established machinery of discrimination."275 In his
view, any improvement "in the normal course of events" within an unequal society, without subversion,
only strengthens existing interests of those in power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a
whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be able to
determine what to do and what not to do, what to suffer and what not. But the subject of this autonomy
is never the contingent, private individual as that which he actually is or happens to be; it is rather the
individual as a human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law, between general and individual
interest, common and private welfare in an established society, but of creating the society in which man
is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words,
freedom is still to be created even for the freest of the existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the
people — "implies a necessary condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He submits that "[d]ifferent
opinions and ‘philosophies’ can no longer compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that "there is a ‘natural right’ of
resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have
proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he
refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent protections of
expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive, deliberative,
and informational interests,"282 costs or the price of expression, and background facts, when taken
together, produce bases for a system of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that
"public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of his
twotier model for freedom of expression, thus, warranting stringent protection.285 He defined political
speech as "both intended and received as a contribution to public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express views on matters of common concern will not be
drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to "remedy the
harms of speech with more speech."289 This view moves away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as the preferred strategy
for addressing them."290 However, in some cases, the idea of more speech may not be enough. Professor
Laurence Tribe observed the need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be
69
viewed in a formal rather than a substantive sense."292 Thus, more speech can only mean more speech
from the few who are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe
Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free of charge
print space or air time for campaign or other political purposes, except to the Commission on
Elections."294 This court explained that this provision only regulates the time and manner of advertising
in order to ensure media equality among candidates.295 This court grounded this measure on
constitutional provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or equality
inthe ability of citizens as speakers should not have a bearing in free speech doctrine. Under this view,
"members of the public are trusted to make their own individual evaluations of speech, and government
is forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas are best left to a

freely competitive ideological market."297 This is consistent with the libertarian suspicion on the use of
viewpoint as well as content to evaluate the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution protects
free speech per se, indifferent to the types, status, or associations of its speakers.299 Pursuant to this,
"government must leave speakers and listeners in the private order to their own devices in sorting out
the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech
includes "not only the right to express one’s views, but also other cognate rights relevant to the free
communication [of] ideas, not excluding the right to be informed on matters of public concern."301 She
adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters and
candidates, education, means of transportation, health, public discussion, private animosities, the
weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of men
and issues, through assembly, association and organizations, both by the candidate and the voter,
becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy
such that"courts, as a rule are wary to impose greater restrictions as to any attempt to curtail speeches
with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was designed to
"secure the widest possible dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by
the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best
alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if content-
neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of others’ and
thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the equality-based
paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives him of
his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum
of public information and runs counter to our ‘profound national commitment that debate on public
issues should be uninhibited, robust, and wide-open.’"308
70
In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of
those without funds in the first place . . . [and] even if one’s main concern isslowing the increase in
political costs, it may be more effective torely on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not necessarily to argue that
the sky’s the limit [because in] any campaign there are saturation levels and a point where spending no
longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and their
necessity to relate. On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the messages of those in
the minority. In a sense, social inequality does have its effect on the exercise and effect of the guarantee
of free speech. Those who have more will have better access to media that reaches a wider audience
than those who have less. Those who espouse the more popular ideas will have better reception than
the subversive and the dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments of
the value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates or
who do not speak as members of a political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not amount
toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members of a political party if they are not candidates,
only if what is regulated is declarative speech that, taken as a whole, has for its principal object the

endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be with respect to the time, place, and manner
of the rendition of the message. In no situation may the speech be prohibited or censored onthe basis of
its content. For this purpose, it will notmatter whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal message
in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section
3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case,
will not pass the test of reasonability. A fixed size for election posters or tarpaulins without any relation
to the distance from the intended average audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to
election propaganda by applying such regulations to private individuals.314 Certainly, any provision or
regulation can be circumvented. But we are not confronted with this possibility. Respondents agree that
the tarpaulin in question belongs to petitioners. Respondents have also agreed, during the oral
arguments, that petitioners were neither commissioned nor paid by any candidate or political party to
post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or constitutes
an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers should be posted is
"so broad that it encompasses even the citizen’s private property."317 Consequently, it violates Article III,
Section 1 of the Constitution which provides thatno person shall be deprived of his property without due
process of law. This court explained:
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.
71
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])318
This court ruled that the regulation in Adiong violates private property rights:
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 inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror 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.319 Respondents ordered petitioners, who are private citizens,
to remove the tarpaulin from their own property. The absurdity of the situation is in itself an indication
of the unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no expression
when there is no place where the expression may be made. COMELEC’s infringement upon petitioners’
property rights as in the present case also reaches out to infringement on their fundamental right to
speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must also
acknowledge a private individual’s right to exercise property rights. Otherwise, the due process clause
will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property. COMELEC
has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we find that the act
of respondents in seeking to restrain petitioners from posting the tarpaulin in their own private property
is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and
letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many forms.
Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or

preference, shall forever be allowed. Noreligious test shall be required for the exercise of civil or political
rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free
exercise and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make
such act immune from any secular regulation.324 The religious also have a secular existence. They exist
within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic
dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal world,
these acts range from belief, to expressions of these faiths, to religious ceremonies, and then to acts of a
secular character that may, from the point of view of others who do not share the same faith or may not
subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly,
our powers of adjudication cannot be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of respect
for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This court
found a balance between the assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies that
take religion specifically intoaccount not to promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As
Justice Brennan explained, the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere
in which voluntary religious exercise may flourish."330
72
This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it
has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an
excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine
of the Catholic church."332 That the position of the Catholic church appears to coincide with the message
of the tarpaulin regarding the RH Law does not, by itself, bring the expression within the ambit of
religious speech. On the contrary, the tarpaulin clearly refers to candidates classified under "Team
Patay" and "Team Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the
church doctrines relied upon by petitioners are not binding upon this court. The position of the Catholic
religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the
face of the tarpaulin precludes any doubtas to its nature as speech with political consequences and not
religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations
Commission333 cited by petitioners finds no application in the present case. The posting of the tarpaulin
does not fall within the category of matters that are beyond the jurisdiction of civil courts as enumerated
in the Austriacase such as "proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case.
However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among
candidates and their registered political parties. It is not to regulate or limit the speech of the electorate
as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running for public
office.Their message may be construed generalizations of very complex individuals and party-list
organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue —
and a complex piece of legislation at that — can easily be interpreted as anattempt to stereo type the
candidates and party-list organizations. Not all may agree to the way their thoughts were expressed, as
in fact there are other Catholic dioceses that chose not to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is
not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can
often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression
protected by our fundamental law. It is an expression designed to invite attention, cause debate, and
hopefully, persuade. It may be motivated by the interpretation of petitioners of their ecclesiastical duty,
but their parishioner’s actions will have very real secular consequences. Certainly, provocative messages
do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate that tends
to rouse the public to debate contemporary issues. This is not speechby candidates or political parties to
entice votes. It is a portion of the electorate telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a
fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is
hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013
and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
FACTS:
On February 2013, petitioners posted two (2) tarpaulins within the compound of San Sebastian Cathedral
of Bacolod. Each tarpaulin was approximately 6×10 in size. They were posted on the front walls of the
cathedral within public view.
The first tarpaulin contains the message “IBASURA RH Law” referring to the Reproductive Health Law of
2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present case. This tarpaulin
contains the heading “Conscience Vote” and lists candidates as either “(Anti-RH)/ Team Buhay” or “(Pro-
RH)/Team Patay”.
The electoral candidates were classified according to their vote on the adoption of the RH Law. Those
who voted for the passing of the law were classified by petitioners as comprising “Team Patay,” while
those who voted against it form “Team Buhay”:
73
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
*Party List Legarda, Loren
Party List Buhay Gabriela, Akbayan, Bayan Muna, Anak Pawis Party List Ang Pamilya
Respondent Atty. Mavil V. Majarucon, as Election Officer of Bacolod City, issued a Notice to Remove
Campaign Materials addressed to petitioner Most Rev. Bishop Vicente M. Navarra, otherwise,
COMELEC will be constrained to file an election offense against the petitioners.
ISSUE: Whether the act of the COMELEC infringes the Freedom of Religion and Freedom of Speech.
HELD:
On Freedom of Religion. As aptly argued by COMELEC, the tarpaulin, on its face, “does not convey any
religious doctrine of the Catholic church.” That the position of the Catholic church appears to coincide
with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified under
“Team Patay” and “Team Buhay” according to their respective votes on the RH Law.
On Freedom of Speech. Embedded in the tarpaulin, are opinions expressed by petitioners. It is a specie
of expression protected by our fundamental law. There are several theories and schools of thought that
strengthen the need to protect the basic right to freedom of expression.
First, this relates to the right of the people to participate in public affairs, including the right to criticize
government actions. Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Second, free speech should be encouraged under the concept of a market place of ideas.
Third, free speech involves self-expression that enhances human dignity.
Fourth, expression is a marker for group identity.
Fifth, the Bill of Rights, free speech included, is supposed to “protect individuals and minorities against
majoritarian abuses perpetrated through [the] framework [of democratic governance]. ”
Lastly, free speech must be protected under the safety valve theory. In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making passionate
dissent. Free speech must, thus, be protected as a peaceful means of achieving one’s goal, considering
the possibility that repression of nonviolent dissent may spill over to violent means just to drive a point.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions.”

EN BANC
G.R. No. 206020, April 14, 2015
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
DECISION
REYES, J.:
The right to participate in electoral processes is a basic and fundamental right in any democracy. It
includes not only the right to vote, but also the right to urge others to vote for a particular candidate.
The right to express one's preference for a candidate is likewise part of the fundamental right to free
speech. Thus, any governmental restriction on the right to convince others to vote for a candidate carries
with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court filed by 1-United
Transport Koalisyon (petitioner), a party-list organization, assailing Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 96152 of the Commission on Elections (COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act", was
passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in not more than ten (10) public places such as
plazas, markets, barangay centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided that the size of the poster areas shall not exceed twelve (12) by sixteen (16) feet
or its equivalent.
Independent candidates with no political parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or
its equivalent.
Candidates may post any lawful propaganda material in private places with the consent of the owner
thereof, and in public places or property which shall be allocated equitably and impartially among the
candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules
implementing R.A. No. 9006 in connection with the May 13, 2013 national and local elections and
subsequent elections. Section 7 thereof, which enumerates the prohibited forms of election propaganda,
pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or propaganda material outside of authorized
74
common poster areas, in public places, or in private properties without the consent of the owner
thereof.
(g) Public places referred to in the previous subsection (f) include any of the following:
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether
motorized or not;
6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks,
piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of the public
utility franchise and will make the owner and/or operator of the transportation service and/or terminal
liable for an election offense under Section 9 of Republic Act No. 9006 as implemented by Section 18 (n)
of these Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its president, Melencio F. Vargas, sought
clarification from the COMELEC as regards the application of Resolution No. 9615, particularly Section
7(g) items (5) and (6), in relation to Section 7(f), vis-a-vis privately owned public utility vehicles (PUVs)
and transport terminals. The petitioner explained that the prohibition stated in the aforementioned
provisions impedes the right to free speech of the private owners of PUVs and transport terminals. The
petitioner then requested the COMELEC to reconsider the implementation of the assailed provisions and
allow private owners of PUVs and transport terminals to post election campaign materials on their
vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied the
petitioner's request to reconsider the implementation of Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615. The COMELEC en banc, adopting the recommendation of
Commissioner Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is actually whether 1 -UTAK or any other
[PUV] owners in the same position do in fact possess a franchise and/or certificate of public
convenience and operate as a public utility. If it does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article IX-C of the Constitution, will be placed directly
under the supervision and regulation of the Commission for the duration of the election period so as to
ensure equality of opportunity, time, and space for all candidates in the placement of political
advertisements. Having placed their property for use by the general public and having secured a license
or permit to do so, 1-UTAK and other PUV owners, as well as transport terminal owners, cannot now
complain that their property is subject to regulation by the State. Securing a franchise or a certificate of
public convenience in their favor does not exempt them from the burdens imposed by the Constitution,
Republic Act No. 9006 x x x, and other related statutes. It must be stressed that the Constitution itself,
under Section 6, Article XII, commands that the use of property bears a social function and all economic
agents shall contribute to the common good; and there is no higher Common good than that as
espoused in R.A. No. 9006 - the equalization of opportunities for all candidates for political office during
elections - a policy which Res. No. 9615 merely implements.
As required in Adiong, and in compliance with the O'Brien standards, the prohibition furthers two
important and substantial governmental interests - equalizing opportunity, time, and space for all
candidates, and putting to a stop excessive campaign spending. The regulation bears a clear and
reasonable nexus with these Constitutionally- and statutorily-sanctioned objectives, and the
infringement of freedom is merely incidental and limited as to time. The Commission has not taken away
all avenues of expression available to PUV and transport terminal owners. They may express their
political preferences elsewhere.

The exact purpose for placing political advertisements on a PUV or in transport terminals is exactly
because it is public and can be seen by all; and although it is true that private vehicles ply the same
route as public vehicles, the exposure of a [PUV] servicing the general, riding public is much more
compared to private vehicles. Categorizing PUVs and transport terminals as 'public places' under
Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for limiting political
advertisements in print media, in radio, and in television therefore holds true for political
advertisements in PUVs and transport terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 violate the right to free speech of the owners of PUVs and transport terminals; that the prohibition
curtails their ideas of who should be voted by the public. The petitioner also claims that there is no
substantial public interest threatened by the posting of political advertisements on PUVs and transport
terminals to warrant the prohibition imposed by the COMELEC. Further, the petitioner posits that the
ownership of the PUVs per se, as well as the transport terminals, remains private and, hence, the owners
thereof could not be prohibited by the COMELEC from expressing their political opinion lest their
property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition imposed under Resolution
No. 9615, the petitioner claims that the curtailment of the right to free speech of the owners of PUVs
and transport terminals is much greater than is necessary to achieve the desired governmental
purpose, i.e., ensuring equality of opportunity to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and transport terminals are public
spaces that are subject to its regulation. It explains that under the Constitution, the COMELEC has the
power to enforce and administer all laws and regulations relative to the conduct of an election, including
the power to regulate the enjoyment or utilization of all franchises and permits for the operation of
transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold a captive audience - the
commuters, who have no choice but be subjected to the blare of political propaganda. Thus, the
COMELEC avers, it is within its constitutional authority to prevent privately-owned PUVs and transport
terminals from concurrently serving campaign materials to the captive audience that they transport.
The COMELEC further claims that Resolution No. 9615 is a valid content-neutral regulation and, thus,
does not impinge on the constitutional right to freedom of speech. It avers that the assailed regulation is
within the constitutional power of the COMELEC pursuant to Section 4, Article IX-C of the Constitution.
The COMELEC alleges that the regulation simply aims to ensure equal campaign opportunity, time, and
space for all candidates - an important and substantial governmental interest, which is totally unrelated
to the suppression of free expression; that any restriction on free speech is merely incidental and is no
greater than is essential to the furtherance of the said governmental interest.
The Issue
The petitioner presents the following issues for the Court's resolution:
75
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs]
AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH AND EXPRESSION FOR
FAILURE TO SATISFY THE O'BRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY TO INFORM THE
ELECTORATE IS NOT IMPAIRED BY POSTING POLITICAL� ADVERTISEMENTS ON� PUVs� AND
TRANSPORT TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT FROM THE FRANCHISE
OR OPERATION OF THE PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY
THE COMELEC.7
In sum, the issue presented for the Court's resolution is whether Section 7(g) items (5) and (6), in relation
to Section 7(f), of Resolution No. 9615, which prohibits the posting of any election campaign or
propaganda material, inter alia, in PUVs and public transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the Constitution and
the provisions of R.A. No. 9006, lays down the administrative rules relative to the COMELEC's exercise of
its supervisory and regulatory powers over all franchises and permits for the operation of transportation
and other public utilities, media of communication or information, and all grants, special privileges, or
concessions granted by the Government.
Like any other administrative regulations, Resolution No. 9615, or any part thereof, must not run counter
to the Constitution. It is basic that if a law or an administrative rule violates any norm of the Constitution,
that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must
conform; no act shall be valid if it conflicts with the Constitution.8 In this regard, an administrative
regulation, even if it purports to advance a legitimate governmental interest, may not be permitted to
run roughshod over the cherished rights of the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 are prior restraints on
speech.
Free speech may be identified with the liberty to discuss publicly and truthfully any matter of public
concern without prior restraint or censorship and subsequent punishment.9 Prior restraint refers to
official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by
the executive, legislative or judicial branch of the government.10 Any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its validity.11
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on the
fundamental right of the people to freedom of speech. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport terminals, to express their preference, through
the posting of election campaign material in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during

an election period in PUVs and transport terminals carries with it the penalty of revocation of the public
utility franchise and shall make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs
and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are
forcefully and effectively inhibited from expressing their preferences under the pain of indictment for an
election offense and the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a
preferred status in our hierarchy of rights. The rationale is that the preservation of other rights depends
on how well we protect our freedom of speech and of the press.12 It has been our constant holding that
this preferred freedom calls all the more for utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's prohibition against the posting of
decals and stickers on "mobile places." The Court ratiocinated that:
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 newspaper 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.15 (Emphases ours)
The assailed prohibition on posting election campaign materials is an invalid content-neutral
regulation repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615 may incidentally
restrict the right to free speech of owners of PUVs and transport terminals, the same is nevertheless
constitutionally permissible since it is a valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one
that merely controls the time, place or manner, and under well-defined standards,16 is constitutionally
permissible, even if it restricts the right to free speech, provided that the following requisites
concur: first, the government regulation is within the constitutional power of the Government; second, it
furthers an important or substantial governmental interest; third, the governmental interest is unrelated
to the suppression of free expression; and fourth, the incidental restriction on freedom of expression is
no greater than is essential to the furtherance of that interest.17
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they merely
control the place where election campaign materials may be posted. However, the prohibition is still
repugnant to the free speech clause as it fails to satisfy all of the requisites for a valid content-neutral
regulation.
It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an important
and substantial governmental interest, i.e., ensuring equal opportunity, time and space among
candidates aimed at the holding of free, orderly, honest, peaceful, and credible elections. It is further
conceded that the governmental interest in imposing the said prohibition is unrelated to the suppression
76
of free expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615, are not within the constitutionally delegated power of the COMELEC under Section 4, Article IX-C
of the Constitution. Also, there is absolutely no necessity to restrict the right to free speech of the
owners of PUVs and transport terminals.
The COMELEC may only regulate the franchise or permit to operate and not the ownership per se of
PUVs and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 is
not within the COMELEC's constitutionally delegated power of supervision or regulation. It is not
disputed that the COMELEC has the power to supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation utilities during an election period. Section 4,
Article IX-C of the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
Nevertheless, the constitutional grant of supervisory and regulatory powers to the COMELEC over
franchises and permits to operate, though seemingly unrestrained, has its limits. Notwithstanding the
ostensibly broad supervisory and regulatory powers granted to the COMELEC during an election period
under Section 4, Article IX-C of the Constitution, the Court had previously set out the limitations thereon.
In Adiong, the Court, while recognizing that the COMELEC has supervisory power vis-a-vis the conduct
and manner of elections under Section 4, Article IX-C of the Constitution, nevertheless held that such
supervisory power does not extend to the very freedom of an individual to express his preference of
candidates in an election by placing election campaign stickers on his vehicle.
In National Press Club v. COMELEC,18 while the Court upheld the constitutionality of a prohibition on the
selling or giving free of charge, except to the COMELEC, of advertising space and commercial time during
an election period, it was emphasized that the grant of supervisory and regulatory powers to the
COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring equal opportunity, time,
space, and the right to reply among candidates.
Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court, notwithstanding the grant of
supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the Constitution,
declared unconstitutional a regulation prohibiting the release of election surveys prior to the election
since it "actually suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and [television (TV)] commentators,
armchair theorists, and other opinion makers."20
In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory
powers to the COMELEC during an election period. As worded, Section 4, Article IX-C of the Constitution
only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization "of all
franchises or permits for the operation," inter alia, of transportation and other public utilities. The
COMELEC's constitutionally delegated powers of supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the
same.

There is a marked difference between the franchise or permit to operate transportation for the use of
the public and the ownership per se of the vehicles used for public transport. Thus, in Tatad v. Garcia,
Jr.,21the Court explained that:
What private respondent owns are the rail tracks, rolling stocks like the coaches, rail stations, terminals
and the power plant, not a public utility. While a franchise is needed to operate these facilities to serve
the public, they do not by themselves constitute a public utility. What constitutes a public utility is not
their ownership but their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility.
However, it does not require a franchise before one can own the facilities needed to operate a public
utility so long as it does not operate them to serve the public.
In law, there is a clear distinction between the "operation" of a public utility and the ownership of the
facilities and equipment used to serve the public.
The right to operate a public utility may exist independently and separately from the ownership of the
facilities thereof. One can own said facilities without operating them as a public utility, or conversely,
one may operate a public utility without owning the facilities used to serve the public. The devotion of
property to serve the public may be done by the owner or by the person in control thereof who may not
necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the ownership of the facilities used to serve
the public can be very well appreciated when we consider the transportation industry. Enfranchised
airline and shipping companies may lease their aircraft and vessels instead of owning them
themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege granted to certain persons to
engage in the business of transporting people or goods; it does not refer to the ownership of the
vehicleper se. Ownership is a relation in private law by virtue of which a thing pertaining to one person is
completely subjected to his will in everything not prohibited by public law or the concurrence with the
rights of another.23 Thus, the owner of a thing has the right to enjoy and dispose of a thing, without
other limitations than those established by law.24
One such limitation established by law, as regards PUVs, is the franchise or permit to operate. However,
a franchise or permit to operate a PUV is a limitation only on certain aspects of the ownership of the
vehicle pertinent to the franchise or permit granted, but not on the totality of the rights of the owner
over the vehicle. Otherwise stated, a restriction on the franchise or permit to operate transportation
utilities is necessarily a limitation on ownership, but a limitation on the rights of ownership over the PUV
is not necessarily a regulation on the franchise or permit to operate the same.
A franchise or permit to operate transportation utilities pertains to considerations affecting the
operation of the PUV as such, e.g., safety of the passengers, routes or zones of operation, maintenance
of the vehicle, of reasonable fares, rates, and other charges, or, in certain cases, nationality.25 Thus, a
government issuance, which purports to regulate a franchise or permit to operate PUVs, must pertain to
the considerations affecting its operation as such. Otherwise, it becomes a regulation or supervision not
on the franchise or permit to operate, but on the very ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign
materials on the vehicle, does not affect considerations pertinent to the operation of the PUV. Surely,
77
posting a decal expressing support for a certain candidate in an election will not in any manner affect the
operation of the PUV as such. Regulating the expression of ideas or opinion in a PUV, through the posting
of an election campaign material thereon, is not a regulation of the franchise or permit to operate, but a
regulation on the very ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of a PUV and that of the
very ownership thereof is better exemplified in the case of commercial advertisements posted on the
vehicle. A prohibition on the posting of commercial advertisements on a PUV is considered a regulation
on the ownership of the vehicle per se; the restriction on the enjoyment of the ownership of the vehicle
does not have any relation to its operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on windows of buses,
because it hinders police authorities from seeing whether the passengers inside are safe, is a regulation
on the franchise or permit to operate. It has a direct relation to the operation of the vehicle as a
PUV, i.e.,the safety of the passengers.
In the same manner, the COMELEC does not have the constitutional power to regulate public transport
terminals owned by private persons. The ownership of transport terminals, even if made available for
use by the public commuters, likewise remains private. Although owners of public transport terminals
may be required by local governments to obtain permits in order to operate, the permit only pertains to
circumstances affecting the operation of the transport terminal as such. The regulation of such permit to
operate should similarly be limited to circumstances affecting the operation of the transport terminal. A
regulation of public transport terminals based on extraneous circumstances, such as prohibiting the
posting of election campaign materials thereon, amounts to regulating the ownership of the transport
terminal and not merely the permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally
delegated power of the COMELEC to supervise or regulate the franchise or permit to operate of
transportation utilities. The posting of election campaign material on vehicles used for public transport
or on transport terminals is not only a form of political expression, but also an act of ownership - it has
nothing to do with the franchise or permit to operate the PUV or transport terminal.
The rulings in National Press Club and Osmena v. COMELEC find no application to this case.
The COMELEC pointed out that the issue presented in the instant case is akin to the Court's rulings
in National Press Club and Osme�a. It explained that in both cases, the Court sustained Section II(b) of
R.A. No. 6646 or the Electoral Reforms Law of 1997, which prohibits newspapers, radio broadcasting or
TV stations, and other mass media from selling or giving print space or airtime for campaign or other
political purposes, except to the COMELEC, during the election campaign. The COMELEC averred that if
the legislature can empower it to impose an advertising ban on mass media, it could likewise empower it
to impose a similar ban on PUVs and transport terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to the enjoyment and
utilization of the franchise or permit to operate of newspapers, radio broadcasting and TV stations, and
other mass media, which the COMELEC has the power to regulate pursuant to Section 4, Article IX-C of
the Constitution. The print space or airtime is an integral part of the franchise or permit to operate of
mass media utilities. Thus, the restriction under Section ll(b) of R.A. No. 6646 is within the confines of the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution.
On the other hand, the prohibition on the posting of election campaign materials under Section 7(g)

