Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondents.

SEPARATE CONCURRING OPINION

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice
Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press
release" dated 11 June 2005, warning radio and television stations against airing taped conversations allegedly between President
Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano) 1 under pain of
suspension or revocation of their airwave licenses.

The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential
elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr.
Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging"
the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a
press conference in Malacañang Palace, where he played before the presidential press corps two compact disc recordings of
conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the
contents of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyo’s after
all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes.4 Respondent Gonzalez
ordered the National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of
Republic Act No. 4200 or the Anti-Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the
suspension, revocation and/or cancellation of the licenses or authorizations" issued to them.5 On 14 June 2005, NTC officers met with
officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and
KBP issued a joint press statement expressing commitment to press freedom. 6

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of
the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents’ conduct violated freedom of expression
and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC
acted ultra vires when it warned radio and television stations against airing the Garci Tapes.

In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the
petition fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the
NTC's press release of 11 June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of
authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra
vires in issuing the warning to radio and television stations.

In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the
enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the
NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-
Wiretapping Law, making it a "cleverly disguised x x x gag order."

ISSUE
The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an
impermissible prior restraint on freedom of expression.

I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior
restraint on protected expression, and (3) enjoin the NTC from enforcing the same.

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the
right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the
government action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any
citizen must be allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital
public right that must be defended by everyone and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is of transcendental
importance that must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has
standing to raise an issue of transcendental importance to the nation,7 and petitioner in this present petition raises such issue.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable
condition8 to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom
of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political
issues. To survive, a free and democratic society must zealously safeguard freedom of expression.

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

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom
to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is
the free expression for the ideas we love, as well as the free expression for the ideas we hate. 9 Indeed, the function of freedom of
expression is to stir disputes:

[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions
and have profound unsettling effects as it presses for acceptance of an idea. 10

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression:

No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom
of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of
necessity.

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression,
namely: pornography,11 false or misleading advertisement,12 advocacy of imminent lawless action,13 and danger to national
security.14 All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication
Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not
countenance governmental control over the content of messages expressed by private individuals." 15

Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on
protected expression is unconstitutional without exception. A protected expression means what it says – it is absolutely protected
from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification
of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to
strict scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the
restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on
whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not
falling under any of the recognized categories of unprotected expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-
neutral restraint is a restraint which regulates the time, place or manner of the expression in public places 16 without any restraint on the
content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny.17

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A
content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of
validity and is thus enforceable subject to appeal to the courts.18 Courts will uphold time, place or manner restraints if they are content-
neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. 19

In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus,
submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for
classification and not for censoring any part of the content of the submitted materials.20 However, failure to submit such materials to the
review board may be penalized without regard to the content of the materials. 21 The review board has no power to reject the airing of
the submitted materials. The review board’s power is only to classify the materials, whether for general patronage, for adults only, or for
some other classification. The power to classify expressions applies only to movies and pre-taped television programs22 but not to live
television programs. Any classification of live television programs necessarily entails prior restraint on expression.

Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based23 since the restraint is imposed because of the content itself. In this jurisdiction, there are
currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading
advertisement as unprotected expression only in October 2007. 24

Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must
hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving
the constitutionality of the prior restraint.25

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression.26 The government action
will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the
prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment
also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the
public.

While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment,27 either
civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint, 28 but an aggrieved person can sue for
redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows
which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify
subsequent punishment of the perpetrator of such offensive shows. 29

Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent
punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to
the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus,
since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction,30 such
expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There
must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature
must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no
legal basis for imposing a prior restraint on such expression.

The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories
of unprotected expression – pornography,31 advocacy of imminent lawless action, and danger to national security - is the clear and
present danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the
State has a right and duty to prevent, and such danger must be grave and imminent. 33

Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like
threats of revoking licenses or withholding of benefits. 34 The impermissible pressures need not be embodied in a government agency
regulation, but may emanate from policies, advisories or conduct of officials of government agencies.
3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio
and television stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued
to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci
Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to radio and TV stations." Second, the Garci Tapes have not been authenticated, and subsequent investigation may
establish that the tapes contain false information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning:

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC
warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued
to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies
shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it
has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which
they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed
violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping
operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes
contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that
the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing
violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are
hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just
cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said
companies. (Boldfacing and underscoring supplied)

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior
restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci
Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of
grave and imminent character, that the State has a right and duty to prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of
the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the
Garci Tapes have not complained that the wire-tapping was without their consent, an essential element for violation of the Anti-
Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that played and released to media the Garci
Tapes containing the alleged "spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of
whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-
Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not
observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.36

The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or
willful misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes
misleading commercial advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected
expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring
the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive
claims to the public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial
advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a
prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful
misrepresentation." Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful
misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the
Garci Tapes. The NTC’s claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should
not be publicly aired, is an admission that the restraint is content-based.
5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of
unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it
exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of
voting in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is
indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process
is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of
protected expressions, political expression would occupy the highest rank, 38 and among different kinds of political expression, the
subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain
uninhibited, robust and wide open.

The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On
this ground alone, the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a
wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may
be subject to prior restraint. However, there is no claim here by respondents that the subject matter of the Garci Tapes involves national
security and publicly airing the tapes would endanger the security of the State. 39

The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes
because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of
expression.40 The only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the
Garci Tapes does not fall under any of these categories of unprotected expression.

The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public
concern. The Constitution guarantees the people’s right to information on matters of public concern. 41 The remedy of any person
aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of
the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law.

The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from
subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be
subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint
on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping
Law.

6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any
content-based censorship power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even
assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the
power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of
bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint.

Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is
constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression.
Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such
restraint is presumed unconstitutional at inception.

As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of
radio and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and
television stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast.

7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is
presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has
failed to meet this burden.

In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci
Tapes. The respondents claim that they merely "fairly warned" radio and television stations to observe the Anti-Wiretapping Law and
pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television
stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the
public airing of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the
violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent
a possible future violation of the Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law,
or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is
to allow prior restraint on all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of
sweeping and endless censorship on broadcast media.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible
pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press
release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television
stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of
their permits. The NTC threat is thus real and potent.

In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of
a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to
radio and television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a prior
restraint on constitutionally protected expression.

In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close down mass media
establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of
National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner:

Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael Defensor was quoted
as saying that such raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the
standards — and the standards are if they would contribute to instability in the government, or if they do not subscribe to what
is in General Order No. 5 and Proc. No. 1017 — we will recommend a 'takeover.'" National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration
of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage during times when the national security is
threatened.44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the
imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and
whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL." 45

The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of
licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior
restraint on protected expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before the American
Declaration of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty
of the press x x x consists in laying no previous restraints upon publication x x x." 47

Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real
and effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not
seek to advance a legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based
prior restraint on protected expression. This rule has no exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same.

ANTONIO T. CARPIO
Associate Justice
 EN BANC

G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

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

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body

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

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

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

The Issues

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

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

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:
 Mootness and Prematurity

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

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

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

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

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

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

Main Issue:

Validity of Conducting Exit Polls

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

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

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

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

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

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the
credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general
be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of
votes conducted by the Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the
Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on
the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

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

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

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

Limitations

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

In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such
freedoms, as follows:

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

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

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the
"clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree."32

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

Justification for a Restriction

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

To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:
 A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an
important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest.38

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

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

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It
has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order
to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far
outweigh them.

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

Comelec Ban on Exit Polling

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

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

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

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information
and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other factors on voters' choices.1âwphi1.nêt

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

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

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

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

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

Violation of Ballot Secrecy

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

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

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

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

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

Separate Opinions

KAPUNAN, J., dissenting opinion;

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declared
exit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, the
nullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes a mere academic
exercise in view of the premature nature of the issues and the lack of "concreteness" of the controversy. I wish however, to express my
thoughts on a few material points.

The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brews."1 While this has been the traditional approach, this rules does not apply where,
as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the
integrity of the elections. Thus, Mr. Justice Feliciano in National Press (NPC) v. Comelec2 wrote:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect
of supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation may result in some limitation of the right of free speech
and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the general, time honored one — that a statute is presumed to be
constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving
that assertion.3

The NPC decision holds that if the right to free speech collides with a norm of constitutional stature, 4 the rule on heavy presumption of
invalidity does not apply.

Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and to
secure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and peaceful elections. 5 This Constitutional provision
effectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted in the exercise of its
constitutionally mandated powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and present
danger test." As this Court, through Mr. Justice Mendoza, succinctly observed:

. . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed
out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for
free speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and guilty
conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional validity of law which, like
§11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-
and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular
hammer is all that is needed.6

On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll results will only be made public a day
after the elections, in order to allay fears of "trending," "bandwagon-effect" or disruption. This offers little comfort considering the state
of our country's electoral system. Unlike in other countries where voting and counting are computerized, our elections are characterized
by snail-paced counting. It is not infrequent that postponement, failure or annulment of elections occur in some areas designated as
election hot spots.7 Such being the case, exit poll results made public after the day of voting in the regular elections but before the
conduct of special elections in these areas may potentially pose the danger of "trending," "bandwagon-effect" and disruption of
elections.

In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in issuing the assailed temporary
restraining order stopping petitioner from conducting exit polls. I, therefore, vote to DENY the petition.

VITUG, J., separate opinion;

The instant petition, now technically moot, presents issues so significantly that a slights change of circumstances can have a decisive
effect on, and possibly spell a difference in, the final outcome of the case. I am not inclined to take the case in an academic fashion and
pass upon the views expressed by either party in preemptive judgment.

While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the concern of the Commission
on Elections, i.e., that the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot. The
Commission performs an indispensable task of ensuring free, honest, and orderly elections and of guarding against any frustration of
the true will of the people. Expectedly, it utilizes all means available within its power and authority to prevent the electoral process from
being manipulated and rendered an absurdity. Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish no
less the right of the people to express their will by means of the ballot. In any case, I must accept the reality that the right to information
and free speech is not illimitable and immune from the valid exercise of an ever demanding and pervasive police power. Whether any
kind of restraint should be upheld or declared invalid in the proper balancing of interest is one that must be resolved at any given
moment, not on perceived circumstances, but on prevailing facts.

Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time.
I vote, therefore, to dismiss the petition on the foregoing thesis.

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:

"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 Decision 23 in favor of respondents, the dispositive portion of which reads:

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of
its Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they being public affairs
programs which can be equated to newspapers; and

3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.

SO ORDERED."

Petitioner filed a motion for reconsideration but was denied. 24

Hence, this petition for review on certiorari.

Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs programs,
news documentaries, or socio-political editorials," are subject to petitioner’s power of review under Section 3 (b) of P.D. No. 1986 and
pursuant to this Court’s ruling in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are more accessible to the public
than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioner’s power to review television
programs under Section 3(b) of P. D. No. 1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not
violate respondents’ constitutional freedom of expression and of the press.

Respondents take the opposite stance.

The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its exhibition or
broadcast by television.

The petition is impressed with merit.

The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows:

"SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers and duties:

xxxxxx

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:
 xxx

d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale,
lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end and that no
such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof
shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

x x x x x x."

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program "The
Inside Story." The task is not Herculean because it merely resurrects this Court En Banc’s ruling in Iglesia ni Cristo vs. Court of
Appeals.26 There, the Iglesia ni Cristo sought exception from petitioner’s review power contending that the term "television programs"
under Sec. 3 (b) does not include "religious programs" which are protected under Section 5, Article III of the Constitution. 27 This Court,
through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner "the power to screen, review and examine "all
television programs," emphasizing the phrase "all television programs," thus:

"The law gives the Board the power to screen, review and examine all ‘television programs.’ By the clear terms of the law, the
Board has the power to ‘approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs
x x x.’ The law also directs the Board to apply ‘contemporary Filipino cultural values as standard’ to determine those which are
objectionable for being ‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime.’"

Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something
therefrom, unless there is compelling reason apparent in the law to justify it. 28 Ubi lex non distinguit nec distinguere debemos. Thus,
when the law says "all television programs," the word "all" covers all television programs, whether religious, public affairs, news
documentary, etc.29 The principle assumes that the legislative body made no qualification in the use of general word or expression. 30

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it has power of
review.

Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The Inside Story" is a
"public affairs program, news documentary and socio-political editorial" protected under Section 4,31 Article III of the Constitution. Albeit,
respondent’s basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni
Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion
has been accorded a preferred status by the framers of our fundamental laws, past and present, "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs x x x." Yet despite the fact that freedom of religion
has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review
power.

Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech and of the
press. However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of the press has
a preferred status.

If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with
more reason, there is no justification to exempt therefrom "The Inside Story" which, according to respondents, is protected by the
constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status.

The only exceptions from the MTRCB’s power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such
as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels.
Thus:

"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any
moviehouse, theatre, or public place or by television within the Philippines any motion picture, television program or publicity material,
including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and
passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by
television a label or notice showing the same to have been officially passed by the BOARD when the same has not been previously
authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine
Government and/or its departments and agencies, and newsreels."

Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of newsreels.

Their contention is unpersuasive.

P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels as short motion picture films portraying or dealing
with current events.33 A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already
happened. Some concrete examples are those of Dziga Vertov’s Russian Kino-Pravda newsreel series (Kino-Pravda means literally
"film-truth," a term that was later translated literally into the French cinema verite) and Frank Capra’s Why We Fight
series.34 Apparently, newsreels are straight presentation of events. They are depiction of "actualities." Correspondingly, the
MTRCB Rules and 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."36 Clearly, the "The
Inside Story" cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of news treatment;
a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions. 37 Certainly, such kind
of program is within petitioner’s review power.