items (5) and (6) of Resolution No. 9615, as already explained, does not have any relation to the
franchise or permit of PUVs and transport terminals to operate as such and, hence, is beyond the power
of the COMELEC under Section 4, Article IX-C of the Constitution.
The restriction on free speech of owners of PUVs and transport terminals is not necessary to further
the stated governmental interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth requisite of a
valid content-neutral regulation, i.e., the incidental restriction on freedom of expression is no greater
than is essential to the furtherance of that interest. There is absolutely no necessity to restrict the right
of the owners of PUVs and transport terminals to free speech to further the governmental interest.
While ensuring equality of time, space, and opportunity to candidates is an important and substantial
governmental interest and is essential to the conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of R.A.
No. 9006, the prohibition on posting of election campaign materials on PUVs and transport terminals
was not provided for therein.
Second, there are more than sufficient provisions in our present election laws that would ensure equal
time, space, and opportunity to candidates in elections. Section 6 of R.A. No. 9006 mandates that "all
registered parties and bona fide candidates shall have equal access to media time and space" and
outlines the guidelines to be observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall
have equal access to media time and space. The following guidelines may be amplified on by the
COMELEC:
6.1� Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page
in tabloids thrice a week per newspaper, magazine or other publications, during the campaign period.
6.2� a. Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio advertisement
whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance for the review and verification of the
frequency, date, time and duration of advertisements broadcast for any candidate or political party.
6.3� All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the candidacy of any person for public office within five (5)
days after its signing. In every case, it shall be signed by the donor, the candidate concerned or by the
duly authorized representative of the political party.
6.4�� No franchise or permit to operate a radio or television station shall be granted or issued,
suspended or cancelled during the election period. In all instances, the COMELEC shall supervise the use
and employment of press, radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal opportunities under equal
78
circumstances to make known their qualifications and their stand on public issues within the limits set
forth in the Omnibus Election Code and Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not
allow the scheduling of any program or permit any sponsor to manifestly favor or oppose any candidate
or political party by unduly or repeatedly referring to or including said candidate and/or political party in
such program respecting, however, in all instances the right of said broadcast entities to air accounts of
significant news or news worthy events and views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news,
taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis.
They shall recognize the duty to air the other side and the duty to correct substantive errors promptly.
6.6�� Any mass media columnist, commentator, announcer, reporter, on-air correspondent or
personality who is a candidate for any elective public office or is a campaign volunteer for or employed
or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by
their employer, or shall take a leave of absence from his/her work as such during the campaign period:
Provided, That any media practitioner who is an official of a political party or a member of the campaign
staff of a candidate or political party shall not use his/her time or space to favor any candidate or
political party.
6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be
publicly exhibited in a theater, television station or any public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself
a candidate shall likewise be publicly exhibited in a theater or any public forum during the campaign
period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and independent candidates
to erect common poster areas and candidates to post lawful election campaign materials in private
places, with the consent of the owner thereof, and in public places or property, which are allocated
equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of registered political
parties and candidates for every voter; it affords candidates equal opportunity in their election campaign
by regulating the amount that should be spent for each voter.� Likewise, Section 1429 of R.A. No. 7166
requires all candidates and treasurers of registered political parties to submit a statement of all
contributions and expenditures in connection with the election. Section 14 is a post-audit measure that
aims to ensure that the candidates did not overspend in their election campaign, thereby enforcing the
grant of equal opportunity to candidates under Section 13.
A strict implementation of the foregoing provisions of law would suffice to achieve the governmental
interest of ensuring equal time, space, and opportunity for candidates in elections. There is thus no
necessity of still curtailing the right to free speech of the owners of PUVs and transport terminals by
prohibiting them from posting election campaign materials on their properties.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not justified under the captive-audience
doctrine.
The COMELEC further points out that PUVs and transport terminals hold a "captive audience" -
commuters who have no choice but be subjected to the blare of political propaganda. The COMELEC
further claims that while owners of privately owned PUVs and transport terminals have a right to express

their views to those who wish to listen, they have no right to force their message upon an audience
incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from
intrusive speech, the speech can be restricted.30 The "captive-audience" doctrine recognizes that a
listener has a right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided.31
A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes
selectively to shield the public from some kinds of speech on the ground that they are more offensive
than others. Such selective restrictions have been upheld only when the speaker intrudes on the privacy
of the home or the degree of captivity makes it either impossible or impractical for the unwilling viewer
or auditor to avoid exposure.32
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of the United States of
America (U.S. Supreme Court) struck down the order of New York Public Service Commission, which
prohibits public utility companies from including inserts in monthly bills discussing controversial issues of
public policy. The U.S. Supreme Court held that "[t]he prohibition cannot be justified as being necessary
to avoid forcing appellant's views on a captive audience, since customers may escape exposure to
objectionable material simply by throwing the bill insert into a wastebasket."34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court nullified a city ordinance, which
made it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films
containing nudity, when the screen is visible from a public street or place. The U.S. Supreme Court
opined that the degree of captivity is not so great as to make it impracticable for an unwilling viewer to
avoid exposure, thus:
The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to
deter drive-in theaters from showing movies containing any nudity, however innocent or even
educational. This discrimination cannot be justified as a means of preventing significant intrusions on
privacy. The ordinance seeks only to keep these films from being seen from public streets and places
where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not "so
obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." x x x Thus, we
conclude that the limited privacy interest of persons on the public streets cannot justify this censorship
of otherwise protected speech on the basis of its content.36 (Emphasis ours)
Thus, a government regulation based on the captive-audience doctrine may not be justified if the
supposed "captive audience" may avoid exposure to the otherwise intrusive speech. The prohibition
under Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified under the captive-audience
doctrine; the commuters are not forced or compelled to read the election campaign materials posted on
PUVs and transport terminals. Nor are they incapable of declining to receive the messages contained in
the posted election campaign materials since they may simply avert their eyes if they find the same
unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials on
PUVs and transport terminals, cites Lehman v. City of Shaker Heights,37 a case decided by the U.S.
Supreme Court. In Lehman, a policy of the city government, which prohibits political advertisements on
government-run buses, was upheld by the U.S. Supreme Court. The U.S. Supreme Court held that the
advertising space on the buses was not a public forum, pointing out that advertisement space on
government-run buses, "although incidental to the provision of public transportation, is a part of
79
commercial venture."38 In the same way that other commercial ventures need not accept every proffer
of advertising from the general public, the city's transit system has the discretion on the type of
advertising that may be displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for state office who
sought to avail himself of advertising space on government-run buses, "clearly has a right to express his
views to those who wish to listen, he has no right to force his message upon an audience incapable of
declining to receive it."39 Justice Douglas concluded: "the right of the commuters to be free from forced
intrusions on their privacy precludes the city from transforming its vehicles of public transportation into
forums for the dissemination of ideas upon this captive audience."40
The COMELEC's reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the city government; the city
government, as owner of the buses, had the right to decide which type of advertisements would be
placed on its buses. The U.S. Supreme Court gave primacy to the city government's exercise of its
managerial decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized by a requirement that
short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be
subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager politicians. In these
circumstances, the managerial decision to limit car card space to innocuous and less controversial
commercial and service-oriented advertising does not rise to the dignity of First Amendment
violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings,
military compounds, and other public facilities immediately would become Hyde Parks open to every
would be pamphleteer and politician. This the Constitution does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in
choosing the types of advertisements that would be placed on its properties. In stark contrast, Section
7(g) items (5) and (6) of Resolution No. 9615 curtail the choice of the owners of PUVs and transport
terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on
their buses. Considering that what were involved were facilities owned by the city government,
impartiality, or the appearance thereof, was a necessity. In the instant case, the ownership of PUVs and
transport terminals remains private; there exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on their properties.
Prohibiting owners of PUVs and transport terminals from posting election campaign materials violates
the equal protection clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but
also of the equal protection clause. One of the basic principles on which this government was founded is
that of the equality of right, which is embodied in Section 1, Article III of the 1987 Constitution.42 "Equal
protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate against others."43
"The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through whatever

agency or whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws to all citizens of the state. Equality of operation of statutes does not mean their
indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that
things, which are different in fact, be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different.45
In order that there can be valid classification so that a discriminatory governmental act may pass the
constitutional norm of equal protection, it is necessary that the four requisites of valid classification be
complied with, namely: (1) it must be based upon substantial distinctions; (2) it must be germane to the
purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to
all members of the class.46
It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
limited to existing conditions and applies equally to the members of the purported class. However, the
classification remains constitutionally impermissible since it is not based on substantial distinction and is
not germane to the purpose of the law.
A distinction exists between PUVs and transport terminals and private vehicles and other properties in
that the former, to be considered as such, needs to secure from the government either a franchise or a
permit to operate. Nevertheless, as pointed out earlier, the prohibition imposed under Section 7(g) items
(5) and (6) of Resolution No. 9615 regulates the ownership per se of the PUV and transport terminals;
the prohibition does not in any manner affect the franchise or permit to operate of the PUV and
transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs and transport
terminals and owners of private vehicles and other properties. As already explained, the ownership of
PUVs and transport terminals, though made available for use by the public, remains private. If owners of
private vehicles and other properties are allowed to express their political ideas and opinion by posting
election campaign materials on their properties, there is no cogent reason to deny the same preferred
right to owners of PUVs and transport terminals. In terms of ownership, the distinction between owners
of PUVs and transport terminals and owners of private vehicles and properties is merely superficial.
Superficial differences do not make for a valid classification.47
The fact that PUVs and transport terminals are made available for use by the public is likewise not
substantial justification to set them apart from private vehicles and other properties. Admittedly, any
election campaign material that would be posted on PUVs and transport terminals would be seen by
many people. However, election campaign materials posted on private vehicles and other places
frequented by the public, e.g., commercial establishments, would also be seen by many people. Thus,
there is no reason to single out owners of PUVs and transport terminals in the prohibition against
posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles and
other properties bears no relation to the stated purpose of Section 7(g) items (5) and (6) of Resolution
No. 9615, i.e., to provide equal time, space and opportunity to candidates in elections. To stress, PUVs
and transport terminals are private properties. Indeed, the nexus between the restriction on the
freedom of expression of owners of PUVs and transport terminals and the government's interest in
ensuring equal time, space, and opportunity for candidates in elections was not established by the
COMELEC.
80
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the free
speech clause; they are content-neutral regulations, which are not within the constitutional power of the
COMELEC issue and are not necessary to further the objective of ensuring equal time, space and
opportunity to the candidates. They are not only repugnant to the free speech clause, but are also
violative of the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport terminals and owners of private
vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one's political candidacy is clearly a
significant part of our freedom of expression. A restriction on this freedom without rhyme or reason is a
violation of the most valuable feature of the democratic way of life.48
WHEREFORE, in light of the foregoing disquisitions, the instant petition is hereby GRANTED. Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 issued by the Commission on
Elections are hereby declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of the
1987 Constitution.
SO ORDERED.
TOPIC: Election law, prior restraint of free speech, posting of campaign materials on PUV and public
terminals, captive-audience doctrine
DOCTRINE:
The right to participate in electoral processes is a basic and fundamental right in any democracy. It
includes not only the right to vote, but also the right to urge others to vote for a particular candidate.
The right to express one’s preference for a candidate is likewise part of the fundamental right to free
speech. Thus, any governmental restriction on the right to convince others to vote for a candidate
carries with it a heavy presumption of invalidity.
FACTS:
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules
implementing R.A. No. 9006 in connection with the May 13, 2013 national and local elections and
subsequent elections. Section 7 thereof, which enumerates the prohibited forms of election
propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. – During the campaign period, it is unlawful:
(f) To post, display or exhibit any election campaign or propaganda material outside of authorized
common poster areas, in public places, or in private properties without the consent of the owner
thereof.
(g) Public places referred to in the previous subsection (f) include any of the following:
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether
motorized or not;

6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks,
piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of the public
utility franchise and will make the owner and/or operator of the transportation service and/or terminal
liable for an election offense under Section 9 of Republic Act No. 9006 as implemented by Section 18 (n)
of these Rules.
Petitioner sought for clarification from COMELEC as regards the application of REsolution No. 9615
particularly Section 7(g) items (5) and (6), in relation to Section 7(f), vis-à-vis privately owned public
utility vehicles (PUVs) and transport terminals. The petitioner then requested the COMELEC to
reconsider the implementation of the assailed provisions and allow private owners of PUVs and
transport terminals to post election campaign materials on their vehicles and transport terminals.
The COMELEC en banc issued Minute Resolution No. 13-0214, which denied the petitioner’s request to
reconsider the implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615.
ISSUE: Whether or not Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
are constitutional.
HELD:
The Supreme Court held that the said provisions of Resolution No. 9615 are null and void for being
repugnant to Sections 1 and 4, Article III of the 1987 Constitution.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 are prior restraints on
speech
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on the
fundamental right of the people to freedom of speech. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport terminals, to express their preference, through
the posting of election campaign material in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during
an election period in PUVs and transport terminals carries with it the penalty of revocation of the public
utility franchise and shall make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs
and transport terminals. As a result of the prohibition, owners of PUVs and transport terminals are
forcefully and effectively inhibited from expressing their preferences under the pain of indictment for
an election offense and the revocation of their franchise or permit to operate.
The assailed prohibition on posting election campaign materials is an invalid content-neutral
regulation repugnant to the free speech clause.
81
A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one
that merely controls the time, place or manner, and under well-defined standards, is constitutionally
permissible, even if it restricts the right to free speech, provided that the following requisites concur:
1. The government regulation is within the constitutional power of the Government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression; and
4. The incidental restriction on freedom of expression is no greater than is essential to the furtherance of
that interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they
merely control the place where election campaign materials may be posted. However, the prohibition is
still repugnant to the free speech clause as it fails to satisfy all of the requisites for a valid content-
neutral regulation.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution.
Also, there is absolutely no necessity to restrict the right to free speech of the owners of PUVs and
transport terminals.
The COMELEC may only regulate the franchise or permit to operate and not the ownership per se of
PUVs and transport terminals.
In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory
powers to the COMELEC during an election period. As worded, Section 4, Article IX-C of the Constitution
only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization “of all
franchises or permits for the operation,” inter alia, of transportation and other public utilities. The
COMELEC’s constitutionally delegated powers of supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the
same.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally delegated
power of the COMELEC to supervise or regulate the franchise or permit to operate of transportation
utilities. The posting of election campaign material on vehicles used for public transport or on transport
terminals is not only a form of political expression, but also an act of ownership – it has nothing to do
with the franchise or permit to operate the PUV or transport terminal.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not justified under the captive-audience
doctrine.
The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from
intrusive speech, the speech can be restricted. The “captive-audience” doctrine recognizes that a
listener has a right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided.
A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes
selectively to shield the public from some kinds of speech on the ground that they are more offensive
than others. Such selective restrictions have been upheld only when the speaker intrudes on the privacy
 82

of the home or the degree of captivity makes it either impossible or impractical for the unwilling viewer
or auditor to avoid exposure.
Thus, a government regulation based on the captive-audience doctrine may not be justified if the
supposed “captive audience” may avoid exposure to the otherwise intrusive speech. The prohibition
under Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified under the captive-
audience doctrine; the commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals. Nor are they incapable of declining to receive the messages
contained in the posted election campaign materials since they may simply avert their eyes if they find
the same unbearably intrusive.
Lehman’s case not applicable
The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials on
PUVs and transport terminals, cites Lehman v. City of Shaker Heights, a case decided by the U.S.
Supreme Court. In Lehman, a policy of the city government, which prohibits political advertisements on
government-run buses, was upheld by the U.S. Supreme Court. The U.S. Supreme Court held that the
advertising space on the buses was not a public forum, pointing out that advertisement space on
government-run buses, “although incidental to the provision of public transportation, is a part of
commercial venture.” In the same way that other commercial ventures need not accept every proffer of
advertising from the general public, the city’s transit system has the discretion on the type of advertising
that may be displayed on its vehicles.
not germane to the purpose of the law. A distinction exists between PUVs and transport terminals and
private vehicles and other properties in that the former, to be considered as such, needs to secure
from the government either a franchise or a permit to operate. Nevertheless, as pointed out earlier,
the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the
ownership per se of the PUV and transport terminals; the prohibition does not in any manner affect
the franchise or permit to operate of the PUV and transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs and transport
terminals and owners of private vehicles and other properties. As already explained, the ownership of
PUVs and transport terminals, though made available for use by the public, remains private. If owners of
private vehicles and other properties are allowed to express their political ideas and opinion by
posting election campaign materials on their properties, there is no cogent reason to deny the same
preferred right to owners of PUVs and transport terminals. In terms of ownership, the distinction
between owners of PUVs and transport terminals and owners of private vehicles and properties is
merely superficial. Superficial differences do not make for a valid classification.
The fact that PUVs and transport terminals are made available for use by the public is likewise not
substantial justification to set them apart from private vehicles and other properties. Admittedly, any
election campaign material that would be posted on PUVs and transport terminals would be seen by
many people. However, election campaign materials posted on private vehicles and other places
frequented by the public, e.g.,commercial establishments, would also be seen by many people. Thus,
there is no reason to single out owners of PUVs and transport terminals in the prohibition against
posting of election campaign materials.

In Lehman, the political advertisement was intended for PUVs owned by the city government; the city
Summary
government, as owner of the buses, had the right to decide which type of advertisements would be
placed on its buses.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the free speech
clause; they are content-neutral regulations, which are not within the constitutional power of the
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in
COMELEC issue and are not necessary to further the objective of ensuring equal time, space and
choosing the types of advertisements that would be placed on its properties. In stark contrast, Section
opportunity to the candidates. They are not only repugnant to the free speech clause, but are also
7(g) items (5) and (6) of Resolution No. 9615 curtail the choice of the owners of PUVs and transport
violative of the equal protection clause, as there is no substantial distinction between owners of PUV s
terminals on the advertisements that may be posted on their properties.
and transport terminals and owners of private vehicles and other properties.

Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on
On a final note, it bears stressing that the freedom to advertise one’s political candidacy is clearly a
their buses. Considering that what were involved were facilities owned by the city government,
significant part of our freedom of expression. A restriction on this freedom without rhyme or reason is a
impartiality, or the appearance thereof, was a necessity. In the instant case, the ownership of PUVs and
violation of the most valuable feature of the democratic way of life.
transport terminals remains private; there exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on their properties.

Prohibiting owners of PUVs and transport terminals from posting election campaign materials violates
the equal protection clause.

Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but
also of the equal protection clause. One of the basic principles on which this government was founded is
that of the equality of right, which is embodied in Section 1, Article III of the 1987 Constitution.

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
limited to existing conditions and applies equally to the members of the purported class. However, the
classification remains constitutionally impermissible since it is not based on substantial distinction and is

Syllabus
RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES UNION et al.
appeal from the united states district court for the eastern district of pennsylvania
No. 96-511. Argued March 19, 1997-Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from
harmful material on the Internet, an international network of interconnected computers that enables
millions of people to communicate with one another in "cyberspace" and to access vast amounts of
information from around the world. Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997) criminalizes the
"knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age.
Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message
"that, in context, depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs." Affirmative defenses are provided for
those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited
communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms
of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of
plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d). After making extensive
findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary
injunction against enforcement of both challenged provisions. The court's judgment enjoins the
Government from enforcing §223(a)(1)(B)'s prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate and prosecute the
obscenity or child pornography activities prohibited therein. The injunction against enforcement of
§223(d) is unqualified because that section contains no separate reference to obscenity or child
pornography. The Government appealed to this Court under the Act's special review provisions, arguing
that the District Court erred in holding that the CDA violated both the First Amendment because it is
overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom
of speech" protected by the First Amendment. Pp. 17-40.
(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment
should be affirmed without reaching the Fifth Amendment issue. P. 17.
(b) A close look at the precedents relied on by the Government-Ginsberg v.New York, 390 U. S. 629; FCC
v. Pacifica Foundation, 438 U. S. 726; andRenton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather
than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders
upheld in those cases in many ways, including that it does not allow parents to consent to their children's
use of restricted materials; is not limited to commercial transactions; fails to provide any definition of
"indecent" and omits any requirement that "patently offensive" material lack socially redeeming value;
neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an
agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike
radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place,
and manner regulation because it is a content-based blanket restriction on speech. These precedents,
then, do not require the Court to uphold the CDA and are fully consistent with the application of the most
stringent review of its provisions. Pp. 17-21.
83
(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast
media-the history of extensive government regulation of broadcasting, see, e.g., Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its inception, see,e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace. Thus, these cases
provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the
Internet. Pp. 22-24.
(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes.
For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty
among speakers about how the two standards relate to each other and just what they mean. The
vagueness of such a content-based regulation, see, e.g., Gentile v. State Bar of Nev., 501 U. S. 1030,
coupled with its increased deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380 U. S.
479, raise special First Amendment concerns because of its obvious chilling effect on free speech.
Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its
"patently offensive" standard repeats the second part of the three-prong obscenity test set forth in Miller
v. California, 413 U. S. 15, 24. The second Miller prong reduces the inherent vagueness of its own
"patently offensive" term by requiring that the proscribed material be "specifically defined by the
applicable state law." In addition, the CDA applies only to "sexual conduct," whereas, the CDA prohibition
extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's
other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a
definition including three limitations is not vague, it does not follow that one of those limitations,
standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully
tailored to the congressional goal of protecting minors from potentially harmful materials. Pp. 24-28.
(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content
of speech. Although the Government has an interest in protecting children from potentially harmful
materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large
amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, supra, at
126. Its breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. See,e.g.,
Sable, 492 U. S., at 126. The Government has not proved otherwise. On the other hand, the District Court
found that currently available user-based software suggests that a reasonably effective method by
which parents can prevent their children from accessing material which the parents believe is
inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible
alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making
exceptions for messages with artistic or educational value, providing some tolerance for parental choice,
and regulating some portions of the Internet differently than others. Particularly in the light of the
absence of any detailed congressional findings, or even hearings addressing the CDA's special problems,
the Court is persuaded that the CDA is not narrowly tailored. Pp. 28-33.
(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are
rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative
channels" of communication is unpersuasive because the CDA regulates speech on the basis of its
content, so that a "time, place, and manner" analysis is inapplicable. See, e.g., Consolidated Edison Co. of
N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge"
and "specific person" requirements significantly restrict its permissible application to communications to
persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all
comers and that even the strongest reading of the "specific person" requirement would confer broad
powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally,

there is no textual support for the submission that material having scientific, educational, or other
redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 33-35.
(g) The §223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The
Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their
indecent communications in a way that would indicate their contents, thus permitting recipients to block
their reception with appropriate software, is illusory, given the requirement that such action be
"effective": The proposed screening software does not currently exist, but, even if it did, there would be
no way of knowing whether a potential recipient would actually block the encoded material. The
Government also failed to prove that §223(b)(5)'s verification defense would significantly reduce the
CDA's heavy burden on adult speech. Although such verification is actually being used by some
commercial providers of sexually explicit material, the District Court's findings indicate that it is not
economically feasible for most noncommercial speakers. Pp. 35-37.
(h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring
its severability clause, §608, and by construing nonseverable terms narrowly, is acceptable in only one
respect. Because obscene speech may be banned totally, see Miller, supra, at 18, and §223(a)'s
restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent"
material, the Court can sever the term "or indecent" from the statute, leaving the rest of §223(a)
standing. Pp. 37-39.
(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides
an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic
expansion of this new forum contradicts the factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently offensive" material is driving people away from the
Internet. P. 40.
929 F. Supp. 824, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and
Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment in part and dissenting in part,
in which Rehnquist, C. J., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the
United States, Wash-ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 96-511
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al., APPELLANTS v. AMERICAN CIVIL
LIBERTIES UNION et al.
84
on appeal from the united states district court for the eastern district of pennsylvania
[June 26, 1997]
Justice Stevens delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent"
and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and
importance of the congressional goal of protecting children from harmful materials, we agree with the
three-judge District Court that the statute abridges "the freedom of speech" protected by the First
Amendment.(1)
I
The District Court made extensive findings of fact, most of which were based on a detailed stipulation
prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996).(2) The findings describe the
character and the dimensions of the Internet, the availability of
sexually explicit material in that medium, and the problems confronting age verification for recipients of
Internet communications. Because those findings provide the underpinnings for the legal issues, we
begin with a summary of the undisputed facts.
The Internet
The Internet is an international network of interconnected computers. It is the outgrowth of what began
in 1969 as a military program called "ARPANET,"(3) which was designed to enable computers operated
by the military, defense contractors, and universities conducting defense-related research to
communicate with one another by redundant channels even if some portions of the network were
damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a
number of civilian networks that, eventually linking with each other, now enable tens of millions of
people to communicate with one another and to access vast amounts of information from around the
world. The Internet is "a unique and wholly new medium of worldwide human communication."(4)
The Internet has experienced "extraordinary growth."(5) The number of "host" computers-those that
store information and relay communications-increased from about 300 in 1981 to approximately
9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States.
About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to
200 million by 1999.
Individuals can obtain access to the Internet from many different sources, generally hosts themselves or
entities with a host affiliation. Most colleges and universities provide access for their students and
faculty; many corporations provide their employees with access through an office network; many
communities and local libraries provide free access; and an increasing number of storefront "computer
coffee shops" provide access for a small hourly fee. Several major national "online services" such as
America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive
proprietary networks as well as a link to the much larger resources of the Internet. These commercial
online services had almost 12 million individual subscribers at the time of trial.