It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly, we are not
called upon to determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be
passed abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program.
Neither did it cancel respondents’ permit. Respondents were merely penalized for their failure to submit to petitioner "The Inside Story"
for its review and approval. Therefore, we need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and
Regulations specified by respondents contravene the Constitution.

Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of
the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry,
namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case or controversy; (3) that the
question must be raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question must
be necessary to the determination of the case itself.38

WHEREFORE, the instant petition is GRANTED.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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN
PONCE ENRILE, respondents.

FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer
Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic
peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer
Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and
Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification
Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film
production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion
picture enclosing a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern history that-made
possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy
have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution from the death of
Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge international audience understand
this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average
American attitude to the Phihppinence —once a colony, now the home of crucially important military bases. Although
Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos
except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it
becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army
Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for
General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos
regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a
secret member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of Filipino society,
and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we
meet all of the principal characters and experience directly dramatic recreation of the revolution. The story
incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere
and forces that combined to overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,'
'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the
Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they
have developed a script we believe accurately depicts the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian
Broadcast Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed
to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven
with real events, and utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation,
reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or
other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him]
or any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and
petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with
the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from
producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court
issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the
mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would
amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack
of cause of action as the mini-series had not yet been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive
portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities
employed or under contract with them, including actors, actresses and members of the production staff and crew as
well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-
series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and
from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or
marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to
answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that
plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent
prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining
Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated
Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the
respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to
resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his
family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four
Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent,
upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute
an unlawful intrusion into his privacy which he is entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes
the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In
our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press,
radio and television, motion pictures constitute a principal medium of mass communication for information, education and
entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic
impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre
cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of
motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to
inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such
a distinction were sustained, there is a diminution of the basic right to free expression. ... 4
This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the
circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are
owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by
being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities
available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected
om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R.
Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise
scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right
of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that
person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic
character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The
interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of
the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a
claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family
of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of
Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the
November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men
were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had
produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera,
said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an
illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises
Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray
publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v.
Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of
a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to
preventa violation of their own rights in the character and memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a
person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a
fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle
Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to
present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of
expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to
produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed
royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional
right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express
his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed,
occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales
v. Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television
and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed.
p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests
observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of
expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by
 petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of
expression are reached when expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court
believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture
"The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right
of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent
Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and
producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed
upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of
expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no
subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge
should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the
private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted
and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film
would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private
respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los
Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public
interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the
history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech
and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and
quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in
Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not
a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor
is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile
in the precipitating and the constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and
exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands
the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the
private life of private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place,
private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those
who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less
a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position
where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given,
more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not
complaint when they received it; that their personalities and their affairs has already public, and could no longer be
regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public
about those who have become legitimate matters of public interest. On one or another of these grounds, and
sometimes all, it was held that there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and
the right of the public to know what is going on in the world, and the freedom of the press and other agencies of
information to tell it. "News" includes all events and items of information which are out of the ordinary hum-drum
routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent
the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination
of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests
and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a
rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered
years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.
 The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current
events. It extended also to information or education, or even entertainment and amusement, by books, articles,
pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction
of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to
exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal
in allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of
the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the
peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion
of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in
the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of
the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and
the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical
in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of
private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private
respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into
what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The
Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are
directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be
regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March
1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled
"Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures
Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged
that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in
Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court
the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical
to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's
complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is
understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive
joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those
in Civil Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of
private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former
Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in
fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a
Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988
is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for
Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES
Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to
SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been
issued by him.

No pronouncement as to costs.

SO ORDERED.
 THIRD DIVISION

G.R. No. 123881 March 13, 1997

VIVA PRODUCTIONS, INC., Petitioner, v. COURT OF APPEALS AND HUBERT J.P. WEBB, Respondents.

MELO, J.:

Assailed in the petition before us are the decision and resolution of respondent Court of Appeals sustaining both the
order of the Regional Trial Court of the National Capital Judicial Region (Paranaque, Branch 274 - hereinafter referred
to as the Paranaque court) restraining "the exhibition of the movie 'The Jessica Alfaro Story" at its scheduled premiere
showing at the New Frontier Theater on September 11, 1995 at 7:30 in the evening and at its regular public exhibition
beginning September 13, 1995, as well as to cease and desist from promoting and marketing of the said movie"
(Order; p. 96, Rollo); and the order of the Regional Trial Court also of the National Capital Judicial Region (Makati
Branch 58 - hereinafter referred to as the Makati court) issuing a writ of preliminary "injunction" enjoining petitioner
further proceeding, engaging, using or implementing the promotional advertising and marketing programs for the
movie entitled "The Jessica Alfaro Story" and from showing or causing the same to be shown or exhibited in all
theaters in the entire country UNTIL after the final termination and logical conclusion of the trial in the criminal action
now pending before the Paranaque Regional Trial Court" (Order; p. 299, Rollo).

Without filing any motion for reconsideration with the two regional trial courts, petitioner elevated the matter to
respondent Court of Appeals via petition for certiorari, with an urgent prayer for the issuance of a temporary
restraining order and a writ of preliminary injunction, thereafter docketed and consolidated as C.A. G.R No. SP-38407
and SP-38408. The factual antecedents were summarized by respondent court in this manner:.

Both petitions are inexorably linked to the Rape with Homicide case, in connection with what is now known as the
"Vizconde Massacre". On June 19, 1995, after the dismissal of two (2) sets of suspects, another group of nine (9),
private respondent Hubert J.P. Webb included were charged by the National Bureau of Investigation (NBI) with the
crime of Rape With Homicide, on the strength of a sworn statement of Ma. Jessica M. Alfaro, which complaint was
docketed as I.S. No. 95-402 before the Department of Justice..

It is of public knowledge, nay beyond cavil, that the personalities involved in this development of the Vizconde
Massacre engendered a media frenzy. For at least two successive months, all sorts of news and information about the
case, the suspects and witnesses occupied the front pages of newspapers. Focus of attention was Ma. Jessica M.
Alfaro (Alfaro, for short), alluded to as the NBI star witness. Offered a movie contract by Viva Productions, Inc. for the
filming of her life story, she inked with the latter the said movie contract while the said case (I.S. 95-402) was under
investigation by the Department of Justice.

On August 10, 1995, after the conclusion of preliminary investigation before the Department of Justice, an
Information for Rape With Homicide was filed against Hubert. J.P. Webb and eight (8) others, docketed as Criminal
Case No. 95-404 before the Regional Trial Court of Paranaque, Branch 274.

On August 25, 1995, the private respondent sent separate letters to Viva Productions, Inc. and Alfaro, warning them
that the projected showing of subject movie on the life story of Alfaro would violate the sub judice rule, and his
(Hubert J.P. Webb's) constitutional rights as an accused in said criminal case. But such letters from private respondent
notwithstanding, petitioner persisted in promoting, advertising and marketing "The Jessica Alfaro Story" in the print
and broadcast media and, even on billboards. Premier Showing of the movie in question was then scheduled for
September 11, 1995, at the New Frontier Theater, with regular public exhibition thereof set for September 13, 1995,
in some sixty (60) theaters.

And so, on September 6, 1995, Hubert J.P. Webb, the herein private respondent, filed a Petition for Contempt in the
same Criminal Case No. 95-404; complaining that the acts of petitioner and Alfaro concerning "The Jessica Alfaro
Story" movie were contumacious, within the contemplation of Section 3, Rule 71 of the Revised Rules of Court.
Following the full day of hearing on September 8, 1995, and viewing of the controversial movie itself, the respondent
Regional Trial Court of Paranaque came out with its Cease and Desist Order aforequoted.

On September 8, 1995, respondent Hubert J.P. Webb instituted a case for Injunction With Damages, docketed as Civil
Case No. 951365 before the Regional Trial Court of Makati City, Branch 58, which court issued, ex parte, before the
matter could be heard on notice, the Temporary Restraining Order under attack.

(pp. 61-62, Rollo.)

On December 13, 1995, respondent court dismissed the consolidated petitions.

Following the denial of petitioner's motion for reconsideration, the instant petition was filed wherein the following
issues are ventilated:

WHETHER OR NOT THE PARAÑAQUE COURT CAN TOTALLY DISREGARD AND INDISCRIMINATELY CURTAIL
PETITIONER'S CONSTITUTIONAL RIGHT TO FREEDOM OF EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE
OF A CLEAR AND PRESENT DANGER.

II

WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE COGNIZANCE OF THE INJUNCTION CASE FILED
BEFORE IT WHICH IS IDENTICAL TO THE CASE PENDING BEFORE THE PARAÑAQUE COURT WHICH HAS ALREADY
ACQUIRED JURISDICTION OVER THE ACT COMPLAINED OF.

III

WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING BY FILING TWO (2) CASES WITH EXACTLY
THE SAME FACTUAL SET-UP, ISSUES INVOLVED AND RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT COURTS OF
COORDINATE JURISDICTION.

(p. 20, Rollo.)

We rule to grant the petition, reversing and setting aside the orders of respondent Court of Appeals, thus innulling and
setting aside the orders of the Makati court and lifting the restraining order of the Parañaque court for forum
shopping.

The key issue to be resolved is whether or not respondent court ruled correctly in upholding the jurisdiction of
the Makati court to take cognizance of the civil action for injunction filed before it despite the fact that the same relief,
insofar as preventing petitioner from showing of the movie is concerned had also been sought by the same private
respondent before the Parañaque court in proceedings for contempt of court. Corollarily, it may be asked if private
respondent and/or his counsel can be held guilty of forum shopping.

Petitioner contends that the Makati court has no jurisdiction to take cognizance of the action for damages because the
same had been impliedly instituted in the contempt proceedings before the Parañaque court, which after acquiring and
exercising jurisdiction over the case, excludes all other courts of concurrent jurisdiction from taking cognizance of the
same. Moreover, citing Circular No. 28-91, petitioner accuses private respondent of forum shopping.

Private respondent, on the other hand, posits that the Makati court's jurisdiction cannot be validly and legally disputed
for it is invested with authority, by express provision of law, to exercise jurisdiction in the action for damages, as may
be determined by the allegations in the complaint. The temporary restraining order and writ of injunction issued by
the Makati court are mere provisional remedies expressly sanctioned under Rule 58 of the Revised Rules of Court. He
also maintains that there is no forum shopping because there is no identity of causes of action. Besides, the action for
damages before the Makati court cannot be deemed instituted in the contempt proceedings before the Parañaque
court because the rightful parties therein are only the court itself, as the offended party, and petitioner and witness
Jessica Alfaro, as accused.

We find the shrewd and astute maneuverings of private respondent ill-advised. It will not escape anybody's notice
that the act of filing the supposed action for injunction with damages with the Makati court, albeit a separate and
distinct action from the contempt proceedings then pending before the Parañaque court, is obviously and solely
intended to obtain the preliminary relief of injunction so as to prevent petitioner from exhibiting the movie on its
premiere showing on September 11, 1995 and on its regular showing beginning September 13, 1995. The alleged
relief for damages becomes a mere subterfuge to camouflage private respondent's real intent and to feign the
semblance of a separate and distinct action from the contempt proceedings already filed and on- going with
the Parañaque court.

Significantly, the primordial issue involved in the Makati court and the Parañaque court is one and the same - whether
or not the showing of the movie "The Jessica Alfaro Story" violates the sub-judice rule. Should the Parañaque
court find so, it would have no alternative but to enjoin petitioner from proceeding with the intended contumacious act
lest it may be cited for contempt. In the case of the Makati court, if it finds such violation, it will have to enjoin
petitioner from proceeding with the prejudicial act lest it may be held liable for damages.

The query posed before respondent court, simply stated, is whether or not the Parañaque court and the Makati
court, obviously having concurrent jurisdiction over the subject matter, can both take cognizance of the two actions
and resolve the same identical issue on the alleged violation of the sub judice rule. Respondent court erred in ruling in
the affirmative. This is the very evil sought to be avoided by this Court in issuing Circular No. 28-91 which pertinently
reads:

The attention of the Court has been called to the filing of multiple petitions and camplaints involving the same issues
in the supreme Court, the Court of Appeals or different Divisions thereof or any other tribunal or agency, with the
result that said tribunals or agency have to resolve the same issues. (Emphasis supplied.)

On February 8, 1994, this was magnified through Administrative Circular No. 04-94, effective on April 1, 1994, to
include all courts and agencies other than the Supreme Court and the Court of Appeals, to prevent forum shopping or
the multiple filing of such pleadings even at that level. Sanctions for violation thereof are expressly stated as follows:

(2) Any violation of this Circular shall be a cause for the dismissal of the complaint, petition, application or other
initiatory pleading, upon motion and after hearing. However, any clearly willful and deliberate forum shopping by any
party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action
shall be a ground for summary dismissal thereof and shall constitute direct contempt of court, Furthermore, the
submission of a false certification or non-compliance with the undertaking therein, as provided in Paragraph 1 hereof,
shall constitute indirect contempt of court, without prejudice to disciplinary proceedings against counsel and the filing
of a criminal action against the guilty party..