Anyone with access to the Internet may take advantage of a wide variety of communication and
information retrieval methods. These methods are constantly evolving and difficult to categorize
precisely. But, as presently constituted, those most relevant to this case are electronic mail ("e-mail"),
automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups,"
"chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can
transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique
medium-known to its users as "cyberspace"-located in no particular geographical location but available
to anyone, anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic message-generally akin to a note or letter-to another
individual or to a group of addressees. The message is generally stored electronically, sometimes waiting
for the recipient to check her "mailbox" and sometimes making its receipt known through some type of
prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail
address, which then forwards the message to the group's other subscribers. Newsgroups also serve
groups of regular participants, but these postings may be read by others as well. There are thousands of
such groups, each serving to foster an exchange of information or opinion on a particular topic running
the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls.
About 100,000 new messages are posted every day. In most newsgroups, postings are automatically
purged at regular intervals. In addition to posting a message that can be read later, two or more
individuals wishing to communicate more immediately can enter a chat room to engage in real-time
dialogue-in other words, by typing messages to one another that appear almost immediately on the
others' computer screens. The District Court found that at any given time "tens of thousands of users are
engaging in conversations on a huge range of subjects."(6) It is "no exaggeration to conclude that the
content on the Internet is as diverse as human thought."(7)
The best known category of communication over the Internet is the World Wide Web, which allows
users to search for and retrieve information stored in remote computers, as well as, in some cases, to
communicate back to designated sites. In concrete terms, the Web consists of a vast number of
documents stored in different computers all over the world. Some of these documents are simply files
containing information. However, more elaborate documents, commonly known as Web "pages," are
also prevalent. Each has its own address-"rather like a telephone number."(8) Web pages frequently
contain information and sometimes allow the viewer to communicate with the page's (or "site's")
author. They generally also contain "links" to other documents created by that site's author or to other
(generally) related sites. Typically, the links are either blue or underlined text-sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address of a known page or
enter one or more keywords into a commercial "search engine" in an effort to locate sites on a subject of
interest. A particular Web page may contain the information sought by the "surfer," or, through its links,
it may be an avenue to other documents located anywhere on the Internet. Users generally explore a
given Web page, or move to another, by clicking a computer "mouse" on one of the page's icons or links.
Access to most Web pages is freely available, but some allow access only to those who have purchased
the right from a commercial provider. The Web is thus comparable, from the readers' viewpoint, to both
a vast library including millions of readily available and indexed publications and a sprawling mall
offering goods and services.
From the publishers' point of view, it constitutes a vast platform from which to address and hear from a
world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization
with a computer connected to the Internet can "publish" information. Publishers include government
agencies, educational institutions, commercial entities, advocacy groups, and individuals.(9) Publishers
may either make their material available to the entire pool of Internet users, or confine access to a
85
selected group, such as those willing to pay for the privilege. "No single organi zation controls any
membership in the Web, nor is there any centralized point from which individual Web sites or services
can be blocked from the Web."(10)
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the
modestly titillating to the hardest-core."(11) These files are created, named, and posted in the same
manner as material that is not sexually explicit, and may be accessed either deliberately or
unintentionally during the course of an imprecise search. "Once a provider posts its content on the
Internet, it cannot prevent that content from entering any community."(12) Thus, for example, "when
the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert
Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images
are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or
Beijing-wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its
Web site, written in street language so that the teenage receiver can understand them, are available not
just in Philadelphia, but also in Provo and Prague."(13)
Some of the communications over the Internet that originate in foreign countries are also sexually
explicit.(14)
Though such material is widely available, users seldom encounter such content accidentally. "A
document's title or a description of the document will usually appear before the document itself . . . and
in many cases the user will receive detailed information about a site's content before he or she need
take the step to access the document. Almost all sexually explicit images are preceded by warnings as to
the content."(15) For that reason, the "odds are slim" that a user would enter a sexually explicit site by
accident.(16) Unlike communications received by radio or television, "the receipt of information on the
Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A
child requires some sophistication and some ability to read to retrieve material and thereby to use the
Internet unattended."(17)
Systems have been developed to help parents control the material that may be available on a home
computer with Internet access. A system may either limit a computer's access to an approved list of
sources that have been identified as containing no adult material, it may block designated inappropriate
sites, or it may attempt to block messages containing identifiable objectionable features. "Although
parental control software currently can screen for certain suggestive words or for known sexually explicit
sites, it cannot now screen for sexually explicit images."(18) Nevertheless, the evidence indicates that "a
reasonably effective method by which parents can prevent their children from accessing sexually explicit
and other material which parents may believe is inappropriate for their children will soon be
available."(19)
Age Verification
The problem of age verification differs for different uses of the Internet. The District Court categorically
determined that there "is no effective way to determine the identity or the age of a user who is
accessing material through e-mail, mail exploders, newsgroups or chat rooms."(20) The Government
offered no evidence that there was a reliable way to screen recipients and participants in such fora for
age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat
rooms containing discussions of art, politics or other subjects that potentially elicit "indecent" or
 86

"patently offensive" contributions, it would not be possible to block their access to that material and "(1) in interstate or foreign communications-
"still allow them access to the remaining content, even if the overwhelming majority of that content was
not indecent."(21)
"(B) by means of a telecommunications device knowingly-

Technology exists by which an operator of a Web site may condition access on the verification of
"(i) makes, creates, or solicits, and
requested information such as a credit card number or an adult password. Credit card verification is only
feasible, however, either in connection with a commercial transaction in which the card is used, or by
payment to a verification agency. Using credit card possession as a surrogate for proof of age would "(ii) initiates the transmission of,
impose costs on non-commercial Web sites that would require many of them to shut down. For that
reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial "any comment, request, suggestion, proposal, image, or other communication which is obscene or
number of Internet content providers." Id., at 846 (finding 102). Moreover, the imposition of such a indecent, knowing that the recipient of the communication is under 18 years of age, regardless of
requirement "would completely bar adults who do not have a credit card and lack the resources to obtain whether the maker of such communication placed the call or initiated the communication; . . . . .
one from accessing any blocked material."(22)

"(2) knowingly permits any telecommunications facility under his control to be used for any activity
Commercial pornographic sites that charge their users for access have assigned them passwords as a prohibited by paragraph (1) with the intent that it be used for such activity,
method of age verification. The record does not contain any evidence concerning the reliability of these
technologies. Even if passwords are effective for commercial purveyors of indecent material, the District
Court found that an adult password requirement would impose significant burdens on noncommercial "shall be fined under Title 18, or imprisoned not more than two years, or both."
sites, both because they would discourage users from accessing their sites and because the cost of
creating and maintaining such screening systems would be "beyond their reach."(23) The second provision, §223(d), prohibits the knowing sending or displaying of patently offensive
messages in a manner that is available to a person under 18 years of age. It provides:
In sum, the District Court found:
"(d) Whoever-
"Even if credit card verification or adult password verification were implemented, the Government
presented no testimony as to how such systems could ensure that the user of the password or credit "(1) in interstate or foreign communications knowingly-
card is in fact over 18. The burdens imposed by credit card verification and adult password verification
systems make them effectively unavailable to a substantial number of Internet content
providers." Ibid. (finding 107). "(A) uses an interactive computer service to send to a specific person or persons under 18 years of age,
or

II
"(B) uses any interactive computer service to display in a manner available to a person under 18 years of
age,
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important
legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce
regulation and encourage "the rapid deployment of new telecommunications technologies." The major "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or
components of the statute have nothing to do with the Internet; they were designed to promote describes, in terms patently offensive as measured by contemporary community standards, sexual or
competition in the local telephone service market, the multichannel video market, and the market for excretory activities or organs, regardless of whether the user of such service placed the call or initiated
over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive the communication.
committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and
the House of Representatives. By contrast, Title V-known as the "Communications Decency Act of 1996"
(CDA)-contains provisions that were either added in executive committee after the hearings were Brief Fact Summary. Two provisions of the Communications Decency Act of 1996 (CDA) that criminalized
concluded or as amendments offered during floor debate on the legislation. An amendment offered in providing obscene materials to minors by on the internet were held unconstitutional by the Supreme
the Senate was the source of the two statutory provisions challenged in this case.(24) They are Court of the United States (Supreme Court).
informally described as the "indecent transmission" provision and the "patently offensive display"
provision.(25)
Synopsis of Rule of Law. Where a content-based blanket restriction on speech is overly broad by
prohibiting protected speech as well as unprotected speech, such restriction is unconstitutional.
The first, 47 U. S. C. A. §223(a) (Supp. 1997), prohibits the knowing transmission of obscene or indecent
messages to any recipient under 18 years of age. It provides in pertinent part:

"(a) Whoever-
 87

Facts:
At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent”�
and “patently offensive”� communications on the Internet. The District Court made extensive findings
of fact about the Internet and the CDA. It held that the statute abridges the “freedom of speech”�
protected by the First Amendment of the United States Constitution (Constitution).

Issue. Whether the two CDA statutory provisions at issue are constitutional?
Held.
No. Judgment of the District Court affirmed. Under the CDA, neither parents’ consent nor their
participation would avoid application of the statute. The CDA fails to provide any definition of
“indecent”� and omits any requirement that the “patently offensive material”� lack serious literary,
artistic, political or scientific value. Further, the CDA’s broad categorical prohibitions are not limited to
particular times and are not dependent on any evaluation by an agency familiar with the unique
characteristics of the Internet. CDA applies to the entire universe of the cyberspace. Thus, the CDA is a
content-based blanket restriction on speech, as such, cannot be properly analyzed as a form of time,
place and manner restriction. The CDA lacks the precision that the First Amendment of the Constitution
requires when a statute regulates the content of speech. In order to deny minors access to potentially
harmful speech, the statute suppresses a large amount of speech that adults have a constitutional right
to receive. The CDA places an unacceptable burden on protected speech, thus, the statute is invalid as
unconstitutional.
Concurrence. The constitutionality of the CDA as a zoning law hinges on the extent to which it
substantially interferes with the First Amendment rights of adults. Because the rights of adults are
infringed only by the “display”� provision and by the “indecency transmission”� provision, the judge
would invalidate the CDA only to that extent.
Discussion. This case brings the First Amendment of the Constitution into the Internet age while
prohibiting speech regulations that are overbroad despite their seemingly benevolent goals.

EN BANC
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A STATEMENT BY THE
FACULTY OF THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent law professors1 in
response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them to show
cause why they should not be disciplined as members of the Bar for violation of specific provisions of the
Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an
administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules of Court,
contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the
said October 19, 2010 Show Cause Resolution. Neither is this a disciplinary proceeding grounded on an
allegedly irregularly concluded finding of indirect contempt as intimated by Associate Justice Conchita
Carpio Morales (Justice Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court finds that
with the exception of one respondent whose compliance was adequate and another who manifested he
was not a member of the Philippine Bar, the submitted explanations, being mere denials and/or
tangential to the issues at hand, are decidedly unsatisfactory. The proffered defenses even more
urgently behoove this Court to call the attention of respondent law professors, who are members of the
Bar, to the relationship of their duties as such under the Code of Professional Responsibility to their civil
rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for
law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the Court to be misled by any artifice.
88
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of paper,
the language or the argument of opposing counsel, or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by repeal or amendment, or
assert as a fact that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to
defeat the ends of justice.
CANON 11 — A lawyer shall observe and maintain the respect due to the courts and to judicial officers
and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.
CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from any impropriety which
tends to influence, or gives the appearance of influencing the court.
Established jurisprudence will undeniably support our view that when lawyers speak their minds, they
must ever be mindful of their sworn oath to observe ethical standards of their profession, and in
particular, avoid foul and abusive language to condemn the Supreme Court, or any court for that matter,
for a decision it has rendered, especially during the pendency of a motion for such decision’s
reconsideration. The accusation of plagiarism against a member of this Court is not the real issue here
but rather this plagiarism issue has been used to deflect everyone’s attention from the actual concern of
this Court to determine by respondents’ explanations whether or not respondent members of the Bar
have crossed the line of decency and acceptable professional conduct and speech and violated the Rules
of Court through improper intervention or interference as third parties to a pending case. Preliminarily, it
should be stressed that it was respondents themselves who called upon the Supreme Court to act on
their Statement,2 which they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for
the Court’s proper disposition. Considering the defenses of freedom of speech and academic freedom
invoked by the respondents, it is worth discussing here that the legal reasoning used in the past by this
Court to rule that freedom of expression is not a defense in administrative cases against lawyers for
using intemperate speech in open court or in court submissions can similarly be applied to respondents’
invocation of academic freedom. Indeed, it is precisely because respondents are not merely lawyers but
lawyers who teach law and mould the minds of young aspiring attorneys that respondents’ own non-
observance of the Code of Professional Responsibility, even if purportedly motivated by the purest of
intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it is apropos to revisit the factual
antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo) in Vinuya,
et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010, the counsel3 for
Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising
solely the following grounds:

I. Our own constitutional and jurisprudential histories reject this Honorable Courts’ (sic)
assertion that the Executive’s foreign policy prerogatives are virtually unlimited; precisely,
under the relevant jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian standards, including those
provided for in the relevant international conventions of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the broader, if fundamental,
responsibility of states to protect the human rights of its citizens – especially where the rights
asserted are subject of erga omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and Romel
Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in G.R. No. 162230,
where they posited for the first time their charge of plagiarism as one of the grounds for reconsideration
of the Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURT’S JUDGMENT OF APRIL 28,
2010 TO PLAGIARIZE AT LEAST THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW
JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005
AND AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW
– AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE JUDGMENT’S ARGUMENTS FOR
DISMISSING THE INSTANT PETITION WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG
CASE FOR THE PETITION’S CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive
plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia to suit
the arguments of the assailed Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision were
namely: (1) Evan J. Criddle and Evan Fox-Decent’s article "A Fiduciary Theory of Jus Cogens;"9 (2)
Christian J. Tams’ book Enforcing Erga Omnes Obligations in International Law;10 and (3) Mark Ellis’
article "Breaking the Silence: On Rape as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010,
journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized parts of
ruling on comfort women," on the Newsbreak website.12 The same article appeared on the GMA News
TV website also on July 19, 2010.13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted," appeared in the Manila
Standard Today.14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one of the authors
purportedly not properly acknowledged in the Vinuya decision, confirmed that his work, co-authored
with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof. Criddle’s response to the
post by Julian Ku regarding the news report15 on the alleged plagiarism in the international law blog,
Opinio Juris. Prof. Criddle responded to Ku’s blog entry in this wise:
The newspaper’s16 [plagiarism] claims are based on a motion for reconsideration filed yesterday with the
Philippine Supreme Court yesterday. The motion is available here:
89
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four sentences and citations that are
identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor
Fox-Decent and I were unaware of the petitioners’ [plagiarism] allegations until after the motion was
filed today.
Speaking for myself, the most troubling aspect of the court’s jus cogens discussion is that it implies that
the prohibitions against crimes against humanity, sexual slavery, and torture are not jus cogens norms.
Our article emphatically asserts the opposite. The Supreme Court’s decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to the
charge of plagiarism contained in the Supplemental Motion for Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr. Mark
Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of the
integrity of my work as an academic and as an advocate of human rights and humanitarian law, to take
exception to the possible unauthorized use of my law review article on rape as an international crime in
your esteemed Court’s Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No.
162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the Philippine chapter of
the Southeast Asia Media Legal Defence Initiative (SEAMLDI),19 an affiliate of the London-based Media
Legal Defence Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-28, of
the said Judgment of your esteemed Court. I am also concerned that your esteemed Court may have
misread the arguments I made in the article and employed them for cross purposes. This would be ironic
since the article was written precisely to argue for the appropriate legal remedy for victims of war
crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of International Law
in 2006 has been made available to your esteemed Court. I trust that your esteemed Court will take the
time to carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the issues raised by this letter.
With respect, (Sgd.)
Dr. Mark Ellis20
 90

In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on Ethics appearing beside each name. For convenient reference, the text of the UP Law faculty Statement is
and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the Internal Rules of the reproduced here:
Supreme Court. In an En Banc Resolution also dated July 27, 2010, the Court referred the July 22, 2010
letter of Justice Del Castillo to the Ethics Committee. The matter was subsequently docketed as A.M. No.
RESTORING INTEGRITY
10-7-17-SC.

A STATEMENT BY THE FACULTY OF

On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the letter of
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
Justice Del Castillo.21
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by the
Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered
Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreak’s website22 and on
abuse during a time of war. After they courageously came out with their very personal stories of abuse
Atty. Roque’s blog.23 A report regarding the statement also appeared on various on-line news sites, such
and suffering as "comfort women", waited for almost two decades for any meaningful relief from their
as the GMA News TV24 and the Sun Star25 sites, on the same date. The statement was likewise posted at
own government as well as from the government of Japan, got their hopes up for a semblance of judicial
the University of the Philippines College of Law’s bulletin board allegedly on August 10, 201026 and at
recourse in the case of Vinuya v. Executive Secretary, G.R. No. 162230 (28 April 2010), they only had
said college’s website.27
these hopes crushed by a singularly reprehensible act of dishonesty and misrepresentation by the
Highest Court of the land.
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the Philippines
College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato C. Corona (Chief
It is within this frame that the Faculty of the University of the Philippines College of Law views the charge
Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
that an Associate Justice of the Supreme Court committed plagiarism and misrepresentation in Vinuya v.
Executive Secretary. The plagiarism and misrepresentation are not only affronts to the individual
The Honorable scholars whose work have been appropriated without correct attribution, but also a serious threat to the
Supreme Court of the Republic of the Philippines integrity and credibility of the Philippine Judicial System.

In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of another person’s work
Through: Hon. Renato C. Corona
as one’s own. In the field of writing, it is cheating at best, and stealing at worst. It constitutes a taking of
Chief Justice
someone else’s ideas and expressions, including all the effort and creativity that went into committing
such ideas and expressions into writing, and then making it appear that such ideas and expressions were
Subject: Statement of faculty
originally created by the taker. It is dishonesty, pure and simple. A judicial system that allows plagiarism
from the UP College of Law
in any form is one that allows dishonesty. Since all judicial decisions form part of the law of the land, to
on the Plagiarism in the case of
allow plagiarism in the Supreme Court is to allow the production of laws by dishonest means. Evidently,
Vinuya v Executive Secretary
this is a complete perversion and falsification of the ends of justice.

Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-]eight
(38)28members of the faculty of the UP College of Law. We hope that its points could be considered by
the Supreme Court en banc.
A comparison of the Vinuya decision and the original source material shows that the ponente merely
copied select portions of other legal writers’ works and interspersed them into the decision as if they
were his own, original work. Under the circumstances, however, because the Decision has been
promulgated by the Court, the Decision now becomes the Court’s and no longer just the ponente’s. Thus
the Court also bears the responsibility for the Decision. In the absence of any mention of the original
writers’ names and the publications from which they came, the thing speaks for itself.

Respectfully,
So far there have been unsatisfactory responses from the ponente of this case and the spokesman of the
Court.
(Sgd.)
Marvic M.V.F. Leonen
It is argued, for example, that the inclusion of the footnotes from the original articles is a reference to
Dean and Professor of Law
the ‘primary’ sources relied upon. This cursory explanation is not acceptable, because the original
authors’ writings and the effort they put into finding and summarizing those primary sources are
The copy of the Statement attached to the above-quoted letter did not contain the actual signatures of precisely the subject of plagiarism. The inclusion of the footnotes together with portions of their writings
the alleged signatories but only stated the names of 37 UP Law professors with the notation (SGD.) in fact aggravates, instead of mitigates, the plagiarism since it provides additional evidence of a
 91

deliberate intention to appropriate the original authors’ work of organizing and analyzing those primary Final Arbiter of all controversies: a position that requires competence and integrity completely above any
sources. and all reproach, in accordance with the exacting demands of judicial and professional ethics.

It is also argued that the Members of the Court cannot be expected to be familiar with all legal and
scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all the more
demands correct and careful attribution and citation of the material relied upon. It is a matter of
diligence and competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan Criddle and Evan
Fox-Descent, that the High Court actually misrepresents the conclusions of their work entitled "A
Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this article they argue that
the classification of the crimes of rape, torture, and sexual slavery as crimes against humanity have
attained the status of jus cogens, making it obligatory upon the State to seek remedies on behalf of its
aggrieved citizens. Yet, the Vinuya decision uses parts of the same article to arrive at the contrary
conclusion. This exacerbates the intellectual dishonesty of copying works without attribution
by transforming it into an act of intellectual fraud by copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with State liability and
responsibility for personal injury and damage suffered in a time of war, and the role of the injured
parties’ home States in the pursuit of remedies against such injury or damage. National courts rarely
have such opportunities to make an international impact. That the petitioners were Filipino "comfort
women" who suffered from horrific abuse during the Second World War made it incumbent on the Court
of last resort to afford them every solicitude. But instead of acting with urgency on this case, the Court
delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking
justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized
materials, the Court decided this case based on polluted sources. By so doing, the Supreme Court added
insult to injury by failing to actually exercise its "power to urge and exhort the Executive Department to
take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and
nonchalance, belies a more alarming lack of concern for even the most basic values of decency and
respect. The reputation of the Philippine Supreme Court and the standing of the Philippine legal
profession before other Judiciaries and legal systems are truly at stake.
With these considerations, and bearing in mind the solemn duties and trust reposed upon them as
teachers in the profession of Law, it is the opinion of the Faculty of the University of the Philippine
College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable,
unethical and in breach of the high standards of moral conduct and judicial and professional
competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme
Court and undermines the foundations of the Philippine judicial system by allowing implicitly
the decision of cases and the establishment of legal precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case does violence to the
primordial function of the Supreme Court as the ultimate dispenser of justice to all those who
have been left without legal or equitable recourse, such as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the
honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of
Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions
that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the manner by which it conducts
research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of
similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only
the highest quality of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010.

The High Court cannot accommodate less than absolute honesty in its decisions and cannot accept
excuses for failure to attain the highest standards of conduct imposed upon all members of the Bench (SGD.) MARVIC M.V.F. LEONEN
and Bar because these undermine the very foundation of its authority and power in a democratic Dean and Professor of Law
society. Given the Court’s recent history and the controversy that surrounded it, it cannot allow the
charges of such clear and obvious plagiarism to pass without sanction as this would only further erode
faith and confidence in the judicial system. And in light of the significance of this decision to the quest for (SGD.) FROILAN M. BACUNGAN (SGD.) PACIFICO A. AGABIN
justice not only of Filipino women, but of women elsewhere in the world who have suffered the horrors Dean (1978-1983) Dean (1989-1995)
of sexual abuse and exploitation in times of war, the Court cannot coldly deny relief and justice to the
petitioners on the basis of pilfered and misinterpreted texts.
(SGD.) MERLIN M. MAGALLONA (SGD.) SALVADOR T. CARLOTA
Dean (1995-1999) Dean (2005-2008) and Professor of Law
The Court cannot regain its credibility and maintain its moral authority without ensuring that its own
conduct, whether collectively or through its Members, is beyond reproach. This necessarily includes
ensuring that not only the content, but also the processes of preparing and writing its own decisions, are
credible and beyond question. The Vinuya Decision must be conscientiously reviewed and not casually REGULAR FACULTY
cast aside, if not for the purpose of sanction, then at least for the purpose of reflection and guidance. It
is an absolutely essential step toward the establishment of a higher standard of professional care and
practical scholarship in the Bench and Bar, which are critical to improving the system of administration of (SGD.) CARMELO V. SISON (SGD.) JAY L. BATONGBACAL
justice in the Philippines. It is also a very crucial step in ensuring the position of the Supreme Court as the

Professor
(SGD.) PATRICIA R.P. SALVADOR DAWAY
Associate Dean and Associate Professor
(SGD.) DANTE B. GATMAYTAN
Associate Professor
(SGD.) THEODORE O. TE
Assistant Professor
(SGD.) FLORIN T. HILBAY
Assistant Professor
LECTURERS
(SGD.) JOSE GERARDO A. ALAMPAY
(SGD.) ARTHUR P. AUTEA
(SGD.) ROSA MARIA J. BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L. JARDELEZA
(SGD.) ANTONIO G.M. LA VIÑA
(SGD.) CARINA C. LAFORTEZA
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments on the
alleged plagiarism issue to the Court.30 We quote Prof. Tams’ letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
Assistant Professor
(SGD.) EVELYN (LEO) D. BATTAD
Assistant Professor
(SGD.) GWEN G. DE VERA
Assistant Professor
(SGD.) SOLOMON F. LUMBA
Assistant Professor
(SGD.) ROMMEL J. CASIS
Assistant Professor
(SGD.) JOSE C. LAURETA
(SGD.) DINA D. LUCENARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) RODOLFO NOEL S. QUIMBO
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(SGD.) SUSAN D. VILLANUEVA29
(Underscoring supplied.)
92
My name is Christian J. Tams, and I am a professor of international law at the University of Glasgow. I am
writing to you in relation to the use of one of my publications in the above-mentioned judgment of your
Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Court’s Judgment, in the section
addressing the concept of obligations erga omnes. As the table annexed to this letter shows, the relevant
sentences were taken almost word by word from the introductory chapter of my book Enforcing
Obligations Erga Omnes in International Law (Cambridge University Press 2005). I note that there is a
generic reference to my work in footnote 69 of the Judgment, but as this is in relation to a citation from
another author (Bruno Simma) rather than with respect to the substantive passages reproduced in the
Judgment, I do not think it can be considered an appropriate form of referencing.
I am particularly concerned that my work should have been used to support the Judgment’s cautious
approach to the erga omnes concept. In fact, a most cursory reading shows that my book’s central thesis
is precisely the opposite: namely that the erga omnes concept has been widely accepted and has a firm
place in contemporary international law. Hence the introductory chapter notes that "[t]he present study
attempts to demystify aspects of the ‘very mysterious’ concept and thereby to facilitate its
implementation" (p. 5). In the same vein, the concluding section notes that "the preceding chapters
show that the concept is now a part of the reality of international law, established in the jurisprudence
of courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should have been cited to
support – as it seemingly has – the opposite approach. More generally, I am concerned at the way in
which your Honourable Court’s Judgment has drawn on scholarly work without properly acknowledging
it.
On both aspects, I would appreciate a prompt response from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits during the August 26, 2010
hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that Exhibit "J" (a copy
of the Restoring Integrity Statement) was not signed but merely reflected the names of certain faculty
members with the letters (SGD.) beside the names. Thus, the Ethics Committee directed Atty. Roque to
present the signed copy of the said Statement within three days from the August 26 hearing.32
It was upon compliance with this directive that the Ethics Committee was given a copy of the signed UP
Law Faculty Statement that showed on the signature pages the names of the full roster of the UP Law
Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the Statement was that
only 37 of the 81 faculty members appeared to have signed the same. However, the 37 actual signatories
to the Statement did not include former Supreme Court Associate Justice Vicente V. Mendoza (Justice
Mendoza) as represented in the previous copies of the Statement submitted by Dean Leonen and Atty.
Roque. It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement although his

name was not included among the signatories in the previous copies submitted to the Court. Thus, the
total number of ostensible signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement, having been
formally submitted by Dean Leonen on August 11, 2010, was already under consideration by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following observations regarding
the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators’ opinion on the allegations of
plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a
truth. In particular, they expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited
the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the
authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered
abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as
a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the
resolution of the said case, its dismissal on the basis of "polluted sources," the Court’s alleged
indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of decency and respect.34 x x x.
(Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic
society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism
leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must
"insist on being permitted to proceed to the disposition of its business in an orderly manner, free from
outside interference obstructive of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments
except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty,
integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite
resentment against a resolution that would not reverse the said decision. This runs contrary to their
obligation as law professors and officers of the Court to be the first to uphold the dignity and authority
of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to
promote distrust in the administration of justice.35 x x x. (Citations omitted; emphases and underscoring
supplied.)
93
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M.
Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan,
Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F.
Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch,
Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G.
Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario to show cause, within ten (10) days
from receipt of the copy of the Resolution, why they should not be disciplined as members of the Bar for
violation of Canons 1,36 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why he should not be
disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting through his
letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the investigation before
the Ethics Committee, for the consideration of the Court en banc, a dummy which is not a true and
faithful reproduction of the UP Law Faculty Statement.38
In the same Resolution, the present controversy was docketed as a regular administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October 19, 2010 Show Cause
Resolution
On November 19, 2010, within the extension for filing granted by the Court, respondents filed the
following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents, excluding
Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation of Canons 1,
11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-
Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to
the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the
charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common compliance
which was signed by their respective counsels (the Common Compliance). In the "Preface" of said
Common Compliance, respondents stressed that "[they] issued the Restoring Integrity Statement in the
discharge of the ‘solemn duties and trust reposed upon them as teachers in the profession of law,’ and
as members of the Bar to speak out on a matter of public concern and one that is of vital interest to

them."39 They likewise alleged that "they acted with the purest of intentions" and pointed out that "none
of them was involved either as party or counsel"40 in the Vinuya case. Further, respondents "note with
concern" that the Show Cause Resolution’s findings and conclusions were "a prejudgment – that
respondents indeed are in contempt, have breached their obligations as law professors and officers of
the Court, and have violated ‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe due respect to legal processes42 and the
courts43 and of tending to influence, or giving the appearance of influencing the Court44 in the
issuance of their Statement, respondents assert that their intention was not to malign the
Court but rather to defend its integrity and credibility and to ensure continued confidence in
the legal system. Their noble motive was purportedly evidenced by the portion of their
Statement "focusing on constructive action."45 Respondents’ call in the Statement for the
Court "to provide clear and concise guidance to the Bench and Bar to ensure only the highest
quality of legal research and writing in adjudication," was reputedly "in keeping with
strictures enjoining lawyers to ‘participate in the development of the legal system by initiating
or supporting efforts in law reform and in the improvement of the administration of justice’"
(under Canon 4 of the Code of Professional Responsibility) and to "promote respect for the
law and legal processes" (under Canon 1, id.).46 Furthermore, as academics, they allegedly
have a "special interest and duty to vigilantly guard against plagiarism and misrepresentation
because these unwelcome occurrences have a profound impact in the academe, especially in
our law schools."47
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity
Statement as an ‘institutional attack’ x x x on the basis of its first and ninth
paragraphs."48 They further clarified that at the time the Statement was allegedly drafted and
agreed upon, it appeared to them the Court "was not going to take any action on the grave
and startling allegations of plagiarism and misrepresentation."49 According to respondents,
the bases for their belief were (i) the news article published on July 21, 2010 in the Philippine
Daily Inquirer wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter;50 and (ii) the July 22,
2010 letter of Justice Del Castillo which they claimed "did nothing but to downplay the gravity
of the plagiarism and misrepresentation charges."51 Respondents claimed that it was their
perception of the Court’s indifference to the dangers posed by the plagiarism allegations
against Justice Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents’ position that Justice Del Castillo committed plagiarism
and should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of
respondents’ charge of plagiarism against Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of Appeals52 and foreign materials and jurisprudence,
respondents essentially argue that their position regarding the plagiarism charge against
Justice Del Castillo is the correct view and that they are therefore justified in issuing their
Restoring Integrity Statement. Attachments to the Common Compliance included, among
94
others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,53 sent to Chief
Justice Corona through Justice Sereno, alleging that the Vinuya decision likewise lifted
without proper attribution the text from a legal article by Mariana Salazar Albornoz that
appeared in the Anuario Mexicano De Derecho Internacional and from an International Court
of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled "Sexual
Orientation, Gender Identity and International Human Rights Law" by Michael O’Flaherty and
John Fisher, in support of their charge that Justice Del Castillo also lifted passages from said
article without proper attribution, but this time, in his ponencia in Ang Ladlad LGBT Party v.
Commission on Elections.54
(c) Respondents’ belief that they are being "singled out" by the Court when others have
likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate public issues."55 They identified various
published reports and opinions, in agreement with and in opposition to the stance of
respondents, on the issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July
24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star
on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director General Adrian
Cristobal, Jr. published in the Business Mirror on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban published in the Philippine
Daily Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinan’s call for the resignation of
Justice Del Castillo published in the Daily Tribune and the Manila Standard Today
on July 31, 2010;62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the Ateneo
de Manila University School of Law on the calls for the resignation of Justice Del
Castillo published in The Manila Bulletin, the Philippine Star and the Business
Mirror on August 11, 2010;63
(ix) News report on expressions of support for Justice Del Castillo from a former
dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional
Association, the Judges Association of Bulacan and the Integrated Bar of the
 95

Philippines – Bulacan Chapter published in the Philippine Star on August 16, On the matter of the reliefs to which respondents believe they are entitled, the Common Compliance
2010;64 and stated, thus:

(x) Letter of the Dean of the Liceo de Cagayan University College of Law published WHEREFORE:
in the Philippine Daily Inquirer on August 10, 2010.65
A. Respondents, as citizens of a democracy, professors of law, members of the Bar and
In view of the foregoing, respondents alleged that this Court has singled them out for officers of the Court, respectfully pray that:
sanctions and the charge in the Show Cause Resolution dated October 19, 2010 that they may
have violated specific canons of the Code of Professional Responsibility is unfair and without
1. the foregoing be noted; and
basis.

2. the Court reconsider and reverse its adverse findings in the Show Cause
(d) Freedom of expression
Resolution, including its conclusions that respondents have: [a] breached their
"obligation as law professors and officers of the Court to be the first to uphold the
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their dignity and authority of this Court, … and not to promote distrust in the
position that in issuing their Statement, "they should be seen as not only to be performing administration of justice;" and [b] committed "violations of Canons 10, 11, and 13
their duties as members of the Bar, officers of the court, and teachers of law, but also as and Rules 1.02 and 11.05 of the Code of Professional Responsibility."
citizens of a democracy who are constitutionally protected in the exercise of free speech."66 In
support of this contention, they cited United States v. Bustos,67In re: Atty. Vicente Raul
B. In the event the Honorable Court declines to grant the foregoing prayer, respondents
Almacen, 68 and In the Matter of Petition for Declaratory Relief Re: Constitutionality of
respectfully pray, in the alternative, and in assertion of their due process rights, that before
Republic Act 4880, Gonzales v. Commission on Elections.69
final judgment be rendered:

(e) Academic freedom

1. the Show Cause Resolution be set for hearing;

In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was also
2. respondents be given a fair and full opportunity to refute and/or address the
issued in the exercise of their academic freedom as teachers in an institution of higher learning. They
findings and conclusions of fact in the Show Cause Resolution (including especially
relied on Section 5 of the University of the Philippines Charter of 2008 which provided that "[t]he
the finding and conclusion of a lack of malicious intent), and in that connection,
national university has the right and responsibility to exercise academic freedom." They likewise
that appropriate procedures and schedules for hearing be adopted and defined
adverted to Garcia v. The Faculty Admission Committee, Loyola School of Theology70 which they claimed
that will allow them the full and fair opportunity to require the production of and
recognized the extent and breadth of such freedom as to encourage a free and healthy discussion and
to present testimonial, documentary, and object evidence bearing on the
communication of a faculty member’s field of study without fear of reprisal. It is respondents’ view that
plagiarism and misrepresentation issues in Vinuya v. Executive Secretary (G.R. No.
had they remained silent on the plagiarism issue in the Vinuya decision they would have "compromised
162230, April 28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against
[their] integrity and credibility as teachers; [their silence] would have created a culture and generation of
Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
students, professionals, even lawyers, who would lack the competence and discipline for research and
pleading; or, worse, [that] their silence would have communicated to the public that plagiarism and
misrepresentation are inconsequential matters and that intellectual integrity has no bearing or relevance 3. respondents be given fair and full access to the transcripts, records, drafts,
to one’s conduct."71 reports and submissions in or relating to, and accorded the opportunity to cross-
examine the witnesses who were or could have been called in In The Matter of the
Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M.
In closing, respondents’ Common Compliance exhorted this Court to consider the following portion of
No. 10-7-17-SC).74
the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez,72 to wit:

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

Respect for the courts can better be obtained by following a calm and impartial course from the bench
than by an attempt to compel respect for the judiciary by chastising a lawyer for a too vigorous or
injudicious exposition of his side of a case. The Philippines needs lawyers of independent thought and
courageous bearing, jealous of the interests of their clients and unafraid of any court, high or low, and
the courts will do well tolerantly to overlook occasional intemperate language soon to be regretted by
the lawyer which affects in no way the outcome of a case.73
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof. Juan-
Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein she adopted
the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the findings
and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity Statement can

be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court, such may be punished
only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the best
intentions to protect the Supreme Court by asking one member to resign."76 For her part, Prof. Juan-
Bautista intimated that her deep disappointment and sadness for the plight of the Malaya Lolas were
what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77 which in her view
highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning such
that schools have the freedom to determine for themselves who may teach, what may be taught, how
lessons shall be taught and who may be admitted to study and that courts have no authority to interfere
in the schools’ exercise of discretion in these matters in the absence of grave abuse of discretion. She
claims the Court has encroached on the academic freedom of the University of the Philippines and other
universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents’ constitutional
right to freedom of expression that can only be curtailed when there is grave and imminent danger to
public safety, public morale, public health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by registered
mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the circumstances
surrounding his signing of the Statement. He alleged that the Vinuya decision was a topic of conversation
among the UP Law faculty early in the first semester (of academic year 2010-11) because it reportedly
contained citations not properly attributed to the sources; that he was shown a copy of the Statement
by a clerk of the Office of the Dean on his way to his class; and that, agreeing in principle with the main
theme advanced by the Statement, he signed the same in utmost good faith.79
In response to the directive from this Court to explain why he should not be disciplined as a member of
the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a lawyer has the
right, like all citizens in a democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto;80 (b) In re: Atty. Vicente Raul
Almacen;81 and (c) a discussion appearing in American Jurisprudence (AmJur) 2d.82 He claims that he
"never had any intention to unduly influence, nor entertained any illusion that he could or should
influence, [the Court] in its disposition of the Vinuya case"83 and that "attacking the integrity of [the
Court] was the farthest thing on respondent’s mind when he signed the Statement."84Unlike his
colleagues, who wish to impress upon this Court the purported homogeneity of the views on what
constitutes plagiarism, Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the view
that willful and deliberate intent to commit plagiarism is an essential element of the same. Others, like
respondent, were of the opinion that plagiarism is committed regardless of the intent of the perpetrator,
the way it has always been viewed in the academe. This uncertainty made the issue a fair topic for
academic discussion in the College. Now, this Honorable Court has ruled that plagiarism presupposes
deliberate intent to steal another’s work and to pass it off as one’s own.85 (Emphases supplied.)
96
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been remiss
in correctly assessing the effects of such language [in the Statement] and could have been more
careful."86 He ends his discussion with a respectful submission that with his explanation, he has faithfully
complied with the Show Cause Resolution and that the Court will rule that he had not in any manner
violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10 in relation to his
submission of a "dummy" of the UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law Faculty
Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP College of Law
in its signing pages, and the actual signatures of the thirty-seven (37) faculty members subject
of the Show Cause Resolution. A copy was filed with the Honorable Court by Roque and
Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but which reflects
as signatories the names of thirty-seven (37) members of the faculty with the notation
"(SGD.)". A copy of Restoring Integrity II was publicly and physically posted in the UP College
of Law on 10 August 2010. Another copy of Restoring Integrity II was also officially received by
the Honorable Court from the Dean of the UP College of Law on 11 August 2010, almost three
weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which presently
serves as the official file copy of the Dean’s Office in the UP College of Law that may be signed
by other faculty members who still wish to. It bears the actual signatures of the thirty- seven
original signatories to Restoring Integrity I above their printed names and the notation
"(SGD.") and, in addition, the actual signatures of eight (8) other members of the faculty
above their handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant since
what Dean Leonen has been directed to explain are the discrepancies in the signature pages of these two
documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean Leonen
alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty on
a draft statement, Dean Leonen instructed his staff to print the draft and circulate it among
the faculty members so that those who wished to may sign. For this purpose, the staff
encoded the law faculty roster to serve as the printed draft’s signing pages. Thus did the first
printed draft of the Restoring Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was
unaware that a Motion for Reconsideration of the Honorable Court’s Decision in Vinuya vs.
Executive Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the
 97

Honorable Court was in the process of convening its Committee on Ethics and Ethical
Standards in A.M. No. 10-7-17-SC.
2.4. Dean Leonen’s staff then circulated Restoring Integrity I among the members of the
faculty. Some faculty members visited the Dean’s Office to sign the document or had it
brought to their classrooms in the College of Law, or to their offices or residences. Still other
faculty members who, for one reason or another, were unable to sign Restoring Integrity I at
that time, nevertheless conveyed to Dean Leonen their assurances that they would sign as
soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I had been
circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a style
and manner appropriate for posting in the College of Law. Following his own established
practice in relation to significant public issuances, he directed them to reformat the signing
pages so that only the names of those who signed the first printed draft would appear,
together with the corresponding "(SGD.)" note following each name. Restoring Integrity II
thus came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of non-
signatories in the final draft of significant public issuances, is meant not so much for aesthetic
considerations as to secure the integrity of such documents."89 He likewise claimed that "[p]osting
statements with blanks would be an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendoza’s name as among the signatories in Restoring Integrity
II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake to a
miscommunication involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted signing
pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the
"(SGD.)" signatories. As Justice Mendoza was not among those who had physically signed
Restoring Integrity I when it was previously circulated, Dean Leonen called the attention of his
staff to the inclusion of the Justice’s name among the "(SGD.)" signatories in Restoring
Integrity II.
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the
circumstances surrounding their effort to secure Justice Mendoza’s signature. It would turn out that this
was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the dean’s staff talked to Justice Mendoza on the
phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement
as he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say
that he authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if
he could authorize the dean to sign it for him as he was about to leave for the United States.
The dean’s staff informed him that they would, at any rate, still try to bring the Restoring
Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the
Restoring Integrity Statement before he left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to
the College to teach on 24 September 2010, a day after his arrival from the U.S. This time,
Justice Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the call he received from
Justice Mendoza in late September. Indeed, Justice Mendoza confirmed that by the time the hard copy
of the Restoring Integrity Statement was brought to him shortly after his arrival from the U.S., he
declined to sign it because it had already become controversial. At that time, he predicted that the Court
would take some form of action against the faculty. By then, and under those circumstances, he wanted
to show due deference to the Honorable Court, being a former Associate Justice and not wishing to
unduly aggravate the situation by signing the Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovit’s name in the signature page of Restoring Integrity II when
he was one of the signatories of Restoring Integrity I and the erroneous description in Dean Leonen’s
August 10, 2010 letter that the version of the Statement submitted to the Court was signed by 38
members of the UP Law Faculty, it was explained in the Compliance that:

2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated to him.
Mendoza over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had
However, his name was inadvertently left out by Dean Leonen’s staff in the reformatting of the signing
authorized the dean to sign the Restoring Integrity Statement for him as he agreed
pages in Restoring Integrity II. The dean assumed that his name was still included in the reformatted
fundamentally with its contents. Also according to her, Justice Mendoza was unable at that
signing pages, and so mentioned in his cover note to Chief Justice Corona that 38 members of the law
time to sign the Restoring Integrity Statement himself as he was leaving for the United States
faculty signed (the original 37 plus Justice Mendoza.)96
the following week. It would later turn out that this account was not entirely
accurate.91(Underscoring and italics supplied.)
Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement that
was not a true and faithful reproduction of the same. He emphasized that the main body of the
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so placed
Statement was unchanged in all its three versions and only the signature pages were not the same. This
full reliance on her account"92 as "[t]here were indeed other faculty members who had also authorized
purportedly is merely "reflective of [the Statement’s] essential nature as a ‘live’ public manifesto meant
the Dean to indicate that they were signatories, even though they were at that time unable to affix their
to continuously draw adherents to its message, its signatory portion is necessarily evolving and dynamic
signatures physically to the document."93
x x x many other printings of [the Statement] may be made in the future, each one reflecting the same
text but with more and more signatories."97 Adverting to criminal law by analogy, Dean Leonen claims
that "this is not an instance where it has been made to appear in a document that a person has
participated in an act when the latter did not in fact so participate"98 for he "did not misrepresent which

members of the faculty of the UP College of Law had agreed with the Restoring Integrity Statement
proper and/or had expressed their desire to be signatories thereto."99
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or Rules 10.01
and 10.02 for he did not mislead nor misrepresent to the Court the contents of the Statement or the
identities of the UP Law faculty members who agreed with, or expressed their desire to be signatories to,
the Statement. He also asserts that he did not commit any violation of Rule 10.03 as he "coursed [the
Statement] through the appropriate channels by transmitting the same to Honorable Chief Justice
Corona for the latter’s information and proper disposition with the hope that its points would be duly
considered by the Honorable Court en banc."100 Citing Rudecon Management Corporation v.
Camacho,101 Dean Leonen posits that the required quantum of proof has not been met in this case and
that no dubious character or motivation for the act complained of existed to warrant an administrative
sanction for violation of the standard of honesty provided for by the Code of Professional
Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common
Compliance, including the prayers for a hearing and for access to the records, evidence and witnesses
allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving
Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of the
Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first taught as
a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same capacity in 2010.
He further alleges that "[h]e subscribes to the principle, espoused by this Court and the Supreme Court
of the United States, that ‘…[d]ebate on public issues should be uninhibited, robust and wide open and
that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials."103 In signing the Statement, he believes that "the right to speak means the right to
speak effectively."104 Citing the dissenting opinions in Manila Public School Teachers Association v.
Laguio, Jr.,105 Prof. Lynch argued that "[f]or speech to be effective, it must be forceful enough to make
the intended recipients listen"106 and "[t]he quality of education would deteriorate in an atmosphere of
repression, when the very teachers who are supposed to provide an example of courage and self-
assertiveness to their pupils can speak only in timorous whispers."107 Relying on the doctrine in In the
Matter of Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,108Prof. Lynch believed that the Statement did not pose any danger, clear or
present, of any substantive evil so as to remove it from the protective mantle of the Bill of Rights (i.e.,
referring to the constitutional guarantee on free speech).109 He also stated that he "has read the
Compliance of the other respondents to the Show Cause Resolution" and that "he signed the Restoring
Integrity Statement for the same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the material
issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
98
2.) Does the Show Cause Resolution violate respondents’ academic freedom as law
professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be
disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the
Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be
disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation
to such hearing, are respondents entitled to require the production or presentation of
evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
162230) and the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have
access to the records and transcripts of, and the witnesses and evidence presented, or could
have been presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of expression.
It is respondents’ collective claim that the Court, with the issuance of the Show Cause Resolution, has
interfered with respondents’ constitutionally mandated right to free speech and expression. It appears
that the underlying assumption behind respondents’ assertion is the misconception that this Court is
denying them the right to criticize the Court’s decisions and actions, and that this Court seeks to
"silence" respondent law professors’ dissenting view on what they characterize as a "legitimate public
issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was neither
the fact that respondents had criticized a decision of the Court nor that they had charged one of its
members of plagiarism that motivated the said Resolution. It was the manner of the criticism and the
contumacious language by which respondents, who are not parties nor counsels in the Vinuya case, have
expressed their opinion in favor of the petitioners in the said pending case for the "proper disposition"
and consideration of the Court that gave rise to said Resolution. The Show Cause Resolution
painstakingly enumerated the statements that the Court considered excessive and uncalled for under
the circumstances surrounding the issuance, publication, and later submission to this Court of the UP
Law faculty’s Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del Castillo was
guilty of plagiarism but rather their expression of that belief as "not only as an established fact, but a
truth"111 when it was "[o]f public knowledge [that there was] an ongoing investigation precisely to
determine the truth of such allegations."112 It was also pointed out in the Show Cause Resolution that
there was a pending motion for reconsideration of the Vinuya decision.113 The Show Cause Resolution
made no objections to the portions of the Restoring Integrity Statement that respondents claimed to be
"constructive" but only asked respondents to explain those portions of the said Statement that by no
stretch of the imagination could be considered as fair or constructive, to wit:

Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered
abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as
a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the
resolution of the said case, its dismissal on the basis of "polluted sources," the Court’s alleged
indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack of
concern of the members of the Court for even the most basic values of decency and respect.114 x x x.
(Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents’ freedom of expression when it
stated that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic
society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism
leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the judiciary. The court must
"insist on being permitted to proceed to the disposition of its business in an orderly manner, free from
outside interference obstructive of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less than objective comments
except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty,
integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the flames and invite
resentment against a resolution that would not reverse the said decision. This runs contrary to their
obligation as law professors and officers of the Court to be the first to uphold the dignity and authority
of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to
promote distrust in the administration of justice.115 x x x. (Citations omitted; emphases and underscoring
supplied.)
Indeed, in a long line of cases, including those cited in respondents’ submissions, this Court has held that
the right to criticize the courts and judicial officers must be balanced against the equally primordial
concern that the independence of the Judiciary be protected from due influence or interference. In cases
where the critics are not only citizens but members of the Bar, jurisprudence has repeatedly affirmed the
authority of this Court to discipline lawyers whose statements regarding the courts and fellow lawyers,
whether judicial or extrajudicial, have exceeded the limits of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty. Vicente J. Francisco both
guilty of contempt and liable administratively for the following paragraph in his second motion for
reconsideration:
We should like frankly and respectfully to make it of record that the resolution of this court, denying our
motion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of the
99
petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality of
Tiaong, Tayabas. We wish to exhaust all the means within our power in order that this error may be
corrected by the very court which has committed it, because we should not want that some citizen,
particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce,
as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, and
because it is our utmost desire to safeguard the prestige of this honorable court and of each and every
member thereof in the eyes of the public. But, at the same time we wish to state sincerely that
erroneous decisions like these, which the affected party and his thousands of voters will necessarily
consider unjust, increase the proselytes of 'sakdalism' and make the public lose confidence in the
administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor necessary and further held
that:
[I]n order to call the attention of the court in a special way to the essential points relied upon in his
argument and to emphasize the force thereof, the many reasons stated in his said motion were sufficient
and the phrases in question were superfluous. In order to appeal to reason and justice, it is highly
improper and amiss to make trouble and resort to threats, as Attorney Vicente J. Francisco has done,
because both means are annoying and good practice can never sanction them by reason of their natural
tendency to disturb and hinder the free exercise of a serene and impartial judgment, particularly in
judicial matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a more or
less veiled threat to the court because it is insinuated therein, after the author shows the course which
the voters of Tiaong should follow in case he fails in his attempt, that they will resort to the press for the
purpose of denouncing, what he claims to be a judicial outrage of which his client has been the victim;
and because he states in a threatening manner with the intention of predisposing the mind of the reader
against the court, thus creating an atmosphere of prejudices against it in order to make it odious in the
public eye, that decisions of the nature of that referred to in his motion promote distrust in the
administration of justice and increase the proselytes of sakdalism, a movement with seditious and
revolutionary tendencies the activities of which, as is of public knowledge, occurred in this country a few
days ago. This cannot mean otherwise than contempt of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente J. Francisco, because he presumes that the court is so
devoid of the sense of justice that, if he did not resort to intimidation, it would maintain its error
notwithstanding the fact that it may be proven, with good reasons, that it has acted erroneously.
Significantly, Salcedo is the decision from which respondents culled their quote from the minority view
of Justice Malcolm. Moreover, Salcedo concerned statements made in a pleading filed by a counsel in a
case, unlike the respondents here, who are neither parties nor counsels in the Vinuya case and
therefore, do not have any standing at all to interfere in the Vinuya case. Instead of supporting
respondents’ theory, Salcedo is authority for the following principle:
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is in
duty bound to uphold its dignity and authority and to defend its integrity, not only because it has
conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he
now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also because in so doing, he
neither creates nor promotes distrust in the administration of justice, and prevents anybody from
harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining
the foundation upon which rests that bulwark called judicial power to which those who are aggrieved
turn for protection and relief.119 (Emphases supplied.)

Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his pleading, by
accusing the Court of "erroneous ruling." Here, the respondents’ Statement goes way beyond merely
ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty. Vicente
Raul Almacen,120 cited in the Common Compliance and the Vasquez Compliance, was an instance where
the Court indefinitely suspended a member of the Bar for filing and releasing to the press a "Petition to
Surrender Lawyer’s Certificate of Title" in protest of what he claimed was a great injustice to his client
committed by the Supreme Court. In the decision, the petition was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our pleas for
justice, who ignore without reasons their own applicable decisions and commit culpable violations of the
Constitution with impunity." His client's he continues, who was deeply aggrieved by this Court's "unjust
judgment," has become "one of the sacrificial victims before the altar of hypocrisy." In the same breath
that he alludes to the classic symbol of justice, he ridicules the members of this Court, saying "that
justice as administered by the present members of the Supreme Court is not only blind, but also deaf
and dumb." He then vows to argue the cause of his client "in the people's forum," so that "the people
may know of the silent injustices committed by this Court," and that "whatever mistakes, wrongs and
injustices that were committed must never be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorney
and counsellor-at-law IN TRUST with reservation that at any time in the future and in the event we
regain our faith and confidence, we may retrieve our title to assume the practice of the noblest
profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle that a
lawyer, just like any citizen, has the right to criticize and comment upon actuations of public officers,
including judicial authority. However, the real doctrine in Almacen is that such criticism of the courts,
whether done in court or outside of it, must conform to standards of fairness and propriety. This case
engaged in an even more extensive discussion of the legal authorities sustaining this view.1awphi1 To
quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the
walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse
and slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct that subjects a lawyer to disciplinary
action.
For, membership in the Bar imposes upon a person obligations and duties which are not mere flux and
ferment. His investiture into the legal profession places upon his shoulders no burden more basic, more
exacting and more imperative than that of respectful behavior toward the courts. He vows solemnly to
conduct himself "with all good fidelity x x x to the courts;" and the Rules of Court constantly remind him
"to observe and maintain the respect due to courts of justice and judicial officers." The first canon of
legal ethics enjoins him "to maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its supreme importance."
As Mr. Justice Field puts it:
100
"x x x the obligation which attorneys impliedly assume, if they do not by express declaration take upon
themselves, when they are admitted to the Bar, is not merely to be obedient to the Constitution and
laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation
is not discharged by merely observing the rules of courteous demeanor in open court, but includes
abstaining out of court from all insulting language and offensive conduct toward judges personally for
their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the orderly
administration of justice. Hence, in the assertion of their clients' rights, lawyers — even those gifted with
superior intellect — are enjoined to rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may
tax his patience and temper to submit to rulings which he regards as incorrect, but discipline and self-
respect are as necessary to the orderly administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he is the tribunal appointed to decide, and
the bar should at all times be the foremost in rendering respectful submission." (In Re Scouten, 40 Atl.
481)
In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at one
time and a mere citizen at another. Thus, statements made by an attorney in private conversations or
communications or in the course of a political campaign, if couched in insulting language as to bring into
scorn and disrepute the administration of justice, may subject the attorney to disciplinary
action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance, observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting the same, has
always been considered as misbehavior, tending to obstruct the administration of justice, and subjects
such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly
in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has a
profound personal interest in the enforcement of the fundamental right to have justice administered by
the courts, under the protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the decision
of the court in a pending case made in good faith may be tolerated; because if well founded it may
enlighten the court and contribute to the correction of an error if committed; but if it is not well taken
and obviously erroneous, it should, in no way, influence the court in reversing or modifying its decision. x
x x.
xxxx
To hurl the false charge that this Court has been for the last years committing deliberately "so many
blunders and injustices," that is to say, that it has been deciding in favor of one party knowing that the
law and justice is on the part of the adverse party and not on the one in whose favor the decision was
rendered, in many cases decided during the last years, would tend necessarily to undermine the
confidence of the people in the honesty and integrity of the members of this Court, and consequently to

lower or degrade the administration of justice by this Court. The Supreme Court of the Philippines is,
under the Constitution, the last bulwark to which the Filipino people may repair to obtain relief for their
grievances or protection of their rights when these are trampled upon, and if the people lose their
confidence in the honesty and integrity of the members of this Court and believe that they cannot expect
justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps
chaos might be the result. As a member of the bar and an officer of the courts Atty. Vicente Sotto, like
any other, is in duty bound to uphold the dignity and authority of this Court, to which he owes fidelity
according to the oath he has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.124 (Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be easily gleaned even
from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer, through the imposition of a fine,
for making malicious and unfounded criticisms of a judge in the guise of an administrative complaint and
held, thus:
As an officer of the court and its indispensable partner in the sacred task of administering justice, graver
responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts and to show
respect to its officers. This does not mean, however, that a lawyer cannot criticize a judge. As we stated
in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he cannot criticize the
courts. That is his right as a citizen, and it is even his duty as an officer of the court to avail of such right.
Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also
to consider it his duty to avail of such right. No law may abridge this right. Nor is he "professionally
answerable to a scrutiny into the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over the walls
of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and
slander of courts and the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct, that subjects a lawyer to disciplinary
action.
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of expression in
the Bill of Rights of the Constitution, must be exercised responsibly, for every right carries with it a
corresponding obligation. Freedom is not freedom from responsibility, but freedom with responsibility.
Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in courts,
creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily to undermine
the confidence of people in the integrity of the members of this Court and to degrade the administration
of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of offensive and abusive language (In re:
101
Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68
SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and malicious statements in
pleadings or in a letter addressed to the judge (Baja vs. Macandog, 158 SCRA [1988], citing the resolution
of 19 January 1988 in Phil. Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and
Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks
(Sangalang vs. Intermediate Appellate Court, 177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint which is clearly unfounded
and impelled by ulterior motive will not excuse the lawyer responsible therefor under his duty of fidelity
to his client. x x x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of simple misconduct for using
intemperate language in his pleadings and imposed a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his professional
colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or
otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial officers
and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior
before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the bar to use strong
language in pursuit of their duty to advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and courage, such enthusiasm does
not justify the use of offensive and abusive language. Language abounds with countless possibilities
for one to be emphatic but respectful, convincing but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all offensive
personalityand to advance no fact prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which he is charged. In keeping with the dignity of the legal
profession, a lawyer’s language even in his pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the limits of fair
comment and cannot be deemed as protected free speech. Even In the Matter of Petition for
Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections,129 relied upon by respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press.

The realities of life in a complex society preclude however a literal interpretation. Freedom of expression
is not an absolute. It would be too much to insist that at all times and under all circumstances it should
remain unfettered and unrestrained. There are other societal values that press for recognition. x x
x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the threat to judicial
independence and the orderly administration of justice that immoderate, reckless and unfair attacks on
judicial decisions and institutions pose. This Court held as much in Zaldivar v. Sandiganbayan and
Gonzales,131 where we indefinitely suspended a lawyer from the practice of law for issuing to the media
statements grossly disrespectful towards the Court in relation to a pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to deny
him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and
of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on
occasion to be adjusted to and accommodated with the requirements of equally important public
interest. One of these fundamental public interests is the maintenance of the integrity and orderly
functioning of the administration of justice. There is no antinomy between free expression and the
integrity of the system of administering justice. For the protection and maintenance of freedom of
expression itself can be secured only within the context of a functioning and orderly system of
dispensing justice, within the context, in other words, of viable independent institutions for delivery of
justice which are accepted by the general community. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents133 that the Statement presents
no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere with respondents’ academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic freedom
and undisputably, they are free to determine what they will teach their students and how they will
teach. We must point out that there is nothing in the Show Cause Resolution that dictates upon
respondents the subject matter they can teach and the manner of their instruction. Moreover, it is not
inconsistent with the principle of academic freedom for this Court to subject lawyers who teach law to
disciplinary action for contumacious conduct and speech, coupled with undue intervention in favor of a
party in a pending case, without observing proper procedure, even if purportedly done in their capacity
as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any previous case
before this Court, is the question of whether lawyers who are also law professors can invoke academic
freedom as a defense in an administrative proceeding for intemperate statements tending to pressure
the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech" defense in other bar discipline
cases, academic freedom cannot be successfully invoked by respondents in this case. The implicit ruling
in the jurisprudence discussed above is that the constitutional right to freedom of expression of
members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the
courts and to uphold the public’s faith in the legal profession and the justice system. To our mind, the
reason that freedom of expression may be so delimited in the case of lawyers applies with greater force
to the academic freedom of law professors.
102
It would do well for the Court to remind respondents that, in view of the broad definition in Cayetano v.
Monsod,134lawyers when they teach law are considered engaged in the practice of law. Unlike professors
in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath
to uphold the ethical standards of the legal profession. Thus, their actions as law professors must be
measured against the same canons of professional responsibility applicable to acts of members of the
Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents’ proposition in the Common Compliance that their
issuance of the Statement was in keeping with their duty to "participate in the development of the legal
system by initiating or supporting efforts in law reform and in the improvement of the administration of
justice" under Canon 4 of the Code of Professional Responsibility, we cannot agree that they have
fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13 to give due respect to legal
processes and the courts, and to avoid conduct that tends to influence the courts. Members of the Bar
cannot be selective regarding which canons to abide by given particular situations. With more reason
that law professors are not allowed this indulgence, since they are expected to provide their students
exemplars of the Code of Professional Responsibility as a whole and not just their preferred portions
thereof.
The Court’s rulings on the submissions regarding the charge of violation of Canons 1, 11 and 13.
Having disposed of respondents’ main arguments of freedom of expression and academic freedom, the
Court considers here the other averments in their submissions.
With respect to good faith, respondents’ allegations presented two main ideas: (a) the validity of their
position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure motive to spur this
Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents’ staunch belief that Justice Del
Castillo has committed a misconduct that the majority of this Court has found so unbecoming in the
Show Cause Resolution. No matter how firm a lawyer’s conviction in the righteousness of his cause there
is simply no excuse for denigrating the courts and engaging in public behavior that tends to put the
courts and the legal profession into disrepute. This doctrine, which we have repeatedly upheld in such
cases as Salcedo, In re Almacen and Saberong, should be applied in this case with more reason, as the
respondents, not parties to the Vinuya case, denounced the Court and urged it to change its decision
therein, in a public statement using contumacious language, which with temerity they subsequently
submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas was one of
the objectives of the Statement could be seen in the following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only of Filipino women, but of
women elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times
of war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
(3) The same breach and consequent disposition of the Vinuya case does violence to the primordial
function of the Supreme Court as the ultimate dispenser of justice to all those who have been left
without legal or equitable recourse, such as the petitioners therein.135 (Emphases and underscoring
supplied.)
 103

Whether or not respondents’ views regarding the plagiarism issue in the Vinuya case had valid basis was nothing to prevent respondents from recalibrating the Statement to take this supervening event into
wholly immaterial to their liability for contumacious speech and conduct. These are two separate account in the interest of fairness.
matters to be properly threshed out in separate proceedings. The Court considers it highly inappropriate,
if not tantamount to dissembling, the discussion devoted in one of the compliances arguing the guilt of
Speaking of the publicity this case has generated, we likewise find no merit in the respondents’ reliance
Justice Del Castillo. In the Common Compliance, respondents even go so far as to attach documentary
on various news reports and commentaries in the print media and the internet as proof that they are
evidence to support the plagiarism charges against Justice Del Castillo in the present controversy. The
being unfairly "singled out." On the contrary, these same annexes to the Common Compliance show that
ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a motion for reconsideration,
it is not enough for one to criticize the Court to warrant the institution of disciplinary137 or
was still pending at the time of the filing of respondents’ submissions in this administrative case. As
contempt138 action. This Court takes into account the nature of the criticism and weighs the possible
respondents themselves admit, they are neither parties nor counsels in the ethics case against Justice
repercussions of the same on the Judiciary. When the criticism comes from persons outside the
Del Castillo. Notwithstanding their professed overriding interest in said ethics case, it is not proper
profession who may not have a full grasp of legal issues or from individuals whose personal or other
procedure for respondents to bring up their plagiarism arguments here especially when it has no bearing
interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them. However,
on their own administrative case.
when law professors are the ones who appear to have lost sight of the boundaries of fair commentary
and worse, would justify the same as an exercise of civil liberties, this Court cannot remain silent for such
Still on motive, it is also proposed that the choice of language in the Statement was intended for silence would have a grave implication on legal education in our country.
effective speech; that speech must be "forceful enough to make the intended recipients listen."136 One
wonders what sort of effect respondents were hoping for in branding this Court as, among others,
With respect to the 35 respondents named in the Common Compliance, considering that this appears to
callous, dishonest and lacking in concern for the basic values of decency and respect. The Court fails to
be the first time these respondents have been involved in disciplinary proceedings of this sort, the Court
see how it can ennoble the profession if we allow respondents to send a signal to their students that the
is willing to give them the benefit of the doubt that they were for the most part well-intentioned in the
only way to effectively plead their cases and persuade others to their point of view is to be offensive.
issuance of the Statement. However, it is established in jurisprudence that where the excessive and
contumacious language used is plain and undeniable, then good intent can only be mitigating. As this
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in full in the Court expounded in Salcedo:
narration of background facts to illustrate the sharp contrast between the civil tenor of these letters and
the antagonistic irreverence of the Statement. In truth, these foreign authors are the ones who would
In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court or to
expectedly be affected by any perception of misuse of their works. Notwithstanding that they are
be recreant to the respect thereto but, unfortunately, there are his phrases which need no further
beyond the disciplinary reach of this Court, they still obviously took pains to convey their objections in a
comment. Furthermore, it is a well settled rule in all places where the same conditions and practice as
deferential and scholarly manner. It is unfathomable to the Court why respondents could not do the
those in this jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45). Neither is
same. These foreign authors’ letters underscore the universality of the tenet that legal professionals
the fact that the phrases employed are justified by the facts a valid defense:
must deal with each other in good faith and due respect. The mark of the true intellectual is one who can
express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive
recriminations. "Where the matter is abusive or insulting, evidence that the language used was justified by the facts is
not admissible as a defense. Respect for the judicial office should always be observed and enforced." (In
re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at most an extenuation of
As for the claim that the respondents’ noble intention is to spur the Court to take "constructive action"
liability in this case, taking into consideration Attorney Vicente J. Francisco's state of mind, according to
on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement was primarily
him when he prepared said motion. This court is disposed to make such concession. However, in order to
meant for this Court’s consideration, why was the same published and reported in the media first before
avoid a recurrence thereof and to prevent others, by following the bad example, from taking the same
it was submitted to this Court? It is more plausible that the Statement was prepared for consumption by
course, this court considers it imperative to treat the case of said attorney with the justice it
the general public and designed to capture media attention as part of the effort to generate interest in
deserves.139 (Emphases supplied.)
the most controversial ground in the Supplemental Motion for Reconsideration filed in the Vinuya case
by Atty. Roque, who is respondents’ colleague on the UP Law faculty.
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim of
good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect to the
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due respect to
courts and to refrain from intemperate and offensive language tending to influence the Court on
the Court, particularly when respondents knew fully well that the matter of plagiarism in the Vinuya
pending matters or to denigrate the courts and the administration of justice.
decision and the merits of the Vinuya decision itself, at the time of the Statement’s issuance, were still
both sub judice or pending final disposition of the Court. These facts have been widely publicized. On this
point, respondents allege that at the time the Statement was first drafted on July 27, 2010, they did not With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance compared to
know of the constitution of the Ethics Committee and they had issued the Statement under the belief his colleagues. In our view, he was the only one among the respondents who showed true candor and
that this Court intended to take no action on the ethics charge against Justice Del Castillo. Still, there was sincere deference to the Court. He was able to give a straightforward account of how he came to sign
a significant lapse of time from the drafting and printing of the Statement on July 27, 2010 and its the Statement. He was candid enough to state that his agreement to the Statement was in principle and
publication and submission to this Court in early August when the Ethics Committee had already been that the reason plagiarism was a "fair topic of discussion" among the UP Law faculty prior to the
convened. If it is true that the respondents’ outrage was fueled by their perception of indifference on the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought
part of the Court then, when it became known that the Court did intend to take action, there was about by a division of opinion on whether or not willful or deliberate intent was an element of

plagiarism. He was likewise willing to acknowledge that he may have been remiss in failing to assess the
effect of the language of the Statement and could have used more care. He did all this without having to
retract his position on the plagiarism issue, without demands for undeserved reliefs (as will be discussed
below) and without baseless insinuations of deprivation of due process or of prejudgment. This is all that
this Court expected from respondents, not for them to sacrifice their principles but only that they
recognize that they themselves may have committed some ethical lapse in this affair. We commend Prof.
Vaquez for showing that at least one of the respondents can grasp the true import of the Show Cause
Resolution involving them. For these reasons, the Court finds Prof. Vasquez’s Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of Minnesota
and, therefore, not under the disciplinary authority of this Court, he should be excused from these
proceedings. However, he should be reminded that while he is engaged as a professor in a Philippine law
school he should strive to be a model of responsible and professional conduct to his students even
without the threat of sanction from this Court. For even if one is not bound by the Code of Professional
Responsibility for members of the Philippine Bar, civility and respect among legal professionals of any
nationality should be aspired for under universal standards of decency and fairness.
The Court’s ruling on Dean Leonen’s Compliance regarding the charge of violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be
disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting a
"dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and faithful
reproduction of the actual signed copy, Restoring Integrity I, because looking at the text or the body,
there were no differences between the two. He attempts to downplay the discrepancies in the signature
pages of the two versions of the Statement (i.e., Restoring Integrity I and Restoring Integrity II) by
claiming that it is but expected in "live" public manifestos with dynamic and evolving pages as more and
more signatories add their imprimatur thereto. He likewise stresses that he is not administratively liable
because he did not misrepresent the members of the UP Law faculty who "had agreed with the
Restoring Integrity Statement proper and/or who had expressed their desire to be signatories
thereto."140
To begin with, the Court cannot subscribe to Dean Leonen’s implied view that the signatures in the
Statement are not as significant as its contents. Live public manifesto or not, the Statement was formally
submitted to this Court at a specific point in time and it should reflect accurately its signatories at that
point. The value of the Statement as a UP Law Faculty Statement lies precisely in the identities of the
persons who have signed it, since the Statement’s persuasive authority mainly depends on the
reputation and stature of the persons who have endorsed the same. Indeed, it is apparent from
respondents’ explanations that their own belief in the "importance" of their positions as UP law
professors prompted them to publicly speak out on the matter of the plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonen’s predicament is the fact that he did not from
the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11, 2010 and,
instead, submitted Restoring Integrity II with its retyped or "reformatted" signature pages. It would turn
out, according to Dean Leonen’s account, that there were errors in the retyping of the signature pages
due to lapses of his unnamed staff. First, an unnamed administrative officer in the dean’s office gave the
dean inaccurate information that led him to allow the inclusion of Justice Mendoza as among the
signatories of Restoring Integrity II. Second, an unnamed staff also failed to type the name of Atty.
104
Armovit when encoding the signature pages of Restoring Integrity II when in fact he had signed Restoring
Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a signed
document may have to be reformatted and signatures may be indicated by the notation (SGD). This is
not unusual. We are willing to accept that the reformatting of documents meant for posting to eliminate
blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed document for the
Court’s consideration that did not contain the actual signatures of its authors. In most cases, it is
the original signed document that is transmitted to the Court or at the very least a photocopy of the
actual signed document. Dean Leonen has not offered any explanation why he deviated from this
practice with his submission to the Court of Restoring Integrity II on August 11, 2010. There was nothing
to prevent the dean from submitting Restoring Integrity I to this Court even with its blanks and unsigned
portions. Dean Leonen cannot claim fears of vandalism with respect to court submissions for court
employees are accountable for the care of documents and records that may come into their custody.
Yet, Dean Leonen deliberately chose to submit to this Court the facsimile that did not contain the actual
signatures and his silence on the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen’s explanations yield the answer. In the course of his explanation of
his willingness to accept his administrative officer’s claim that Justice Mendoza agreed to be indicated as
a signatory, Dean Leonen admits in a footnote that other professors had likewise only authorized him to
indicate them as signatories and had not in fact signed the Statement. Thus, at around the time
Restoring Integrity II was printed, posted and submitted to this Court, at least one purported signatory
thereto had not actually signed the same. Contrary to Dean Leonen’s proposition, that is precisely
tantamount to making it appear to this Court that a person or persons participated in an act when such
person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent
standards of intellectual honesty, could proffer the explanation that there was no misrepresentation
when he allowed at least one person to be indicated as having actually signed the Statement when all he
had was a verbal communication of an intent to sign. In the case of Justice Mendoza, what he had was
only hearsay information that the former intended to sign the Statement. If Dean Leonen was truly
determined to observe candor and truthfulness in his dealings with the Court, we see no reason why he
could not have waited until all the professors who indicated their desire to sign the Statement had in fact
signed before transmitting the Statement to the Court as a duly signed document. If it was truly
impossible to secure some signatures, such as that of Justice Mendoza who had to leave for abroad, then
Dean Leonen should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual signatures before
submission of the Statement to this Court. As respondents all asserted, they were neither parties to nor
counsels in the Vinuya case and the ethics case against Justice Del Castillo. The Statement was neither a
pleading with a deadline nor a required submission to the Court; rather, it was a voluntary submission
that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory. However, the Court is willing
to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in pursuit of his
objectives. In due consideration of Dean Leonen’s professed good intentions, the Court deems it
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sufficient to admonish Dean Leonen for failing to observe full candor and honesty in his dealings with the As respondents are fully aware, in general, administrative proceedings do not require a trial type
Court as required under Canon 10. hearing. We have held that:

Respondents’ requests for a hearing, for production/presentation of evidence bearing on the plagiarism The essence of due process is simply an opportunity to be heard or, as applied to administrative
and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-7-17-SC, and for access to the records proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the
of A.M. No. 10-7-17-SC are unmeritorious. action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be
heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to
present his side. A formal or trial type hearing is not at all times and in all instances essential to due
In the Common Compliance, respondents named therein asked for alternative reliefs should the Court
process, the requirements of which are satisfied where the parties are afforded fair and reasonable
find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for hearing and for
opportunity to explain their side of the controversy.142 (Emphases supplied.)
that purpose, they be allowed to require the production or presentation of witnesses and evidence
bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and the
plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the records of, In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio143 that:
and evidence that were presented or may be presented in the ethics case against Justice Del Castillo. The
prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC was substantially echoed in
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do
Dean Leonen’s separate Compliance. In Prof. Juan-Bautista’s Compliance, she similarly expressed the
not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of
sentiment that "[i]f the Restoring Integrity Statement can be considered indirect contempt, under
one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution.
Section 3 of Rule 71 of the Rules of Court, such may be punished only after charge and hearing."141 It is
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu
this group of respondents’ premise that these reliefs are necessary for them to be accorded full due
proprio. Public interest is its primary objective, and the real question for determination is whether or not
process.
the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an
The Court finds this contention unmeritorious. officer of the Court with the end in view of preserving the purity of the legal profession and the proper
and honest administration of justice by purging the profession of members who by their misconduct
have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs largely
to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or
from its characterization as a special civil action for indirect contempt in the Dissenting Opinion of Justice
a prosecutor.144 (Emphases supplied.)
Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance therein on the majority’s
purported failure to follow the procedure in Rule 71 of the Rules of Court as her main ground for
opposition to the Show Cause Resolution. In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81, Romblon – On the Prohibition
from Engaging in the Private Practice of Law,145 we further observed that:
However, once and for all, it should be clarified that this is not an indirect contempt proceeding and Rule
71 (which requires a hearing) has no application to this case. As explicitly ordered in the Show Cause [I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any formal
Resolution this case was docketed as an administrative matter. investigation where the facts on record sufficiently provided the basis for the determination of their
administrative liability.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary proceedings
initiated motu proprio by the Supreme Court, to wit: In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further investigation after
considering his actions based on records showing his unethical misconduct; the misconduct not only cast
dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and
SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio by the Supreme Court or in
welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and
other proceedings when the interest of justice so requires, the Supreme Court may refer the case for
his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees
investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in
for the astronomical sums they claimed in their cases. The Court held that those cases sufficiently
which case the investigation shall proceed in the same manner provided in sections 6 to 11 hereof, save
provided the basis for the determination of respondents' administrative liability, without need for
that the review of the report of investigation shall be conducted directly by the Supreme Court.
further inquiry into the matter under the principle of res ipsa loquitur.
(Emphasis supplied.)

Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is required
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to the
before the respondent may be disciplined for professional misconduct already established by the facts
specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is only if the
on record.
Court deems such an investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will be
followed.
These cases clearly show that the absence of any formal charge against and/or formal investigation of an
errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as
the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe
 106

has been afforded the opportunity to be heard on the present matter through her letter-query and the above jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary cases. They
Manifestation filed before this Court.146(Emphases supplied.) should bear the consequence of the risk they have taken.

Under the rules and jurisprudence, respondents clearly had no right to a hearing and their reservation of Thus, respondents’ requests for a hearing and for access to the records of, and evidence presented in,
a right they do not have has no effect on these proceedings. Neither have they shown in their pleadings A.M. No. 10-7-17-SC should be denied for lack of merit.
any justification for this Court to call for a hearing in this instance. They have not specifically stated
what relevant evidence, documentary or testimonial, they intend to present in their defense that will
A final word
necessitate a formal hearing.