Private respondent's intention to engage in forum shopping becomes manifest with undoubted clarity upon the
following considerations. Notably, if not only to ensure the issuance of an injunctive relief the significance of the action
for damages before the Makati court would be nil. What damages against private respondent would there be to speak
about if the Parañaque court already enjoins the performance of the very same act complained of in the Makati
court? Evidently, the action for damages is premature if not for the preliminary injunctive relief sought. Thus, we find
grave abuse of discretion on the part of the Makati court, being a mere co-equal of the Parañaque court, in not giving
due deference to the latter before which the issue of the alleged violation of the sub-judice rule had already been
raised and submitted. In such instance, the Makati court, if it was wary of dismissing the action outrightly under
Administrative Circular No. 04-94, should have, at least, ordered the consolidation of its case with that of
the Parañaque court, which had first acquired jurisdiction over the related case in accordance with Rule 31 of the
Revised Rules of Court (Superlines Trans. Co. vs. Victor, et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap,
126 SCRA 500 [1983]), or it should have suspended the proceedings until the Parañaque court may have ruled on the
issue (Salazar vs. CFI of Laguna, 64 Phil. 785 [1937]).

Ordinarily, where a litigant sues the same party against whom another action or actions for the alleged violation of the
same right and the enforcement of the same relief or reliefs is or are still pending any one action may be dismissed on
the ground of litis pendentia and a final judgment in any one case would constitute res judicata on the other. In either
instance, there is a clear and undeniable case of forum shopping, another ground for the summary dismissal of both
actions, and at the same time an act of direct contempt of court, which includes a possible criminal prosecution and
disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA 34 [1986]).
In First Philippine International Bank vs. Court of`Appeals (252 SCRA 259 [1996]), this Court, through the same
herein Division, per Justice Panganiban, found therein petitioner bank guilty of forum shopping because -

. . . the objective or the relief being sought, though worded differently, is the same, namely, to enable the petitioner
Bank to escape from the obligation to sell the property to respondent. In Danville Maritime vs. Commission on
Audit, this Court ruled that the filing by any party of two apparently different actions, but with the same objective,
constituted forum shopping:

In the attempt to make the two actions appear to be different, petitioner impleaded different respondents therein -
PNOC in the case before the lower court and the COA in the case before this Court and sought what seems to be
different reliefs. Petitioner asks this Court to set aside the questioned letter-directive of the COA dated October 10,
1988 and to direct said body to approve the Memorandum of Agreement entered into by and between the PNOC and
petitioner, while in the complaint before the lower court petitioner seeks to enjoin the PNOC from conducting a
rebidding and from selling to other parties the vessel "T/T Andres Bonifacio," and for an extension of time for it to
comply with the paragraph 1 of the memorandum of agreement and damages. One can see that although the relief
prayed for in the two (2) actions are ostensibly different, the ultimate objective in both actions is the same, that is,
the approval of the sale of vessel in favor of petitioner, and to overturn the letter directive of the COA of October 10,
1988 disapproving the sale."

(p. 285)

In Palm Avenue Really Development Corporation vs. PCGG (153 SCRA 579 [1987]), we have these words from then
Justice, now Chief Justice Narvasa:

. . the filing by the petitioners of the instant special civil action for certiorari and prohibition in this Court despite the
pendency of their action in the Makati Regional Trial Court, is a species of forum shopping. Both actions
unquestionably involve the same transactions, the same essential facts and circumstances. The petitioner's claim of
absence of identity simply because the PCGG had not been impleaded in the RTC suit, and the suit did not involve
certain acts which transpired after its commencement, is specious. In the RTC action, as in the action before this
Court, the validity of the contract to purchase and sell of September 1, 1986, i.e., whether or not it had been
efficaciously rescinded and the propriety of implementing the same . . . were the basic issues. So, too, the relief was
the same: the prevention of such implementation and/or the restoration of the status quo ante. When the acts sought
to be restrained took place anyway despite the issuance by the Trial Court of a temporary restraining order, the RTC
suit did not become functus officio. It remained an effective vehicle for obtention of relief; and petitioners' remedy in
the premises was plain and patent; the filing of an amended and supplemental pleading in the RTC suit, so as to
include the PCGG as defendant and seek nullification of the acts sought to be enjoined but nonetheless done. The
remedy was certainly not the institution of another action in another forum based on essentially the same facts. The
adoption of this latter recourse renders the petitioner amenable to disciplinary action and both their actions, in this
Court as well as in the Court a quo dismissible.

(pp. 591-592)

Thus, while we might admit that the causes of action before the Makati court and the Parañaque court are distinct,
and that private respondent cannot seek civil indemnity in the contempt proceedings, the same being in the nature of
criminal contempt, we nonetheless cannot ignore private respondent's intention of seeking exactly identical reliefs
when it sought the preliminary relief of injunction in the Makati court. As earlier indicated had private respondent
been completely in good faith, there would have been no hindrance in filing the action for damages with the regional
trial court of Parañaque and having it consolidated with the contempt proceedings before Branch 274, so that the
same issue on the alleged violation of the sub judice rule will not have to be passed upon twice, and there would be
no possibility of having two courts of concurrent jurisdiction making two conflicting resolutions.

Yet from another angle, it may be said that when the Parañaque court acquired jurisdiction over the said issue, it
excluded all other courts of concurrent jurisdiction from acquiring jurisdiction over the same. To hold otherwise would
be to risk instances where courts of concurrent jurisdiction might have conflicting orders.This will create havoc and
result in an extremely disordered administration of justice. Therefore, even on the assumption that the Makati
court may acquire jurisdiction over the subject matter of the action for damages, without prejudice to the application
of Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction over the issue of whether or not
petitioner has violated the sub judice rule. At best, the Makati court may hear the case only with respect to the
alleged injury suffered by private respondent after the Parañaque court shall have ruled favorably on the said issue.

In fine, applying the sanction against forum shopping under Administrative Circular No. 04-94, the action filed by
private respondent with the Makati court, may be ordered summarily dismissed. Considering the nature and purpose
of contempt proceedings before the Parañaque court and the public policy of protecting the integrity of the court, we
reserve the imposition of a similar sanction to dismiss the same and leave that matter to the discretion of the
presiding judge concerned, although it is worthy to stress that insofar as injunctive relief against the showing of the
movie before the Parañaque court is concerned, we resolved to also dismiss the same by reason of forum shopping.
The sanction of twin dismissal under Buan vs. Lopez is applicable. This, however, is without prejudice to the other
aspects of the contempt proceedings which may still be pending before the Parañaque court.

In view of the foregoing disposition, we find no further need to resolve the issue of whether or not there was valid and
lawful denial by both lower courts of petitioner's right to free speech and expression. Suffice it to mention,
however,that the Court takes note of the rather unreasonable period that had elapsed from the time of the issuance of
the restraining order by the Parañaque court up to the writing of this decision. The Court also notes that the order of
the said court specifically failed to lay down any factual basis constituting a clear and present danger which will justify
prior restraint of the constitutionally protected freedom of speech and expression save its plea for time to hear and
resolve the issues raised in the petition for contempt.