In a democracy, members of the legal community are hardly expected to have monolithic views on any
Instead, it would appear that they intend to present records, evidence, and witnesses bearing on the
subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously propound their
plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on the
points of view they are bound by certain rules of conduct for the legal profession. This Court is certainly
assumption that the findings of this Court which were the bases of the Show Cause Resolution were
not claiming that it should be shielded from criticism. All the Court demands is the same respect and
made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision in that case.
courtesy that one lawyer owes to another under established ethical standards. All lawyers, whether they
This is the primary reason for their request for access to the records and evidence presented in A.M. No.
are judges, court employees, professors or private practitioners, are officers of the Court and have
10-7-17-SC.
voluntarily taken an oath, as an indispensable qualification for admission to the Bar, to conduct
themselves with good fidelity towards the courts. There is no exemption from this sworn duty for law
This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M. No. 10- professors, regardless of their status in the academic community or the law school to which they belong.
7-17-SC that is relevant to the case at bar is the fact that the submission of the actual signed copy of the
Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact,
WHEREFORE, this administrative matter is decided as follows:
it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against Justice Del
Castillo, is a separate and independent matter from this case.
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his
Compliance to be satisfactory.
To find the bases of the statements of the Court in the Show Cause Resolution that the respondents
issued a Statement with language that the Court deems objectionable during the pendency of the Vinuya
case and the ethics case against Justice Del Castillo, respondents need to go no further than the four (2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen, Froilan
corners of the Statement itself, its various versions, news reports/columns (many of which respondents M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
themselves supplied to this Court in their Common Compliance) and internet sources that are already of Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
public knowledge. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R.
Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Considering that what respondents are chiefly required to explain are the language of the Statement and
Concepcion L. Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Rodolfo
the circumstances surrounding the drafting, printing, signing, dissemination, etc., of its various versions,
Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G.
the Court does not see how any witness or evidence in the ethics case of Justice Del Castillo could
Ursua, Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35
possibly shed light on these facts. To be sure, these facts are within the knowledge of respondents and if
respondent law professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of
there is any evidence on these matters the same would be in their possession.
the Code of Professional Responsibility, to give due respect to the Court and to refrain from
intemperate and offensive language tending to influence the Court on pending matters or to
We find it significant that in Dean Leonen’s Compliance he narrated how as early as September 2010, denigrate the Court and the administration of justice and warned that the same or similar act
i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October 12, 2010 and in the future shall be dealt with more severely.
before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice Vicente V. Mendoza,
after being shown a copy of the Statement upon his return from abroad, predicted that the Court would
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation
take some form of action on the Statement. By simply reading a hard copy of the Statement, a
of Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of his
reasonable person, even one who "fundamentally agreed" with the Statement’s principles, could foresee
duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to
the possibility of court action on the same on an implicit recognition that the Statement, as worded, is
observe full candor and honesty in his dealings with the Court and warned that the same or
not a matter this Court should simply let pass. This belies respondents’ claim that it is necessary for them
similar act in the future shall be dealt with more severely.
to refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the bases for the Show Cause
Resolution.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these proceedings.
However, he is reminded that while he is engaged as a professor in a Philippine law school he
If respondents have chosen not to include certain pieces of evidence in their respective compliances or
should strive to be a model of responsible and professional conduct to his students even
chosen not to make a full defense at this time, because they were counting on being granted a hearing,
without the threat of sanction from this Court.
that is respondents’ own look-out. Indeed, law professors of their stature are supposed to be aware of
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(5) Finally, respondents’ requests for a hearing and for access to the records of A.M. No. 10-7- Held:
17-SC are denied for lack of merit.
Issuance of show cause order resolution to the respondents (UP Law Faculty) as to why they should not
SO ORDERED. be disciplined as members of the Bar per issues stated above. [case is ongoing]

Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University
of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the
Supreme Court.”
Facts:
SC
Allegations of plagiarism were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against
Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary. In said case,
the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of
the executive department to espouse their claims for reparation and demand apology from the Japanese
government for the abuses committed against them by the Japanese soldiers during World War II. Attys.
Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently
the subject of a motion for reconsideration.
UP Law Faculty
37 members of the faculty of the University of the Philippines College of Law published a statement on
the allegations of plagiarism and misrepresentation relative to the Court’s decision in Vinuya v. Executive
Secretary. Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F.
Leonen, calls for the resignation of Justice Del Castillo in the face of allegations of plagiarism in his work.
Notably, while the statement was meant to reflect the educators’ opinion on the allegations of
plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a
truth. In particular, they expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited
the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the
authors of the articles supposedly plagiarized.
The insult to the members of the Court was aggravated by imputations of deliberately delaying the
resolution of the said case, its dismissal on the basis of “polluted sources,” the Court’s alleged
indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and respect.
Dissenting Opinion:
(1) Serreno, J.
This Court, as complaining party, must state plainly how its ability to view the motion for reconsideration
of the Vinuya decision can be affected in any way by the UP Law Faculty’s statement. It must also state
plainly how its ability to enforce its future orders would be eroded by the release of the UP Law Faculty
Statement. The milieu in which the Vinuya decision was received by the public is well-known. It is not as
if any outrage at the Vinuya decision was caused by the UP Law Faculty Statement alone. It is also
incredible how the Court can claim that its honesty, integrity and competence could be eroded by an
extraneous act of any person other than itself. Either one is honest, has integrity, or is competent – or he
is not. No one can undermine those qualities other than the one in whom they inhere.
Even more important to keep in mind is the apparently redemptive intent of the UP Law Faculty when it
issued its statement. The statement is headlined by the phrase “Restoring Integrity.” In the second
paragraph, the Faculty says: “Given the Court’s recent history and the controversy that surrounded it, it
cannot allow the charges of such clear and obvious plagiarism to pass without sanction, as this would
only further erode faith and confidence in the judicial system.” In the next paragraph, it says: “The Court
cannot regain its credibility and maintain its moral authority without ensuring that its own conduct,
whether collectively or through its members, is beyond reproach.” In the same paragraph, it further says:
“It is also a very crucial step in ensuring the position of the Supreme Court as the final arbiter of all
controversies: a position that requires competence and integrity completely above any and all reproach,
in accordance with the exacting demands of judicial and professional ethics.”
Carpio Morales, J.
The Resolution demonstrates nothing but an abrasive flexing of the judicial muscle that could hardly be
characterized as judicious. This knee-jerk response from the Court stares back at its own face, since this
judicial act is the one that is “totally unnecessary, uncalled for and a rash act of misplaced vigilance.”

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

Issue: Whether or not the UP Law Faculty’s actions constitute violations of Canons 10, 11, and 13 and
Rules 1.02 and 11.05 of the Code of Professional Responsibility.

SECOND DIVISION
G.R. No. 194578 February 13, 2013
PHILIP SIGFRID A. FORTUN, Petitioner,
vs.
PRIMA JESUSA B. QUINSAYAS, MA. GEMMA OQUENDO, DENNIS AYON, NENITA OQUENDO, ESMAEL
MANGUDADATU, JOSE PAVIA, MELINDA QUINTOS DE JESUS, REYNALDO HULOG, REDMOND BATARIO,
MALOU MANGAHAS, DANILO GOZO, GMA NETWORK INC., through its new editors Raffy Jimenez and
Victor Sollorano, SOPHIA DEDACE, ABS-CBN CORPORATION, through the Head of its News Group,
Maria Ressa, CECILIA VICTORIA OREÑA-DRILON, PHILIPPINE DAILY INQUIRER, INC. represented by its
Editor-in-Chief Letty Jimenez Magsanoc, TETCH TORRES, PHILIPPINE STAR represented by its Editor-in-
Chief Isaac Belmonte, and EDU PUNAY, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for Contempt filed by Atty. Philip Sigfrid A. Fortun (petitioner) against Atty.
Prima Jesusa B. Quinsayas (Atty. Quinsayas), Ma. Gemma Oquendo (Gemma), Dennis Ayon (Ayon),
Nenita Oquendo (Nenita), Esmael Mangudadatu (Mangudadatu), Jose Pavia (Pavia), Melinda Quintos De
Jesus (De Jesus), Reynaldo Hulog (Hulog), Redmond Batario (Batario), Malou Mangahas (Mangahas), and
Danilo Gozo (Gozo). Atty. Quinsayas and the other respondents, who are not from the media, are
referred to in this case as Atty. Quinsayas, et al. Petitioner also named as respondents GMA Network,
Inc. (GMA Network) through its news editors Raffy Jimenez and Victor Sollorano, Sophia Dedace
(Dedace), ABS-CBN Corporation (ABS-CBN) through the Head of its News Group Maria Ressa (Ressa),
Cecilia Victoria Oreña-Drilon (Drilon), Philippine Daily Inquirer, Inc. (PDI) represented by its Editor-in-
Chief Letty Jimenez Magsanoc, Tetch Torres (Torres), Philippine Star (PhilStar) represented by its Editor-
in-Chief Isaac Belmonte, and Edu Punay (Punay). Respondents Atty. Quinsayas, et al. and respondent
media groups and personalities are collectively referred to in this case as respondents.
The Antecedent Facts
On 23 November 2009, a convoy of seven vehicles carrying the relatives of then Maguindanao vice-
mayor Esmael "Toto" Mangudadatu, as well as lawyers and journalists, was on their way to the
Commission on Elections office in Shariff Aguak to file Mangudadatu’s Certificate of Candidacy1 when
they were accosted by a group of about 100 armed men at a checkpoint in Sitio Malating, Ampatuan
town, some four to ten kilometers from their destination.2The group was taken hostage and brought to a
hilly and sparsely-populated part of Sitio Magating, Barangay Salman, Ampatuan, Maguindanao.3 The
gruesome aftermath of the hostage-taking was later discovered and shocked the world. The hostages
were systematically killed by shooting them at close range with automatic weapons, and their bodies and
vehicles were dumped in mass graves and covered with the use of a backhoe.4 These gruesome killings
became known as the Maguindanao Massacre. A total of 57 victims were killed, 30 of them journalists.
Subsequently, criminal cases for Murder were filed and raffled to the Regional Trial Court of Quezon City,
Branch 221, and docketed as Criminal Cases No. Q-09-162148-172, Q-09-162216-31, Q-10-162652, and
Q-10- 163766. Petitioner is the counsel for Datu Andal Ampatuan, Jr. (Ampatuan, Jr.), the principal
accused in the murder cases.
108
In November 2010, Atty. Quinsayas, et al. filed a disbarment complaint against petitioner before this
Court, docketed as Bar Matter No. A.C. 8827. The disbarment case is still pending.
Petitioner alleged that on 22 November 2010, GMA News TV internet website posted an article, written
by Dedace, entitled "Mangudadatu, others seek disbarment of Ampatuan lawyer," a portion of which
reads:
On Monday, Maguindanao Governor Esmael "Toto" Mangudadatu and four others filed a 33 page
complaint against lawyer Sigrid Fortun whom they accused of "engaging in every conceivable
chichancery or artifice to unduly delay the proceedings by using and abusing legal remedies available."5
On even date, Inquirer.net, the website of PDI, also published an article, written by Torres, which
according to petitioner also stated details of the disbarment case, as follows:
"Respondent Atty. Fortun had astutely embarked in an untiring quest to obstruct, impede and degrade
the administration of justice by filing countless causes of action, all in the hope of burying the principal
issue of his client’s participation or guilt in the murder of 57 people that ill-fated day of November 23,
2009," the petitioners said.6
Petitioner further alleged that on 23 November 2010, PhilStar published an article, written by Punay,
which gave details of the disbarment allegations, thus:
"Attorney Fortun used and abused legal remedies available and allowed under under the rules, muddled
the issues and diverted the attention away from the main subject matter of the cases, read the
complaint.
"Respondent Attorney Fortun’s act of misleading the prosecution and trial court is a dishonest/deceitful
conduct violative of Code of Professional Responsibility," read the complaint.
"In so doing, he diminished the public confidence in the law and the legal profession, rendering him unfit
to be called a member of the Bar."7
Further, petitioner alleged that on 23 November 2010, Channel 23 aired on national television a program
entitled "ANC Presents: Crying for Justice: the Maguindanao Massacre." Drilon, the program’s host,
asked questions and allowed Atty. Quinsayas to discuss the disbarment case against petitioner, including
its principal points. Petitioner was allegedly singled out and identified in the program as the lead counsel
of the Ampatuan family.
Petitioner alleged that Atty. Quinsayas, et al. actively disseminated the details of the disbarment
complaint against him in violation of Rule 139-B of the Rules of Court on the confidential nature of
disbarment proceedings. Petitioner further alleged that respondent media groups and personalities
conspired with Atty. Quinsayas, et al. by publishing the confidential materials on their respective media
platforms. Petitioner pointed out that Drilon discussed the disbarment complaint with Atty. Quinsayas in
a television program viewed nationwide
Petitioner alleged that the public circulation of the disbarment complaint against him exposed this Court
and its investigators to outside influence and public interference. Petitioner alleged that opinion writers
 109

wrote about and commented on the disbarment complaint which opened his professional and personal
reputation to attack. He alleged that the purpose of respondents in publishing the disbarment complaint
was to malign his personal and professional reputation, considering the following: (1) the bases of the
charges were not new but were based on incidents that supposedly took place in January 2010; (2) it was
timed to coincide with the anniversary of the Maguindanao Massacre to fuel hatred, contempt and scorn
for Ampatuan, Jr. and his counsel and violated the accused’s right to presumption of innocence and due
process; (3) it was published following articles written about petitioner’s advocacy for the rights of an
accused and negated the impact of these articles on the public; and (4) respondents knew that the
charges were baseless as petitioner always opted for speedy trial and protection of the accused’s rights
at trial. Petitioner further alleged that in announcing their "causes of action" in the disbarment case,
respondents were only seeking the approval and sympathy of the public against him and Ampatuan, Jr.
independent act and she did not conspire with any of the other respondents. Torres maintained that she
acted in good faith in writing the news report because the Maguindanao Massacre was a matter of
public concern and the allegations in the disbarment complaint were in connection with petitioner’s
handling of the case. Torres further asserted that petitioner is a public figure and the public has a
legitimate interest in his doings, affairs and character.
In her Comment, Ressa alleged that she was the former head of ABS-CBN’s News and Current Affairs
Group and the former Managing Director of ANC. However, she was on terminal leave beginning 30
October 2010 in advance to the expiration of her contract on 3 January 2011. Ressa alleged that she had
no participation in the production and showing of the broadcast on 23 November 2010. Ressa adopts the
answer of her co-respondents ABS-CBN and Drilon insofar as it was applicable to her case.

In its Comment, GMA Network alleged that it has no newspaper or any publication where it could have
ABS-CBN and Drilon filed a joint Comment. ABS-CBN alleged that ABS-CBN News Channel, commonly
printed the article. It alleged that it did not broadcast the disbarment complaint on its television station.
known as ANC, is maintained and operated by Sarimanok Network News (SNN) and not by ABS-CBN.
GMA Network alleged that the publication had already been done and completed when Atty. Quinsayas
SNN, which produced the program "ANC Presents: Crying for Justice: the Maguindanao Massacre," is a
distributed copies of the disbarment complaint and thus, the members of the media who reported the
subsidiary of ABS-CBN but it has its own juridical personality although SNN and ABS-CBN have
news and the media groups that published it on their website, including GMA Network, did not violate
interlocking directors. ABS-CBN and Drilon alleged that the presentation and hosting of the program
the confidentiality rule. GMA Network further alleged that Dedace, a field reporter for the judiciary,
were not malicious as there was no criminal intent to violate the confidentiality rule in disbarment
acted in good faith and without malice when she forwarded the news to the news desk. GMA News also
proceedings. They alleged that the program was a commemoration of the Maguindanao Massacre and
acted in good faith in posting the news on its website. GMA Network denied that it conspired with the
was not a report solely on the disbarment complaint against petitioner which took only a few minutes of
other respondents in publishing the news. GMA Network alleged that it posted the disbarment
the one-hour program. They alleged that the program was not a publication intended to embarrass
complaint, without any unfair, critical, and untruthful comment, and only after it was "published" by
petitioner who was not even identified as the respondent in the disbarment complaint. Drilon even
Atty. Quinsayas, et al. who furnished copies of the disbarment complaint to the media reporters. GMA
cautioned against the revelation of petitioner’s name in the program. ABS-CBN and Drilon further alleged
Network alleged that it had no intention to malign petitioner’s personal and professional reputation in
that prior to the broadcast of the program on 23 November 2010, the filing of the disbarment complaint
posting the news about the disbarment complaint on its website.
against petitioner was already the subject of widespread news and already of public knowledge. They
denied petitioner’s allegation that they conspired with the other respondents in violating the
In her Comment, Dedace clarified that she is a field news reporter of GMA Network and not a writer of confidentiality rule in disbarment proceedings. Finally, they alleged that the contempt charge violates
the GMA News TV website. Her beat includes the Supreme Court, the Court of Appeals, and the their right to equal protection because there were other reports and publications of the disbarment
Department of Justice. Dedace alleged that on 22 November 2010, she received an advice from fellow complaint but the publishers were not included in the charge. They also assailed the penalty of
field reporter Mark Merueñas that the lawyer of Mangudadatu would be filing a disbarment case against imprisonment prayed for by petitioner as too harsh.
petitioner. She waited at the Supreme Court. At around 5:00 p.m., Atty. Quinsayas arrived. Atty.
Quinsayas gave copies of the petition to news reporters and Dedace received one. Dedace prepared and
In their joint Comment, respondents Mangudadatu, Ayon, Nenita, and Gemma alleged that petitioner
sent her news story to GMA Network where it went to the editor. Dedace alleged that she did not breach
failed to prove that they actively participated in disseminating details of the disbarment complaint
the rule on confidentiality of disbarment proceedings against lawyers when she reported the filing of the
against him. They alleged that while they were the ones who filed the disbarment complaint against
disbarment complaint against petitioner. She alleged that she acted in good faith and without malice in
petitioner, it does not follow that they were also the ones who caused the publication of the complaint.
forwarding her news story to the news desk and that she had no intention to, and could not, influence or
They alleged that petitioner did not provide the name of any particular person, dates, days or places to
interfere in the proceedings of the disbarment case. She further alleged that she honestly believed that
show the alleged confederation in the dissemination of the disbarment complaint.
the filing of the disbarment complaint against petitioner was newsworthy and should be reported as
news.
Respondents De Jesus, Hulog, Batario, and Mangahas, in their capacity as members of the Board of
Trustees of the Freedom Fund for Filipino Journalists, Inc. (FFFJ) and Atty. Quinsayas, former counsel for
PDI alleged in its Comment that it shares content with the Inquirer.net website through a syndication but
FFFJ, also filed a joint Comment claiming that the alleged posting and publication of the articles were not
the latter has its own editors and publish materials that are not found on the broadsheet. It alleged that
established as a fact. Respondents alleged that petitioner did not submit certified true copies of the
Philippine Daily Inquirer, Inc. and Inquirer Interactive, Inc. are two different corporations, with separate
articles and he only offered to submit a digital video disk (DVD) copy of the televised program where
legal personalities, and one may not be held responsible for the acts of the other.
Atty. Quinsayas was allegedly interviewed by Drilon. Respondents alleged that, assuming the articles
were published, petitioner failed to support his allegations that they actively disseminated the details of
Torres8 alleged in her Comment that on 17 November 2010, a private prosecutor told her and several the disbarment complaint.
other reporters that a disbarment case would be filed against petitioner. The disbarment case was
actually filed on 22 November 2010 when Torres received a copy of the complaint. Since the lead of the
In their joint Comment, PhilStar and Punay alleged that on 22 November 2010, Atty. Quinsayas, et al.
story came from a lawyer, Torres did not consider that writing a story about the filing of the disbarment
went to this Court to file the disbarment complaint but they were not able to file it on that day.9 Atty.
complaint might amount to contempt of court. Torres alleged that the writing of the story was an
Quinsayas, et al. were able to file the disbarment complaint the following day, or on 23 November 2010.

PhilStar and Punay alleged that their news article, which was about the plan to file a disbarment
complaint against petitioner, was published on 23 November 2010. It came out before the disbarment
complaint was actually filed. They alleged that the news article on the disbarment complaint is a
qualified privileged communication. They alleged that the article was a true, fair, and accurate report on
the disbarment complaint. The article was straightforward, truthful, and accurate, without any
comments from the author. They alleged that Punay reported the plan of Mangudadatu, et al. to file the
disbarment complaint against petitioner as it involved public interest and he perceived it to be a
newsworthy subject. They further alleged that assuming the news article is not a privileged
communication, it is covered by the protection of the freedom of expression, speech, and of the press
under the Constitution. They also alleged that the case is a criminal contempt proceeding and intent to
commit contempt of court must be shown by proof beyond reasonable doubt. They further alleged that
they did not commit any contemptible act. They maintained that the news article did not impede,
interfere with, or embarrass the administration of justice. They further claimed that it is improbable, if
not impossible, for the article to influence the outcome of the case or sway this Court in making its
decision. The article also did not violate petitioner’s right to privacy because petitioner is a public figure
and the public has a legitimate interest in his doings, affairs, and character.
Pavia died during the pendency of this case10 and was no longer included in the Comment filed for the
FFFJ Trustees. Gozo resigned as member of the FFFJ Trustees and was no longer represented by the FFFJ
counsel in filing its comment.11 Gozo did not file a separate comment.
The Issue
The only issue in this case is whether respondents violated the confidentiality rule in disbarment
proceedings, warranting a finding of guilt for indirect contempt of court.
The Ruling of this Court
First, the contempt charge filed by petitioner is in the nature of a criminal contempt. In People v.
Godoy,12 this Court made a distinction between criminal and civil contempt. The Court declared:
A criminal contempt is conduct that is directed against the dignity and authority of the court or a judge
acting judicially; it is an act obstructing the administration of justice which tends to bring the court into
disrepute or disrespect. On the other hand, civil contempt consists in failing to do something ordered to
be done by a court in a civil action for the benefit of the opposing party therein and is, therefore, an
offense against the party in whose behalf the violated order is made.
A criminal contempt, being directed against the dignity and authority of the court, is an offense against
organized society and, in addition, is also held to be an offense against public justice which raises an
issue between the public and the accused, and the proceedings to punish it are punitive. On the other
hand, the proceedings to punish a civil contempt are remedial and for the purpose of the preservation of
the right of private persons. It has been held that civil contempt is neither a felony nor a misdemeanor,
but a power of the court.
It has further been stated that intent is a necessary element in criminal contempt, and that no one can
be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it.
On the contrary, there is authority indicating that since the purpose of civil contempt proceedings is
remedial, the defendant’s intent in committing the contempt is immaterial. Hence, good faith or the
absence of intent to violate the court’s order is not a defense in civil contempt.13
110
The records of this case showed that the filing of the disbarment complaint against petitioner had been
published and was the subject of a televised broadcast by respondent media groups and personalities.
We shall discuss the defenses and arguments raised by respondents.
GMA Network, Inc.
GMA Network’s defense is that it has no newspaper or any publication where the article could be
printed; it did not broadcast the disbarment complaint in its television station; and that the publication
was already completed when Atty. Quinsayas distributed copies of the disbarment complaint to the
media.
GMA Network did not deny that it posted the details of the disbarment complaint on its website. It
merely said that it has no publication where the article could be printed and that the news was not
televised. Online posting, however, is already publication considering that it was done on GMA
Network’s online news website.
Philippine Daily Inquirer, Inc.
PDI averred that it only shares its contents with Inquirer.net through a syndication. PDI attached a
photocopy of the syndication page stating that "[d]ue to syndication agreements between PDI and
Inquirer.net, some articles published in PDI may not appear in Inquirer.net."14
A visit to the website describes Inquirer.net as "the official news website of the Philippine Daily Inquirer,
the Philippines’ most widely circulated broadsheet, and a member of the Inquirer Group of
Companies."15 PDI was not able to fully establish that it has a separate personality from Inquirer.net.
ABS-CBN Corporation
ABS-CBN alleged that SNN is its subsidiary and although they have interlocking directors, SNN has its own
juridical personality separate from its parent company. ABS-CBN alleged that SNN controls the line-up of
shows of ANC.
We agree with ABS-CBN on this issue. We have ruled that a subsidiary has an independent and separate
juridical personality distinct from that of its parent company and that any suit against the the latter does
not bind the former and vice-versa.16 A corporation is an artificial being invested by law with a
personality separate and distinct from that of other corporations to which it may be connected.17 Hence,
SNN, not ABS-CBN, should have been made respondent in this case.
Maria Ressa
Respondent Ressa alleged that she was on terminal leave when the program about the Maguindanao
Massacre was aired on ANC and that she had no hand in its production. Ressa’s defense was supported
by a certification from the Human Resource Account Head of ABS-CBN, stating that Ressa went on
terminal leave beginning 30 October 2010.18 This was not disputed by petitioner.