WHEREFORE, the assailed decision and order of respondent court are hereby SET ASIDE, and a new one entered
declaring null and void all orders of Branch 58 of the Regional Trial Court of the National Capital Judicial Region
stationed in Makati City in its Civil Case No. 95-1365 and forthwith dismissing said case, and declaring the order of
the Regional Trial Court of the same National Capital Judicial Region stationed in Parañaque (Branch 274), functus
officio insofar as it restrains the public showing of the movie "The Jessica Alfaro Story."

Private respondent and his counsel are admonished to refrain from repeating a similar act of forum shopping, with the
stern warning that any repetition of similar acts will be dealt with more severely.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q.
SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION
PICTURES AND TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.

The Solicitor General for respondents.

FERNANDO, C.J.:

In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the
constitutional right to freedom of expression 1 of an artist—and for that matter a man of letters too—as the basis for a ruling on the
scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute
between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For Adults Only." There
is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the objections raised.
Thus the relevance of this constitutional command: "Arts and letters shall be under the patronage of the State. 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a
single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television,
with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.

In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the
classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by
petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent
Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of
the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee.
Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to
Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.

This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as
one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned
resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut
[thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The modified resolution of the
Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of this classification. All
that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the
dismissal of the petition.

An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For
petitioners, such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The
film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the
integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its
classification. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue
presented as to the previous deletions ordered by the Board as well as the statutory provisions for review of films and as to the
requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for
classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the
sufficiency of the standards remains the only question at issue.

It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board
in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the
classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom
of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution.

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their
effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson9 is the "importance of motion pictures as an organ of public opinion lessened by
the fact that they are designed to entertain as well as to inform. 10 There is no clear dividing line between what involves knowledge and
what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Our recent
decision in Reyes v. Bagatsing11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified
with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12 This is not to say that
such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that
[the State] has a right to prevent. 13

2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are
emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to
deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the
emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as
1909, in the case of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that
freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view
in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of
candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was
considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court,
therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It
can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either
parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the
exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16

3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a
substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no
doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be
reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only
probable. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the
movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned — included as they
are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of
a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is
merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use,
should be freed from the censor. 18

4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking
of the free speech and press guarantee of the United States Constitution: "All Ideas having even the slightest redeeming social
importance — unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion — have the full protection
of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment is the rejection of obscenity
as utterly without redeeming social importance. 20 Such a view commends itself for approval.

5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "The
early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly
susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have
rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon
the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity. 21

6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the
freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in 1918.
While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what
constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of expression is allowable. It is a
matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States
Supreme Court enunciated a similar doctrine.

7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are not
synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of
sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of
speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to
mankind through the ages; it is one of the vital problems of human interest and public concern. 25

8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural
values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity
are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a
constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy
that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true
representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense.
What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the
adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's personality. On the question of obscenity,
therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a
fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Justice
Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of construction, applied when
considering constitutional questions, that when a law is susceptible of two constructions' one of which will maintain and the other
destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the
controlling standard and its conformity to what the Constitution ordains.

9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was
an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa
Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears
to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to
maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this
explanation of respondents in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater
operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-
club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the
theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture,
there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative
in the young audience will misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner company
has an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the
violence in the film." 33 Petitioners, however, refused the "For Adults Only" classification and instead, as noted at the outset, filed this
suit for certiorari.

10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the
consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely
will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 it cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the
ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as
"For-Adults-Only."

Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur.

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the validity of § 11(b) of R.A. No. 6646 which
prohibits the sale or donation of print space or air time for political ads, except to the Commission on Elections under §90, of B.P. No.
881, the Omnibus Election Code, with respect to print media, and §92, with respect to broadcast media. In the present case, we
consider the validity of §92 of B.P. Blg. No. 881 against claims that the requirement that radio and television time be given free takes
property without due process of law; that it violates the eminent domain clause of the Constitution which provides for the payment of
just compensation; that it denies broadcast media the equal protection of the laws; and that, in any event, it violates the terms of the
franchise of petitioner GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of lawyers of radio and television
broadcasting companies. They are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc.,
operates radio and television broadcasting stations throughout the Philippines under a franchise granted by Congress.

Petitioners challenge the validity of §92 on the ground (1) that it takes property without due process of law and without just
compensation; (2) that it denies radio and television broadcast companies the equal protection of the laws; and (3) that it is in excess of
the power given to the COMELEC to supervise or regulate the operation of media of communication or information during the period of
election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc.
(TELEBAP). As already noted, its members assert an interest as lawyers of radio and television broadcasting companies and as
citizens, taxpayers, and registered voters.

In those cases2 in which citizens were authorized to sue, this Court upheld their standing in view of the "transcendental importance" of
the constitutional question raised which justified the granting of relief. In contrast, in the case at bar, as will presently be shown,
petitioner's substantive claim is without merit. To the extent, therefore, that a party's standing is determined by the substantive merit of
his case or preliminary estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to
raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of
the allegedly illegal conduct of the government; the injury fairly is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.3 Members of petitioner have not shown that they have suffered harm as a result of the operation of
§92 of B.P. Blg. 881.

Nor do members of petitioner TELEBAP have an interest as registered voters since this case does not concern their right of suffrage.
Their interest in §92 of B.P. Blg. 881 should be precisely in upholding its validity.

Much less do they have an interest as taxpayers since this case does not involve the exercise by Congress of its taxing or spending
power.4 A party suing as a taxpayer must specifically show that he has a sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and television broadcasting companies.
Standing jus tertii will be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that
the third party cannot assert his constitutional right, or that the eight of the third party will be diluted unless the party in court is allowed
to espouse the third party's constitutional claim. None of these circumstances is here present. The mere fact that TELEBAP is
composed of lawyers in the broadcast industry does not entitle them to bring this suit in their name as representatives of the affected
companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc., appears to have the requisite standing
to bring this constitutional challenge. Petitioner operates radio and television broadcast stations in the Philippines affected by the
enforcement of §92 of B.P. Blg. 881 requiring radio and television broadcast companies to provide free air time to the COMELEC for
the use of candidates for campaign and other political purposes.

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992
presidential election and the 1995 senatorial election and that it stands to suffer even more should it be required to do so again this
year. Petitioner's allegation that it will suffer losses again because it is required to provide free air time is sufficient to give it standing to
question the validity of §92.5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90 and §92 of the B.P. Blg. 881 are part and
parcel of a regulatory scheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for
political campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section
85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass
media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission
as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or
personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.

B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every
province or city; Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine
or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates
within the area in which the newspaper is circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. — The commission shall procure radio and television time to be known as "Comelec Time" which shall
be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For
 this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or
television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires the COMELEC
instead to procure print space and air time for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881 requires the
COMELEC to procure print space which, as we have held, should be paid for, §92 states that air time shall be procured by the
COMELEC free of charge.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause 6 and the eminent domain provision7 of the Constitution by
taking air time from radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary
source of revenue of the radio and television stations is the sale of air time to advertisers and that to require these stations to provide
free air time is to authorize a taking which is not "a de minimis temporary limitation or restraint upon the use of private property."
According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning
from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's elections,
it stands to lose P58,980,850.00 in view of COMELEC'S requirement that radio and television stations provide at least 30 minutes of
prime time daily for the COMELEC Time.8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign.9 A
franchise is thus a privilege subject, among other things, to amended by Congress in accordance with the constitutional provision that
"any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so
requires."10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not new. It goes back to the Election
Code of 1971 (R.A. No. 6388), which provided:

Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise of all radio broadcasting and television
stations are hereby amended so as to require each such station to furnish free of charge, upon request of the Commission [on
Elections], during the period of sixty days before the election not more than fifteen minutes of prime time once a week which
shall be known as "Comelec Time" and which shall be used exclusively by the Commission to disseminate vital election
information. Said "Comelec Time" shall be considered as part of the public service time said stations are required to furnish
the Government for the dissemination of public information and education under their respective franchises or permits.

The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296), which provided:

Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure radio and television time to be known as
"COMELEC Time" which shall be allocated equally and impartially among the candidates within the area of coverage of said
radio and television stations. For this purpose, the franchises of all radio broadcasting and television stations are hereby
amended so as to require such stations to furnish the Commission radio or television time, free of charge, during the period of
the campaign, at least once but not oftener than every other day.

Substantially the same provision is now embodied in §92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio and television broadcast stations
and, until the present case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII,
§11 of the Constitution authorizes the amendment of franchises for "the common good." What better measure can be conceived for the
common good than one for free air time for the benefit not only of candidates but even more of the public, particularly the voters, so that
they will be fully informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters,
which is paramount."11

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time. Even in the United
States, there are responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to
ensure diversity of views and attention to public affairs to further the system of free expression. For this purpose, broadcast stations
may be required to give free air time to candidates in an election. 12 Thus, Professor Cass R. Sunstein of the University of Chicago Law
School, in urging reforms in regulations affecting the broadcast industry, writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government should ensure free
media time for candidates. Almost all European nations make such provisions; the United States does not. Perhaps
government should pay for such time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of the grant of a license in the first instance. Steps of
this sort would simultaneously promote attention to public affairs and greater diversity of view. They would also help overcome
the distorting effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking time on the
media. 13
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. Thus, in De Villata v. Stanley,14 a regulation requiring interisland vessels licensed to engage in the interisland trade to carry
mail and, for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels and of changes of sailing
hours to enable them to tender mail for transportation at the last practicable hour prior to the vessel's departure, was held to be a
reasonable condition for the state grant of license. Although the question of compensation for the carriage of mail was not in issue, the
Court strongly implied that such service could be without compensation, as in fact under Spanish sovereignty the mail was carried
free.15

In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the PLDT to allow the interconnection of its domestic
telephone system with the international gateway facility of Eastern Telecom. The Court cited (1) the provisions of the legislative
franchise allowing such interconnection; (2) the absence of any physical, technical, or economic basis for restricting the linking up of
two separate telephone systems; and (3) the possibility of increase in the volume of international traffic and more efficient service, at
more moderate cost, as a result of interconnection.

Similarly, in the earlier case of PLDT v. NTC,17 it was held:

Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary police power of the
State for the promotion of the general welfare. The 1987 Constitution recognizes the existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common
good. Individuals and private groups, including corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty
of the State to promote distributive justice and to intervene when the common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention" with property rights dictated by "the objective
of government to promote the rapid expansion of telecommunications services in all areas of the Philippines, . . . to maximize
the use of telecommunications facilities available, . . . in recognition of the vital role of communications in nation building . . .
and to ensure that all users of the public telecommunications service have access to all other users of the service wherever
they may be within the Philippines at an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248).
Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the State, merely
exercised its delegated authority to regulate the use of telecommunications networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the state spends
considerable public funds in licensing and supervising such stations. 18 It would be strange if it cannot even require the licensees to
render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of television programs involves large
expenditure and requires the use of equipment for which huge investments have to be made. The dissent cites the claim of GMA
Network that the grant of free air time to the COMELEC for the duration of the 1998 campaign period would cost the company
P52,380,000, representing revenue it would otherwise earn if the air time were sold to advertisers, and the amount of P6,600,850,
representing the cost of producing a program for the COMELEC Time, or the total amount of P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the assumption that air time is
"finished product" which, it is said, become the property of the company, like oil produced from refining or similar natural resources after
undergoing a process for their production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting
Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply, "licenses to broadcast do not confer ownership of
designated frequencies, but only the temporary privilege of using them." Consequently, "a license permits broadcasting, but the license
has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens.
There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others
and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the airwaves." 20 As radio and television broadcast stations do not
own the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes themselves 'are not property
because they cannot be appropriated for the benefit of any individual.'" (p. 5) That means neither the State nor the stations own the air
lanes. Yet the dissent also says that "The franchise holders can recover their huge investments only by selling air time to advertisers."
(p. 13) If air lanes cannot be appropriated, how can they be used to produce air time which the franchise holders can sell to recover
their investment? There is a contradiction here.

As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program and it is for such items as "sets and
props," "video tapes," "miscellaneous (other rental, supplies, transportation, etc.)," and "technical facilities (technical crew such as
director and cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for these items will be for the account of
the candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this connection:
 (d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids, terms and condition
thereof, and consideration to be paid therefor may be arranged by the candidates with the radio/television station concerned.
However, no radio/television station shall make any discrimination among candidates relative to charges, terms, practices or
facilities for in connection with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions of pesos, the unsubstantiated charge is
made that by its decision the Court permits the "grand larceny of precious time," and allows itself to become "the people's unwitting
oppressor." The charge is really unfortunate. In Jackson v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of property
owners to the erection of party walls that he was led to say in his original draft, "a statute, which embodies the community's
understanding of the reciprocal rights and duties of neighboring landowners, does not need to invoke the penalty larceny of the police
power in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage so that in the end it spoke only
of invoking "the police power."22 Justice Holmes spoke of the "petty larceny" of the police power. Now we are being told of the "grand
larceny [by means of the police power] of precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted GMA Network, Inc. a franchise for the operation of
radio and television broadcasting stations. They argue that although §5 of R.A. No. 7252 gives the government the power to temporarily
use and operate the stations of petitioner GMA Network or to authorize such use and operation, the exercise of this right must be
compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. — A special right is hereby reserved to the President of the Philippines, in times of rebellion,
public peril, calamity, emergency, disaster or disturbance of peace and order, to temporarily take over and operate the stations
of the grantee, to temporarily suspend the operation of any station in the interest of public safety, security and public welfare,
or to authorize the temporary use and operation thereof by any agency of the Government, upon due compensation to the
grantee, for the use of said stations during the period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time constitutes the use and operation of the
stations of the GMA Network, Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio
and television stations but only the allocation of air time to the candidates for the purpose of ensuring, among other things, equal
opportunity, time, and the right to reply as mandated by the Constitution.23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg. 881, which is said to have amended
R.A. No. 7252, actually antedated it.24 The provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No.
7252. And, indeed, §4 of the latter statute does.