Sophia Dedace, Tetch Torres, Cecilia Victoria Oreña-Drilon,
and Edu Punay
Basically, the defense of respondents Dedace, Torres, Drilon, and Punay was that the disbarment
complaint was published without any comment, in good faith and without malice; that petitioner is a
public figure; that the Maguindanao Massacre is a matter of public interest; and that there was no
conspiracy on their part in publishing the disbarment complaint. They also argued that the news reports
were part of privileged communication.
In Drilon’s case, she further alleged that the television program was a commemoration of the
Maguindanao Massacre and not solely about the filing of the disbarment case against petitioner. Even as
the disbarment complaint was briefly discussed in her program, petitioner’s name was not mentioned at
all in the program.
Violation of Confidentiality Rule by Respondent Media Groups and Personalities
Section 18, Rule 139-B of the Rules of Court provides:
Section 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However,
the final order of the Supreme Court shall be published like its decisions in other cases.
The Court explained the purpose of the rule, as follows:
x x x. The purpose of the rule is not only to enable this Court to make its investigations free from any
extraneous influence or interference, but also to protect the personal and professional reputation of
attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients and
litigants; it is also to deter the press from publishing administrative cases or portions thereto without
authority. We have ruled that malicious and unauthorized publication or verbatim reproduction of
administrative complaints against lawyers in newspapers by editors and/or reporters may be actionable.
Such premature publication constitutes a contempt of court, punishable by either a fine or imprisonment
or both at the discretion of the Court. x x x19
In People v. Castelo,20 the Court ruled that contempt is akin to libel and that the principle of privileged
communication may be invoked in a contempt proceeding. The Court ruled:
While the present case involves an incident of contempt the same is akin to a case of libel for both
constitute limitations upon freedom of the press or freedom of expression guaranteed by our
Constitution. So what is considered a privilege in one may likewise be considered in the other. The same
safeguard should be extended to one whether anchored in freedom of the press or freedom of
expression. Therefore, this principle regarding privileged communications can also be invoked in favor of
appellant.21
The Court recognizes that "publications which are privileged for reasons of public policy are protected by
the constitutional guaranty of freedom of speech."22 As a general rule, disbarment proceedings are
confidential in nature until their final resolution and the final decision of this Court. In this case,
however, the filing of a disbarment complaint against petitioner is itself a matter of public concern
111
considering that it arose from the Maguindanao Massacre case. The interest of the public is not on
petitioner himself but primarily on his involvement and participation as defense counsel in the
Maguindanao Massacre case. Indeed, the allegations in the disbarment complaint relate to petitioners
supposed actions involving the Maguindanao Massacre case.
The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were
journalists. It is understandable that any matter related to the Maguindanao Massacre is considered a
matter of public interest and that the personalities involved, including petitioner, are considered as
public figure. The Court explained it, thus:
But even assuming a person would not qualify as a public figure, it would not necessarily follow that he
could not validly be the subject of a public comment. For he could; for instance, if and when he would be
involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved or because in some sense the individual did not
voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is
on the conduct of the participant and the content, effect and significance of the conduct, not the
participant’s prior anonymity or notoriety.23(Boldface in the original)
Since the disbarment complaint is a matter of public interest, legitimate media had a right to publish
such fact under freedom of the press. The Court also recognizes that respondent media groups and
personalities merely acted on a news lead they received when they reported the filing of the disbarment
complaint.
The distribution by Atty. Quinsayas to the media of the disbarment complaint, by itself, is not sufficient
to absolve the media from responsibility for violating the confidentiality rule. However, since petitioner
is a public figure or has become a public figure because he is representing a matter of public concern,
and because the event itself that led to the filing of the disbarment case against petitioner is a matter of
public concern, the media has the right to report the filing of the disbarment case as legitimate news. It
would have been different if the disbarment case against petitioner was about a private matter as the
media would then be bound to respect the confidentiality provision of disbarment proceedings under
Section 18, Rule 139-B of the Rules of Court.
Section 18, Rule 139-B of the Rules of Court is not a restriction on the freedom of the press.1âwphi1 If
there is a legitimate public interest, media is not prohibited from making a fair, true, and accurate news
report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment
complaint, members of the media must preserve the confidentiality of disbarment proceedings during its
pendency. Disciplinary proceedings against lawyers must still remain private and confidential until their
final determination.24 Only the final order of this Court shall be published like its decisions in other
cases.25
Petitioner also failed to substantiate his claim that respondent media groups and personalities acted in
bad faith and that they conspired with one another in their postings and publications of the filing of a
disbarment complaint against him. Respondent media groups and personalities reported the filing of the
disbarment complaint without any comments or remarks but merely as it was – a news item. Petitioner
failed to prove that respondent media groups and personalities acted with malicious intent. Respondent
media groups and personalities made a fair and true news report and appeared to have acted in good
faith in publishing and posting the details of the disbarment complaint. In the televised broadcast of the
commemoration of the Maguindanao Massacre over ANC, the disbarment case was briefly discussed but
petitioner was not named. There was also no proof that respondent media groups and personalities
 112

posted and published the news to influence this Court on its action on the disbarment case or to
deliberately destroy petitioner’s reputation. It should also be remembered that the filing of the
disbarment case against petitioner entered the public domain without any act on the part of the media.
As we will discuss later, the members of the media were given copies of the disbarment complaint by
one of the complainants.
WHEREFORE, we find Atty. Prima Jesusa B. Quinsayas GUILTY of indirect contempt for distributing copies
of the disbarment complaint against Atty. Philip Sigfrid A. Fortun to members of the media and we order
her to pay a FINE of Twenty Thousand Pesos (P20,000).
SO ORDERED.

Esmael Mangudadatu, Dennis Ayon, Nenita and Ma. Gemma Oquendo

Respondents, while admitting that they were some of the complainants in the disbarment complaint
against petitioner, alleged that there was no proof that they were the ones who disseminated the
disbarment complaint. Indeed, petitioner failed to substantiate his allegation that Mangudadatu, Ayon,
Nenita, and Gemma were the ones who caused the publication of the disbarment complaint against him.
There was nothing in the records that would show that Mangudadatu, Ayon, Nenita, and Gemma
distributed or had a hand in the distribution of the disbarment complaint against petitioner.

Melinda Quintos De Jesus, Reynaldo Hulog, Redmond Batario, Malou Mangahas, and Atty. Prima
Jesusa B. Quinsayas

Respondents De Jesus, Hulog, Batario, Mangahas, and Atty. Quinsayas alleged that petitioner was not
able to establish the posting and publication of the articles about the disbarment complaint, and that
assuming the posting and publication had been established, petitioner failed to support his allegation
that they actively disseminated the details of the disbarment complaint. They further alleged that they
did not cause the publication of the news articles and thus, they did not violate the rule on privacy and
confidentiality of disbarment proceedings.

Indeed, petitioner failed to prove that, except for Atty. Quinsayas, the other respondents, namely De
Jesus, Hulog, Batario, Mangahas, and even Gozo, who did not file his separate comment, had a hand in
the dissemination and publication of the disbarment complaint against him. It would appear that only
Atty. Quinsayas was responsible for the distribution of copies of the disbarment complaint. In its
Comment, GMA Network stated that the publication "had already been done and completed when
copies of the complaint for disbarment were distributed by one of the disbarment complainants, Atty.
Prima Quinsayas x x x."26 Dedace also stated in her Comment that "Atty. Quinsayas gave copies of the
disbarment complaint against Atty. Fortun and she received one."27

Atty. Quinsayas is bound by Section 18, Rule 139-B of the Rules of Court both as a complainant in the
disbarment case against petitioner and as a lawyer. As a lawyer and an officer of the Court, Atty.
Quinsayas is familiar with the confidential nature of disbarment proceedings. However, instead of
preserving its confidentiality, Atty. Quinsayas disseminated copies of the disbarment complaint against
petitioner to members of the media which act constitutes contempt of court. In Relativo v. De Leon,28 the
Court ruled that the premature disclosure by publication of the filing and pendency of disbarment
proceedings is a violation of the confidentiality rule.29 In that case, Atty. Relativo, the complainant in a
disbarment case, caused the publication in newspapers of statements regarding the filing and pendency
of the disbarment proceedings. The Court found him guilty of contempt.

Indirect contempt against a Regional Trial Court or a court of equivalent or higher rank is punishable by a
fine not exceeding P30,000 or imprisonment not exceeding six months or both.30 Atty. Quinsayas acted
wrongly in setting aside the confidentiality rule which every lawyer and member of the legal profession
should know. Hence, we deem it proper to impose on her a fine of Twenty Thousand Pesos (P20,000).
 113

EN BANC However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
G.R. No. 173034 October 9, 2007

The main issue raised in the petition is whether respondents officers of the DOH acted without or in
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in
vs.
violation of the provisions of the Constitution in promulgating the RIRR.3
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
GAKO,respondents. implementing the questioned RIRR.

DECISION After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007.
The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
AUSTRIA-MARTINEZ, J.:
The Court hereby sets the following issues:
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's
milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. 1. Whether or not petitioner is a real party-in-interest;
The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk.
But how should this end be attained?
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go beyond the law it is supposed to implement. 2.2 Whether pertinent international agreements1 entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said executive 2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause
agency.1 and are in restraint of trade; and

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by 2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
virtue of the legislative powers granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the 1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that (WHA) Resolutions.
breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition
and health claims are not permitted for breastmilk substitutes.
The parties filed their respective memoranda.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child The petition is partly imbued with merit.
mortality, and ensure that all segments of society, specially parents and children, are informed of the
advantages of breastfeeding. On the issue of petitioner's standing

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006. With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the
Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members.
This view fuses the legal identity of an association with that of its members. An association
has standing to file suit for its workers despite its lack of direct interest if its members are
affected by the action. An organization has standing to assert the concerns of its
constituents.
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to
act as the representative of any individual, company, entity or association on matters related
to the manpower recruitment industry, and to perform other acts and activities necessary to
accomplish the purposes embodied therein. The respondent is, thus, the appropriate party
to assert the rights of its members, because it and its members are in every practical sense
identical. x x x The respondent [association] is but the medium through which its individual
members seek to make more effective the expression of their voices and the redress of
their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an
association has the legal personality to represent its members because the results of the case will affect
their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed "to represent directly or through approved representatives the
pharmaceutical and health care industry before the Philippine Government and any of its agencies, the
medical professions and the general public."8 Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical
and health care industry. Petitioner is duly authorized9 to take the appropriate course of action to bring
to the attention of government agencies and the courts any grievance suffered by its members which are
directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to
represent the entire industry, would be remiss in its duties if it fails to act on governmental action that
would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner,
whose legal identity is deemed fused with its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part
of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending
and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only
the Milk Code but also various international instruments10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social
and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against
Women, only provide in general terms that steps must be taken by State Parties to diminish infant and
child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being
of families, and ensure that women are provided with services and nutrition in connection with
114
pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the
ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.11 The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of
the Constitution which provides that "[n]o treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties or
conventional international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-
thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law
through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of
law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point
that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms
of promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
(Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element known

as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a
rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity,18 a person's right to life, liberty and due process,19 and pacta
sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been
depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source of
international law because they have the "character of jus rationale" and are "valid through all kinds of
human societies."(Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law because they are "basic to
legal systems generally" and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal systems. If there should
be doubt or disagreement, one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why they behave the way
they do.
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider
it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.22(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?
115
The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the 1946
WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the power to
adopt regulations concerning "advertising and labeling of biological, pharmaceutical and similar products
moving in international commerce,"27and to "make recommendations to members with respect to any
matter within the competence of the Organization."28 The legal effect of its regulations, as opposed to
recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with
respect to any matter within the competence of the Organization. A two-thirds vote of the
Health Assembly shall be required for the adoption of such conventions or agreements,
which shall come into force for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption
by the Health Assembly of a convention or agreement, take action relative to the acceptance
of such convention or agreement. Each Member shall notify the Director-General of the
action taken, and if it does not accept such convention or agreement within the time limit, it
will furnish a statement of the reasons for non-acceptance. In case of acceptance, each
Member agrees to make an annual report to the Director-General in accordance with Chapter
XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of death
and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce; (e) advertising and
labeling of biological, pharmaceutical and similar products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except for
such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members
with respect to any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come
into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally
not binding, but they "carry moral and political weight, as they constitute the judgment on a health issue
of the collective membership of the highest international body in the field of health."29 Even the ICMBS
itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously recommended
to the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt
the code in the form of a recommendation rather than a regulation. x x x (Emphasis
supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member
states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what
has been done with the ICMBS whereby the legislature enacted most of the provisions into law which
is the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and
practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of
the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-binding
norms, principles, and practices that influence state behavior.33 Certain declarations and resolutions of
the UN General Assembly fall under this category.34 The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the
mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid
means of norm creation, in order "to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40
116
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in international
relations. International lawyers typically distinguish binding rules of international law-
"hard law"-from non-binding norms, principles, and practices that influence state behavior-
"soft law." WHO has during its existence generated many soft law norms, creating a "soft
law regime" in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These resolutions
clearly define WHO member states' normative duty to cooperate fully with other countries
and with WHO in connection with infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty
is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on infectious disease controls is in
a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice on
infectious disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to
address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003
and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and
agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said resolutions
had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to comply with
such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by member
states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law enacted by the legislature.
 117

Second, the Court will determine whether the DOH may implement the provisions of the WHA provided, there is a need to protect to ensure the provision of safe and
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the and promote breastfeeding and to adequate nutrition for infants and young
absence of a domestic law. inform the public about the proper use children by the promotion, protection and
of breastmilk substitutes and support of breastfeeding and by ensuring
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH supplements and related products the proper use of breastmilk substitutes,
shall define the national health policy and implement a national health plan within the framework of through adequate, consistent and breastmilk supplements and related
the government's general policies and plans, and issue orders and regulations concerning the objective information and appropriate products when these are medically
implementation of established health policies. regulation of the marketing and indicated and only when necessary, on the
distribution of the said substitutes, basis of adequate information and
supplements and related products; through appropriate marketing and
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of distribution.
breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national
health policy. SECTION 4(e). "Infant" means a person
falling within the age bracket of 0-12 Section 5(ff). "Young Child" means a
months. person from the age of more than twelve
Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. (12) months up to the age of three (3)
2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy years (36 months).
guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six months; (3) micronutrient 2. The Milk Code recognizes that infant formula may be a proper and possible substitute for
supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants
in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk":
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such
health policy, the advertisement or promotion of breastmilk substitutes should be absolutely MILK CODE RIRR
prohibited.
WHEREAS, in order to ensure that safe and adequate Section 4. Declaration of
nutrition for infants is provided, there is a need to Principles – The following
The national policy of protection, promotion and support of breastfeeding cannot automatically be protect and promote breastfeeding and to inform the are the underlying
equated with a total ban on advertising for breastmilk substitutes. public about the proper use of breastmilk substitutes principles from which the
and supplements and related products through revised rules and
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and adequate, consistent and objective information and regulations are premised
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said appropriate regulation of the marketing and upon:
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a distribution of the said substitutes, supplements and
law amending the Milk Code passed by the constitutionally authorized branch of government, the related products;
a. Exclusive breastfeeding is
legislature. for infants from 0 to six (6)
months.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR. b. There is no substitute or
replacement for
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of breastmilk.
the Milk Code.
3. The Milk Code only regulates and does not impose unreasonable requirements for
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following: advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its
promotion of products within the scope of the Code, is vague:
coverage to "young children" or those from ages two years old and beyond:

MILK CODE RIRR

MILK CODE RIRR
SECTION 6. The General Public and Section 4. Declaration of Principles – The
WHEREAS, in order to ensure that safe Section 2. Purpose – These Revised Rules
following are the underlying principles
and adequate nutrition for infants is and Regulations are hereby promulgated
from which the revised rules and

Mothers. –
(a) No advertising, promotion or other
marketing materials, whether written,
audio or visual, for products within the
scope of this Code shall be printed,
published, distributed, exhibited and
broadcast unless such materials are
duly authorized and approved by an
inter-agency committee created
herein pursuant to the applicable
standards provided for in this Code.
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-
ships of infant formula, breastmilk
substitutes and other related products are
prohibited.
Section 11. Prohibition – No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and young
children up to twenty-four (24)
months, shall be allowed, because they
tend to convey or give subliminal messages
or impressions that undermine breastmilk
and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or
replacements, as well as related products
covered within the scope of this Code.
Section 13. "Total Effect" - Promotion of
products within the scope of this Code
must be objective and should not equate
or make the product appear to be as good
or equal to breastmilk or breastfeeding in
the advertising concept. It must not in any
case undermine breastmilk or
breastfeeding. The "total effect" should
not directly or indirectly suggest that
buying their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts, pictures, illustrations or
information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use of
breastmilk substitutes and milk
supplements. In this connection, no
118
pictures of babies and children together
with their mothers, fathers, siblings,
grandparents, other relatives or caregivers
(or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;
b. The term "humanized," "maternalized,"
"close to mother's milk" or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims
for products within the scope of the Code
are absolutely prohibited. For this purpose,
any phrase or words that connotes to
increase emotional, intellectual abilities of
the infant and young child and other like
phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE RIRR
SECTION 10. Containers/Label. – Section 26. Content – Each
container/label shall contain such
message, in both Filipino and English
(a) Containers and/or labels shall be
languages, and which message cannot
designed to provide the necessary
be readily separated therefrom,
information about the appropriate use of
relative the following points:
the products, and in such a way as not to
discourage breastfeeding.
(a) The words or phrase "Important
Notice" or "Government Warning" or
(b) Each container shall have a clear,
their equivalent;
conspicuous and easily readable and
understandable message in Pilipino or
English printed on it, or on a label, which (b) A statement of the superiority of
message can not readily become breastfeeding;
separated from it, and which shall include
the following points:
(c) A statement that there is no
substitute for breastmilk;
(i) the words "Important Notice" or their
equivalent;
(d) A statement that the product shall
be used only on the advice of a health
(ii) a statement of the superiority of worker as to the need for its use and
 119

breastfeeding; the proper methods of use; MILK CODE RIRR

(iii) a statement that the product shall be (e) Instructions for appropriate
used only on the advice of a health worker prepara-tion, and a warning against the
as to the need for its use and the proper health hazards of inappropriate
methods of use; and preparation; and
(iv) instructions for appropriate (f) The health hazards of unnecessary
preparation, and a warning against the or improper use of infant formula and
health hazards of inappropriate other related products including
preparation. information that powdered infant
formula may contain pathogenic
microorganisms and must be prepared
and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
MILK CODE RIRR
SECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
(b) No facility of the health care
involved in any activity on breastfeeding
system shall be used for the
promotion, education and production of
purpose of promoting infant
Information, Education and Communication
formula or other products within
(IEC) materials on breastfeeding, holding of or
the scope of this Code. This Code
participating as speakers in classes or seminars
does not, however, preclude the
for women and children activities and to avoid
dissemination of information to
the use of these venues to market their brands
health professionals as provided
or company names.
in Section 8(b).
SECTION 8. Health Workers – Section 4. Declaration of Principles –
(e) Manufacturers and
distributors of products within
the scope of this Code may
assist in the research,
scholarships and continuing
education, of health
professionals, in accordance
with the rules and regulations
promulgated by the Ministry
of Health.
The following are the underlying principles from
which the revised rules and regulations are
premised upon:
i. Milk companies, and their
representatives, should not form part of any
policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the Code
shall be allowed to conduct or be involved in any
activity on breastfeeding promotion, education
and production of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or participating as
speakers in classes or seminars for women and
children activitiesand to avoid the use of these
venues to market their brands or company names.
SECTION 32. Primary Responsibility of Health
Workers - It is the primary responsibility of the
health workers to promote, protect and support
breastfeeding and appropriate infant and young
child feeding. Part of this responsibility is to
continuously update their knowledge and skills on
breastfeeding. No assistance, support, logistics or
training from milk companies shall be permitted.

SECTION 16. All health and nutrition claims for

SECTION 8. Health Workers. -
products within the scope of the Code are 7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
absolutely prohibited. For this purpose, any
(b) Information provided by phrase or words that connotes to increase
manufacturers and distributors to emotional, intellectual abilities of the infant MILK CODE RIRR
health professionals regarding and young child and other like phrases shall not SECTION 6. The General Section 51. Donations Within the Scope of This
products within the scope of this be allowed. Public and Mothers. – Code - Donations of products, materials, defined
Code shall be restricted and covered under the Milk Code and these
to scientific and factual implementing rules and regulations, shall be strictly
(f) Nothing herein contained
matters and such information prohibited.
shall prevent donations from
shall not imply or create a belief manufacturers and
that bottle-feeding is equivalent distributors of products within Section 52. Other Donations By Milk Companies
or superior to breastfeeding. It the scope of this Code upon Not Covered by this Code. - Donations of products,
shall also include the information request by or with the equipments, and the like, not otherwise falling
specified in Section 5(b). approval of the Ministry of within the scope of this Code or these Rules, given
Health. by milk companies and their agents,
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research representatives, whether in kind or in cash, may
and continuing education of health professionals; RIRR absolutely forbids the same. only be coursed through the Inter Agency

Committee (IAC), which shall determine whether
such donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK RIRR
CODE
Section 46. Administrative Sanctions. – The following administrative
sanctions shall be imposed upon any person, juridical or natural, found to
have violated the provisions of the Code and its implementing Rules and
Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a minimum of Ten Thousand
(P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the
gravity and extent of the violation, including the recall of the offending
product;
c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos,
depending on the gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and suspension of the
Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine of a minimum of Two Hundred
Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos,
depending on the gravity and extent of the violation; and in addition
thereto, the recall of the product, revocation of the CPR, suspension of the
License to Operate (LTO) for one year;
e) 5th and succeeding repeated violations – Administrative Fine of One
Million (P1,000,000.00) Pesos, the recall of the offending product,
cancellation of the CPR, revocation of the License to Operate (LTO) of the
company concerned, including the blacklisting of the company to be
furnished the Department of Budget and Management (DBM) and the
Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos
per day shall be made for every day the violation continues after having
received the order from the IAC or other such appropriate body, notifying
and penalizing the company for the infraction.
For purposes of determining whether or not there is "repeated" violation,
each product violation belonging or owned by a company, including those
of their subsidiaries, are deemed to be violations of the concerned milk
company and shall not be based on the specific violating product alone.
120
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months
old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other milk
products, foods and beverages, including bottle-fed complementary foods, when marketed or
otherwise represented to be suitable, with or without modification, for use as a partial or
total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food,
and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal
nutritional requirements of infants up to between four to six months of age, and adapted to their
physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to "any
food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An
infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of
this group of infants or children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being
marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not
suitable for that purpose." This section conspicuously lacks reference to any particular age-group of
children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12
months. In other words, breastmilk substitutes may also be intended for young children more than 12
months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and
promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by
children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule should
not be studied as detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts and in order to produce a harmonious whole."
 121

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of (1) To promulgate such rules and regulations as are necessary or proper for the
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR implementation of this Code and the accomplishment of its purposes and
also states that information and educational materials should include information on the proper use of objectives.
infant formula when the use thereof is needed.
(4) To exercise such other powers and functions as may be necessary for or
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk incidental to the attainment of the purposes and objectives of this Code.
substitutes may be proper.
SECTION 5. Information and Education –
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with
each other.
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR responsibility shall cover the planning, provision, design and dissemination of information,
are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the and the control thereof, on infant nutrition. (Emphasis supplied)
DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in particular under
the Milk Code.
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis-
à-visbreastmilk substitutes, supplement and related products, in the following manner:
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter
SECTION 5. x x x
precludes the need to further discuss it..48 However, health information, particularly advertising materials
on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area
for regulation by the DOH.49 (b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
dissemination of hygienic information among the people and especially the inculcation of knowledge as
proper use of infant formula, whether manufactured industrially or home-prepared. When
to the proper care of infants and the methods of preventing and combating dangerous communicable
such materials contain information about the use of infant formula, they shall include the
diseases."
social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy infant formula and other breastmilk substitutes. Such materials shall not use any picture or
pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and promote the text which may idealize the use of breastmilk substitutes.
right to health of the people and instill health consciousness among them."52 To that end, it was granted
under Section 3 of the Administrative Code the power to "(6) propagate health information and educate
SECTION 8. Health Workers –
the population on important health, medical and environmental matters which have health
implications."53
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters,
When it comes to information regarding nutrition of infants and young children, however, the Milk Code
and such information shall not imply or create a belief that bottlefeeding is equivalent or
specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that
superior to breastfeeding. It shall also include the information specified in Section 5(b).
there is adequate, consistent and objective information on breastfeeding and use of breastmilk
substitutes, supplements and related products; and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit: SECTION 10. Containers/Label –

SECTION 12. Implementation and Monitoring –
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have
the following powers and functions:
(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)

The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information that
would reach pregnant women, mothers of infants, and health professionals and workers in the health
care system is restricted to scientific and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding
breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass
the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the
Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution
of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision
of safe and adequate nutrition for infants by the protection and promotion of
breastfeeding and by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis of adequate
information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices
related to breastmilk substitutes, including infant formula, and to information concerning
their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or improper
use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and
examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding;
and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
122
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling
and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a
statement that powdered infant formula may contain pathogenic microorganisms and must be prepared
and used appropriately. Section 1657of the RIRR prohibits all health and nutrition claims for products
within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the
infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to
wit:
SECTION 8. Health workers -
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters,
and such information shall notimply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that
there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such
information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive
application of Section 8(b) will result in the absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and
yet be allowed to display on the containers and labels of their products the exact opposite message. That
askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by
mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the
same time giving the government control over planning, provision, design, and dissemination of
information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is
not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and
deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 260 of
the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of
the Milk Code which reads:
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
 123

include clear information on all the following points: x x x (5) where needed, the proper use of
Minister of Justice ------------------- Member
infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and, in Minister of Social Services and Development ------------------- Member
particular, the health hazards of unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes. (Emphasis supplied) The members may designate their duly authorized representative to every meeting of the
Committee.

The label of a product contains information about said product intended for the buyers thereof. The
The Committee shall have the following powers and functions:
buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair
warning about the likelihood of pathogenic microorganisms being present in infant formula and other
related products when these are prepared and used inappropriately. (1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula (2) To approve or disapprove, delete objectionable portions from and prohibit the
that eliminates all forms of contamination.62 printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic microorganisms is in
accordance with Section 5(b) of the Milk Code. (3) To prescribe the internal and operational procedure for the exercise of its
powers and functions as well as the performance of its duties and responsibilities;
and
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner. (4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
In furtherance of Section 6(a) of the Milk Code, to wit:
However, Section 11 of the RIRR, to wit:
SECTION 6. The General Public and Mothers. –
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials
and activities for breastmilk substitutes intended for infants and young children up to twenty-
(a) No advertising, promotion or other marketing materials, whether written, audio or visual,
four (24) months, shall be allowed, because they tend to convey or give subliminal messages
for products within the scope of this Code shall be printed, published, distributed, exhibited
or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
and broadcast unless such materials are duly authorized and approved by an inter-agency
breastmilk substitutes and/or replacements, as well as related products covered within the
committee created herein pursuant to the applicable standards provided for in this Code.
scope of this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an
IAC, thus: prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:

SECTION 12. Implementation and Monitoring -

SECTION 4. Declaration of Principles –

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
following members is hereby created:
other related products are prohibited.

Minister of Health ------------------- Chairman The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority
given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.
Minister of Trade and Industry ------------------- Member
 124

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 ASSOCIATE JUSTICE NAZARIO: But, would you nevertheless agree that there is an absolute ban on
thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to advertising of breastmilk substitutes intended for children two (2) years old and younger?
dissemination.
SOLICITOR GENERAL DEVANADERA: It's not an absolute ban, Your Honor, because we have the Inter-
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during Agency Committee that can evaluate some advertising and promotional materials, subject to the
the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually standards that we have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
operational, viz:
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
SOLICITOR GENERAL DEVANADERA: x x x Now, the crux of the matter that is being questioned by particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee has
Petitioner is whether or not there is an absolute prohibition on advertising making AO 2006-12 that power to evaluate promotional materials, Your Honor.
unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition because
Section 11 while it states and it is entitled prohibition it states that no advertising, promotion,
ASSOCIATE JUSTICE NAZARIO: So in short, will you please clarify there's no absolute ban on
sponsorship or marketing materials and activities for breast milk substitutes intended for infants and
advertisement regarding milk substitute regarding infants two (2) years below?
young children up to 24 months shall be allowed because this is the standard they tend to convey or give
subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
SOLICITOR GENERAL DEVANADERA: We can proudly say that the general rule is that there is a
prohibition, however, we take exceptions and standards have been set. One of which is that, the Inter-
We have to read Section 11 together with the other Sections because the other Section, Section 12,
Agency Committee can allow if the advertising and promotions will not undermine breastmilk and
provides for the inter agency committee that is empowered to process and evaluate all the advertising
breastfeeding, Your Honor.63
and promotion materials.

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the
advertisement and the promotions of breastfeeding milk substitutes.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval
or rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-
Code, said provision must be related to Section 6 thereof which in turn provides that the rules and
Agency Committee that processes and evaluates because there may be some information dissemination
regulations must be "pursuant to the applicable standards provided for in this Code." Said standards are
that are straight forward information dissemination. What the AO 2006 is trying to prevent is any
set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy
material that will undermine the practice of breastfeeding, Your Honor.
reference, are quoted hereunder:

ASSOCIATE JUSTICE SANTIAGO: Madam Solicitor General, under the Milk Code, which body has authority
or power to promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA: Your Honor, please, it is provided that the Inter-Agency Committee,
Your Honor.
ASSOCIATE JUSTICE SANTIAGO: x x x Don't you think that the Department of Health overstepped its rule
making authority when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA: Your Honor, please, first we would like to stress that there is no total
absolute ban. Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
SECTION 5. Information and Education –
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.

ASSOCIATE JUSTICE NAZARIO: x x x Did I hear you correctly, Madam Solicitor, that there is no absolute
SECTION 8. Health Workers. –
ban on advertising of breastmilk substitutes in the Revised Rules?

(b) Information provided by manufacturers and distributors to health professionals regarding

SOLICITOR GENERAL DEVANADERA: Yes, your Honor.
products within the scope of this Code shall be restricted to scientific and factual matters and

such information shall not imply or create a belief that bottle feeding is equivalent or superior
to breastfeeding. It shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health
worker as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of
the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional,
or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which
reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
125
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes,
supplements and other related products. It also sets a viable standard against which the IAC may screen
such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest and
welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds
that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the
Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of information to health
professionals but such information is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to
health professionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot be construed to
encompass even the dissemination of information to health professionals, as restricted by the Milk
Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of
the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in
relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of
any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds
nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk
Code, it is the DOH which shall be principally responsible for the implementation and enforcement of
the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to
be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies’
participation in any policymaking body in relation to the advancement of breastfeeding is in accord with
the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does not

pertain to research assistance to or the continuing education of health professionals; rather, it deals
with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to health
professionals; hence, petitioner's argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR provide
that research assistance for health workers and researchers may be allowed upon approval of an
ethics committee, and with certain disclosure requirements imposed on the milk company and on the
recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the DOH
under Section 8(e)74of the Milk Code, which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now
DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors of
breastmilk substitutes upon the request or with the approval of the DOH. The law does not proscribe
the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request
or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of
the RIRR which sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall determine
whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not
mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to
accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the
Milk Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the
Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring
difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the
Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to
impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the
power to review on appeal the order or decision of the CAA and to determine whether to impose, remit,
mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's
Resolution imposing administrative fines.
126
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in the
circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638
to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose
such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its
authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore,
null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk
Code authorizes the DOH to "cause the prosecution of the violators of this Code and other pertinent laws
on products covered by this Code." Section 13 of the Milk Code provides for the penalties to be imposed
on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor
more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by
a juridical person, the chairman of the Board of Directors, the president, general manager, or
the partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker,
distributor, manufacturer, or marketing firm or personnel for the practice of their profession
or occupation, or for the pursuit of their business, may, upon recommendation of the
Ministry of Health, be suspended or revoked in the event of repeated violations of this Code,
or of the rules and regulations issued pursuant to this Code. (Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is
frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power
to make rules and regulations which results in delegated legislation that is within the confines of the
granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the power to amend, revise,
 127

alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting replacement, or by any other description of such nature, including their representatives who
the details and manner by which they are to implement the provisions of a law,80 in order to make it promote or otherwise advance their commercial interests in marketing those products;
more responsive to the times. Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed or modified.
On the other hand, Section 4 of the Milk Code provides:

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and
(d) "Distributor" means a person, corporation or any other entity in the public or private
in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are
sector engaged in the business (whether directly or indirectly) of marketing at the wholesale
in consonance with the Milk Code.
or retail level a product within the scope of this Code. A "primary distributor" is a
manufacturer's sales agent, representative, national distributor or broker.
Lastly, petitioner makes a "catch-all" allegation that:
(j) "Manufacturer" means a corporation or other entity in the public or private sector
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary engaged in the business or function (whether directly or indirectly or through an agent or and
and oppressive, and is offensive to the due process clause of the Constitution, insofar as the entity controlled by or under contract with it) of manufacturing a products within the scope
same is in restraint of trade and because a provision therein is inadequate to provide the of this Code.
public with a comprehensible basis to determine whether or not they have committed a
violation.81 (Emphasis supplied)
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities
defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enumerated
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that in Section 5(w) the products manufactured or distributed by an entity that would qualify it as a "milk
suppress the trade of milk and, thus, violate the due process clause of the Constitution. company," whereas in the Milk Code, what is used is the phrase "products within the scope of this
Code." Those are the only differences between the definitions given in the Milk Code and the definition
as re-stated in the RIRR.
The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus: Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities.
The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer"
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
provided for under the Milk Code are practically the same.
Coconut Authority, despite the fact that "our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare." There can be no question that the unregulated The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about
use or proliferation of pesticides would be hazardous to our environment. Thus, in the any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk
aforecited case, the Court declared that "free enterprise does not call for removal of substitutes, as defined under the Milk Code.
‘protective regulations’." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
trade. [Emphasis and underscoring supplied]
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which
affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of
In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in any trade nor are they violative of the due process clause of the Constitution.
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No.
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the
2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to
Health and respondents are PROHIBITED from implementing said provisions.
demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for being
in restraint of trade.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive.
Said section provides for the definition of the term "milk company," to wit:
SO ORDERED.
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or

Facts:
Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51
(Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory
Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and Breastmilk
Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA
also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should
be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the
DOH issued the assailed RIRR.
Issue: Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the
land and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l
agreements
MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion
amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR.
Held:
Sub-issue:
Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru
constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e
treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all
members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into
domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim
reproduction of ICBMS.
No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA
resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l rule to be
considered as customary law, it must be established that such rule is being followed by states because
they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although
signed by most of the member states, were enforced or practiced by at least a majority of member
states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk
Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months,
breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been
adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of
how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW – non-
binding norms, principles and practices that influence state behavior. Soft law is not part of int’l law.
Main issue:
Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) ->advertising,
promotions of formula are prohibited,
Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo
to 24 months
And Sec 46 -> sanctions for advertising .
These provisions are declared null and void. The DOH and respondents are prohibited from
implementing said provisions.
128
FACTS:
On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino by
virtue of the legislative powers granted to the president under the Freedom Constitution. The Milk Code
states that the law seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes. the Philippines ratified the International Convention on the Rights
of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures
to diminish infant and child mortality, and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding. the DOH issued RIRR which was to take effect
on July 7, 2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Revised
Implementing Rules and Regulations of The “Milk Code,” assailing that the RIRR was going beyond the
provisions of the Milk Code, thereby amending and expanding the coverage of said law.
ISSUE: Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR
RULING:
The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of Administrative Order
No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions. The international
instruments pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law of the
land and therefore the DOH may implement them through the RIRR. Customary international law is
deemed incorporated into our domestic system. Custom or customary international law means “a
general and consistent practice of states followed by them from a sense of legal obligation (opinio juris).
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. “Generally
accepted principles of international law” refers to norms of general or customary international law which
are binding on all states. The Milk Code is a verbatim reproduction of the (ICMBS), but it did not prohibit
advertising or other forms of promotion to the general public of products. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC). In this regard, the
WHA Resolutions adopting the ICMBS are merely recommendatory and legally non-binding. This may
constitute “soft law” or non-binding norms, principles and practices that influence state behavior.
Respondents have not presented any evidence to prove that the WHA Resolutions, although signed by
most of the member states, were in fact enforced or practiced by at least a majority of the member
states and obligatory in nature. The provisions of the WHA Resolutions cannot be considered as part of
the law of the land that can be implemented by executive agencies without the need of a law enacted by
the legislature. On the other hand, the petitioners also failed to explain and prove by competent
evidence just exactly how such protective regulation would result in the restraint of trade. Since all the
regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the
Court sees no harm in the RIRR. Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are
in consonance with the objective, purpose and intent of the Milk Code.

SUPREME COURT OF THE UNITED STATES
PLEASANT GROVE CITY, UTAH, et al. v. SUMMUM
Certiorari to the United States Court of Appeals for the Tenth Circuit
Decided February 25, 2009
JUSTICE ALITO delivered the opinion of the Court.
This case presents the question whether the Free Speech Clause of the First Amendment entitles a
private group to insist that a municipality permit it to place a permanent monument in a city park in
which other donated monuments were previously erected. The Court of Appeals held that the
municipality was required to accept the monument because a public park is a traditional public forum.
We conclude, however, that although a park is a traditional public forum for speeches and other
transitory expressive acts, the display of a permanent monument in a public park is not a form of
expression to which forum analysis applies. Instead, the placement of a permanent monument in a
public park is best viewed as a form of government speech and is therefore not subject to scrutiny under
the Free Speech Clause.
I. A
Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of Pleasant Grove City (or
City) in Utah. The Park currently contains 15 permanent displays, at least 11 of which were donated by
private groups or individuals. These include an historic granary, a wishing well, the City's first fire station,
a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of
Eagles in 1971.
Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake City,
Utah. On two separate occasions in 2003, Summum's president wrote a letter to the City's mayor
requesting permission to erect a "stone monument," which would contain "the Seven Aphorisms of
SUMMUM" 1 and be similar in size and nature to the Ten Commandments monument. The City denied
the requests and explained that its practice was to limit monuments in the Park to those that "either (1)
directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to
the Pleasant Grove community." The following year, the City passed a resolution putting this policy into
writing. The resolution also mentioned other criteria, such as safety and esthetics.
In May 2005, respondent's president again wrote to the mayor asking to erect a monument, but the
letter did not describe the monument, its historical significance, or Summum's connection to the
community. The city council rejected this request.
B
In 2005, respondent filed this action against the City and various local officials (petitioners), asserting,
among other claims, that petitioners had violated the Free Speech Clause of the First Amendment by
accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms
monument....
II
No prior decision of this Court has addressed the application of the Free Speech Clause to a government
entity's acceptance of privately donated, permanent monuments for installation in a public park, and the
parties disagree sharply about the line of precedents that governs this situation. Petitioners contend that
the pertinent cases are those concerning government speech. Respondent, on the other hand, agrees
with the Court of Appeals panel that the applicable cases are those that analyze private speech in a
public forum. The parties' fundamental disagreement thus centers on the nature of petitioners' conduct
when they permitted privately donated monuments to be erected in Pioneer Park. Were petitioners
engaging in their own expressive conduct? Or were they providing a forum for private speech?
129
A
If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has no
application. The Free Speech Clause restricts government regulation of private speech; it does not
regulate government speech. A government entity has the right to "speak for itself." "[I]t is entitled to
say what it wishes," and to select the views that it wants to express.
Indeed, it is not easy to imagine how government could function if it lacked this freedom. "If every
citizen were to have a right to insist that no one paid by public funds express a view with which he
disagreed, debate over issues of great concern to the public would be limited to those in the private
sector, and the process of government as we know it radically transformed."
A government entity may exercise this same freedom to express its views when it receives assistance
from private sources for the purpose of delivering a government-controlled message.
This does not mean that there are no restraints on government speech. For example, government
speech must comport with the Establishment Clause. The involvement of public officials in advocacy may
be limited by law, regulation, or practice. And of course, a government entity is ultimately "accountable
to the electorate and the political process for its advocacy."
B
While government speech is not restricted by the Free Speech Clause, the government does not have a
free hand to regulate private speech on government property. This Court long ago recognized that
members of the public retain strong free speech rights when they venture into public streets and parks,
"which '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.' " In order to preserve this freedom, government entities are strictly limited in their ability to
regulate private speech in such "traditional public fora." Reasonable time, place, and manner restrictions
are allowed, but any restriction based on the content of the speech must satisfy strict scrutiny, that is,
the restriction must be narrowly tailored to serve a compelling government interest, and restrictions
based on viewpoint are prohibited.
With the concept of the traditional public forum as a starting point, this Court has recognized that
members of the public have free speech rights on other types of government property and in certain
other government programs that share essential attributes of a traditional public forum. We have held
that a government entity may create "a designated public forum" if government property that has not
traditionally been regarded as a public forum is intentionally opened up for that purpose. Government
restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions
in a traditional public forum.
The Court has also held that a government entity may create a forum that is limited to use by certain
groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity
may impose restrictions on speech that are reasonable and viewpoint-neutral.
III
There may be situations in which it is difficult to tell whether a government entity is speaking on its own
behalf or is providing a forum for private speech, but this case does not present such a situation.
Permanent monuments displayed on public property typically represent government speech.
Governments have long used monuments to speak to the public. Since ancient times, kings, emperors,
and other rulers have erected statues of themselves to remind their subjects of their authority and
power. Triumphal arches, columns, and other monuments have been built to commemorate military
victories and sacrifices and other events of civic importance. A monument, by definition, is a structure
that is designed as a means of expression. When a government entity arranges for the construction of a
monument, it does so because it wishes to convey some thought or instill some feeling in those who see
 130

the structure. Neither the Court of Appeals nor respondent disputes the obvious proposition that a B
monument that is commissioned and financed by a government body for placement on public land
What respondent demands, however, is that the City "adopt" or "embrace" "the message" that it
constitutes government speech.
associates with the monument. Respondent seems to think that a monument can convey only one
Just as government-commissioned and government-financed monuments speak for the government, so "message"-which is, presumably, the message intended by the donor-and that, if a government entity
do privately financed and donated monuments that the government accepts and displays to the public that accepts a monument for placement on its property does not formally embrace that message, then
on government land. It certainly is not common for property owners to open up their property for the the government has not engaged in expressive conduct.
installation of permanent monuments that convey a message with which they do not wish to be
This argument fundamentally misunderstands the way monuments convey meaning. The meaning
associated. And because property owners typically do not permit the construction of such monuments
conveyed by a monument is generally not a simple one like " 'Beef. It's What's for Dinner.' Even when a
on their land, persons who observe donated monuments routinely-and reasonably-interpret them as
monument features the written word, the monument may be intended to be interpreted, and may in
conveying some message on the property owner's behalf. In this context, there is little chance that
fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by
observers will fail to appreciate the identity of the speaker. This is true whether the monument is located
the briefing in this case illustrate this phenomenon.
on private property or on public property, such as national, state, or city park land.
What, for example, is "the message" of the Greco-Roman mosaic of the word "Imagine" that was
We think it is fair to say that throughout our Nation's history, the general government practice with
donated to New York City's Central Park in memory of John Lennon? Some observers may "imagine" the
respect to donated monuments has been one of selective receptivity. A great many of the monuments
musical contributions that John Lennon would have made if he had not been killed. Others may think of
that adorn the Nation's public parks were financed with private funds or donated by private parties. Sites
the lyrics of the Lennon song that obviously inspired the mosaic and may "imagine" a world without
managed by the National Park Service contain thousands of privately designed or funded
religion, countries, possessions, greed, or hunger.
commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo Jima
monument), and the Vietnam Veterans Memorial. States and cities likewise have received thousands of ...Contrary to respondent's apparent belief, it frequently is not possible to identify a single "message"
donated monuments. that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a
government entity that accepts and displays such an object may be quite different from those of either
But while government entities regularly accept privately funded or donated monuments, they have
its creator or its donor. By accepting a privately donated monument and placing it on city property, a
exercised selectivity. An example discussed by the city of New York as amicus curiae is illustrative. In the
city engages in expressive conduct, but the intended and perceived significance of that conduct may not
wake of the controversy generated in 1876 when the city turned down a donated monument to honor
coincide with the thinking of the monument's donor or creator. Indeed, when a privately donated
Daniel Webster, the city adopted rules governing the acceptance of artwork for permanent placement in
memorial is funded by many small donations, the donors themselves may differ in their interpretation of
city parks, requiring, among other things, that "any proposed gift of art had to be viewed either in its
the monument's significance. By accepting such a monument, a government entity does not necessarily
finished condition or as a model before acceptance." Across the country, "municipalities generally
endorse the specific meaning that any particular donor sees in the monument....
exercise editorial control over donated monuments through prior submission requirements, design
input, requested modifications, written criteria, and legislative approvals of specific content proposals." C
Public parks are often closely identified in the public mind with the government unit that owns the land. Respondent compares the present case to Capitol Square Review and Advisory Bd. v. Pinette (1995), but
City parks-ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those in major that case involved a very different situation-a request by a private group, the Ku Klux Klan, to erect a
metropolises, like Central Park in New York City-commonly play an important role in defining the identity cross for a period of 16 days on public property that had been opened up for similar temporary displays,
that a city projects to its own residents and to the outside world. Accordingly, cities and other including a Christmas tree and a menorah. Although some public parks can accommodate and may be
jurisdictions take some care in accepting donated monuments. Government decisionmakers select the made generally available for temporary private displays, the same is rarely true for permanent
monuments that portray what they view as appropriate for the place in question, taking into account monuments.
such content-based factors as esthetics, history, and local culture. The monuments that are accepted,
To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a
therefore, are meant to convey and have the effect of conveying a government message, and they thus
permanent monument-for example, if a town created a monument on which all of its residents (or all
constitute government speech.
those meeting some other criterion) could place the name of a person to be honored or some other
IV. A private message. But as a general matter, forum analysis simply does not apply to the installation of
permanent monuments on public property.
In this case, it is clear that the monuments in Pleasant Grove's Pioneer Park represent government
speech. Although many of the monuments were not designed or built by the City and were donated in V
completed form by private entities, the City decided to accept those donations and to display them in
In sum, we hold that the City's decision to accept certain privately donated monuments while rejecting
the Park. Respondent does not claim that the City ever opened up the Park for the placement of
respondent's is best viewed as a form of government speech. As a result, the City's decision is not
whatever permanent monuments might be offered by private donors. Rather, the City has "effectively
subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore
controlled" the messages sent by the monuments in the Park by exercising "final approval authority"
reverse.
over their selection. The City has selected those monuments that it wants to display for the purpose of
presenting the image of the City that it wishes to project to all who frequent the Park; it has taken It is so ordered.
ownership of most of the monuments in the Park, including the Ten Commandments monument that is
1 Respondent's brief describes the church and the Seven Aphorisms as follows:
the focus of respondent's concern; and the City has now expressly set forth the criteria it will use in
making future selections. "The Summum church incorporates elements of Gnostic Christianity, teaching that spiritual knowledge is
experiential and that through devotion comes revelation, which 'modifies human perceptions, and

transfigures the individual.' See The Teachings of Summum are the Teachings of Gnostic Christianity,
http://www.summum.us/philosophy/ gnosticism.shtml (visited Aug. 15, 2008).
"Central to Summum religious belief and practice are the Seven Principles of Creation (the "Seven
Aphorisms"). According to Summum doctrine, the Seven Aphorisms were inscribed on the original
tablets handed down by God to Moses on Mount Sinai... . Because Moses believed that the Israelites
were not ready to receive the Aphorisms, he shared them only with a select group of people. In the
Summum Exodus account, Moses then destroyed the original tablets, traveled back to Mount Sinai, and
returned with a second set of tablets containing the Ten Commandments.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, concurring.
This case involves a property owner's rejection of an offer to place a permanent display on its land.
While I join the Court's persuasive opinion, I think the reasons justifying the city's refusal would have
been equally valid if its acceptance of the monument, instead of being characterized as "government
speech," had merely been deemed an implicit endorsement of the donor's message....
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
As framed and argued by the parties, this case presents a question under the Free Speech Clause of the
First Amendment. I agree with the Court's analysis of that question and join its opinion in full. But it is
also obvious that from the start, the case has been litigated in the shadow of the First Amendment's
Establishment Clause: the city wary of associating itself too closely with the Ten Commandments
monument displayed in the park, lest that be deemed a breach in the so-called "wall of separation
between church and State"; respondent exploiting that hesitation to argue that the monument is not
government speech because the city has not sufficiently "adopted" its message. Respondent menacingly
observed that while the city could have formally adopted the monument as its own, that "might of
course raise Establishment Clause issues."
The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into
the Establishment Clause fire. Contrary to respondent's intimations, there are very good reasons to be
confident that the park displays do not violate any part of the First Amendment.
In Van Orden v. Perry, 545 U. S. 677 (2005), this Court upheld against Establishment Clause challenge a
virtually identical Ten Commandments monument, donated by the very same organization (the Fraternal
Order of Eagles), which was displayed on the grounds surrounding the Texas State Capitol. Nothing in
that decision suggested that the outcome turned on a finding that the monument was only "private"
speech. To the contrary, all the Justices agreed that government speech was at issue, but the
Establishment Clause argument was nonetheless rejected. For the plurality, that was because the Ten
Commandments "have an undeniable historical meaning" in addition to their "religious significance,"
agreed that the monument conveyed a permissible secular message, as evidenced by its location in a
park that contained multiple monuments and historical markers; by the fact that it had been donated by
the Eagles "as part of that organization's efforts to combat juvenile delinquency"; and by the length of
time (40 years) for which the monument had gone unchallenged....
The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park's wishing
well, its historic granary-and, yes, even its Ten Commandments monument-without fear that they are
complicit in an establishment of religion.
JUSTICE BREYER, concurring.
I agree with the Court and join its opinion. I do so, however, on the understanding that the "government
speech" doctrine is a rule of thumb, not a rigid category. Were the City to discriminate in the selection of
permanent monuments on grounds unrelated to the display's theme, say solely on political grounds, its
action might well violate the First Amendment....
JUSTICE SOUTER, concurring in the judgment.
131
...To avoid relying on a per se rule to say when speech is governmental, the best approach that occurs to
me is to ask whether a reasonable and fully informed observer would understand the expression to be
government speech, as distinct from private speech the government chooses to oblige by allowing the
monument to be placed on public land. This reasonable observer test for governmental character is of a
piece with the one for spotting forbidden governmental endorsement of religion in the Establishment
Clause cases. The adoption of it would thus serve coherence within Establishment Clause law, and it
would make sense of our common understanding that some monuments on public land display religious
symbolism that clearly does not express a government's chosen views.
Facts of the case
Summum, a religious organization, sent a letter to the mayor of Pleasant Grove, Utah asking to place a
monument in one of the city's parks. Although the park already housed a monument to the Ten
Commandments, the mayor denied Summum's request because the monument did not "directly relate
to the history of Pleasant Grove." Summum filed suit against the city in federal court citing, among other
things, a violation of its First Amendment free speech rights. The U.S. District Court for the District of
Utah denied Summum's request for a preliminary injunction.
The U.S. Court of Appeals for the Tenth Circuit reversed the district court and granted Summum's
injunction request. The Tenth Circuit held that the park was in fact a "public" forum, not a non-public
forum as the district court had held. Furthermore, Summum demonstrated that it would suffer
irreparable harm if the injunction were to be denied, and the interests of the city did not outweigh this
potential harm. The injunction, according to the court, was also not against the public interest.
Question
Does a city's refusal to place a religious organization's monument in a public park violate that
organization's First Amendment free speech rights when the park already contains a monument from a
different religious group?
Conclusion
Sort: by seniority by ideology
No. The Supreme Court reversed the Tenth Circuit holding that the placement of a monument in a public
park is a form of government speech and therefore not subject to scrutiny under the Free Speech Clause
of the First Amendment. With Justice Samuel A. Alito writing for the majority and joined by Chief Justice
John G. Roberts and Justices John Paul Stevens, Antonin G. Scalia, Anthony M. Kennedy, Clarence
Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer, the Court reasoned that since Pleasant Grove City
had retained final authority over which monuments were displayed, the monuments represented an
expression of the city's viewpoints and thus government speech.
Justice Stevens, joined by Justice Ginsburg, wrote a separate concurring opinion that largely embraced
the majority's reasoning. Justice Scalia, joined by Justice Thomas, also wrote a separate concurring
opinion. Agreeing with the Court's reasoning, he also noted that there were likely no violations of the
Establishment Clause of the First Amendment on the part of Pleasant Grove City. He argued that displays
of the Ten Commandments had been construed by the Court as "having an undeniable historical
meaning" and thus did not attempt to establish a religion. Justice Breyer also wrote a separate
concurring opinion in which he noted that "government speech" should be considered a rule of thumb
and not a rigid category. He stated that sometimes the Court should ask "whether a government's
actions burdens speech disproportionately in light of the action's tendency to further a legitimate
government objective." Justice Souter also wrote separately, concurring in the judgment, but warning
that public monuments should not be considered government speech categorically.