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate public service time" implements §92
of B.P. Blg. 881. Undoubtedly, its purpose is to enable the government to communicate with the people on matters of public interest.
Thus, R.A. No. 7252 provides:

Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public service time to enable the Government,
through the said broadcasting stations, to reach the population on important public issues; provide at all times sound and
balanced programming; promote public participation such as in community programming; assist in the functions of public
information and education; conform to the ethics of honest enterprise; and not use its station for the broadcasting of obscene
and indecent language, speech, act or scene, or for the dissemination of deliberately false information or willful
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable acts.
(Emphasis added).

It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly provided that the COMELEC Time
should "be considered as part of the public service time said stations are required to furnish the Government for the dissemination of
public information and education under their respective franchises or permits." There is no reason to suppose that §92 of B.P. Blg. 881
considers the COMELEC Time therein provided to be otherwise than as a public service which petitioner is required to render under §4
of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a
duty voluntarily assumed by petitioner in accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for free air time without taking into account
COMELEC Resolution No. 2983-A, §2 of which states:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
 Time", effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998,
for candidates for local elective offices, until May 9, 1998. (Emphasis added).

This is because the amendment providing for the payment of "just compensation" is invalid, being in contravention of §92 of B.P. Blg.
881 that radio and television time given during the period of the campaign shall be "free of charge." Indeed, Resolution No. 2983
originally provided that the time allocated shall be "free of charge," just as §92 requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioner's claim in this case that the original provision was unconstitutional because it
allegedly authorized the taking of property without just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more dispute because the payment of compensation is
now provided for. It is basic, however, that an administrative agency cannot, in the exercise of lawmaking, amend a statute of
Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time and that "theoretically the COMELEC
can demand all of the air time of such stations."25 Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters
radio and television time. What they claim is that because of the breadth of the statutory language, the provision in question is
susceptible of "unbridled, arbitrary and oppressive exercise."26

The contention has no basis. For one, the COMELEC is required to procure free air time for candidates "within the area of coverage" of
a particular radio or television broadcaster so that it cannot, for example, procure such time for candidates outside that area. At what
time of the day and how much time the COMELEC may procure will have to be determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications and their programs of government. As stated in Osmeña v. COMELEC,
the COMELEC Time provided for in §92, as well as the COMELEC Space provided for in §90, is in lieu of paid ads which candidates
are prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining the details of the
COMELEC Time as well as those of the COMELEC Space.

There would indeed be objection to the grant of power to the COMELEC if §92 were so detailed as to leave no room for
accommodation of the demands of radio and television programming. For were that the case, there could be an intrusion into the
editorial prerogatives of radio and television stations.

Differential Treatment of

Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free air time. They contend that
newspapers and magazines are not similarly required as, in fact, in Philippine Press Institute v. COMELEC,27 we upheld their right to
the payment of just compensation for the print space they may provide under §90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same treatment under the free
speech guarantee of the Constitution as the print media. There are important differences in the characteristics of the two media,
however, which justify their differential treatment for free speech purposes. Because of the physical limitations of the broadcast
spectrum, the government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no similar
justification for government allocation and regulation of the print media.28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or licensees. The reason for this is
that, as already noted, the government spends public funds for the allocation and regulation of the broadcast industry, which it does not
do in the case of the print media. To require the radio and television broadcast industry to provide free air time for the COMELEC Time
is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and pervasive influence of the broadcast media,
"[n]ecessarily . . . the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media."29

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books
are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here,
there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like
food and shelter perforce enjoy high priorities.
 On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may
be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to
be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age,
persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful and
immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and reject the
utterance. 30

Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection of the law has no basis. In addition, their plea
that §92 (free air time) and §11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave the way for a return to
the old regime where moneyed candidates could monopolize media advertising to the disadvantage of candidates with less resources.
That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not free to set aside the judgment of
Congress, especially in light of the recent failure of interested parties to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C, §4 of the Constitution does not
include the power to prohibit. In the first place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4 of the
Constitution,31 among other things, is the use by media of information of their franchises or permits, while what Congress (not the
COMELEC) prohibits is the sale or donation of print space or air time for political ads. In other words, the object of supervision or
regulation is different from the object of the prohibition. It is another fallacy for petitioners to contend that the power to regulate does not
include the power to prohibit. This may have force if the object of the power were the same.

In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the regulatory provision in the statute. The other half is the
mandate to the COMELEC to procure print space and air time for allocation to candidates. As we said in Osmeña v. COMELEC:

The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is misleading, for even as §11(b) prohibits the sale
or donation of print space and air time to political candidates, it mandates the COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no suppression of political ads but only a regulation of the time and manner
of advertising.

xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass
media, the law provides for allocation, by the COMELEC of print space and air time to give all candidates equal time and
space for the purpose of ensuring "free, orderly, honest, peaceful, and credible elections."

With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only
means through which candidates can advertise their qualifications and programs of government. More than merely depriving their
qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations
to provide air time unless paid by the government would clearly deprive the people of their right to know. Art III, §7 of the Constitution
provides that "the right of the people to information on matters of public concern shall be recognized," while Art. XII, §6 states that "the
use of property bears a social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty of the
State to promote distributive justice and to intervene when the common good so demands."

To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to it that the variety and vigor of
public debate on issues in an election is maintained. For while broadcast media are not mere common carriers but entities with free
speech rights, they are also public trustees charged with the duty of ensuring that the people have access to the diversity of views on
political issues. This right of the people is paramount to the autonomy of broadcast media. To affirm the validity of §92, therefore, is
likewise to uphold the people's right to information on matters of public concern. The use of property bears a social function and is
subject to the state's duty to intervene for the common good. Broadcast media can find their just and highest reward in the fact that
whatever altruistic service they may render in connection with the holding of elections is for that common good.

For the foregoing reasons, the petition is dismissed.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing, JJ., concur.
 Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in his ponencia, particularly, in holding
that petitioner TELEBAP lacks locus standi in filing the instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a
legitimate exercise of police power of the State.

The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is, primordially, a business enterprise, it
nevertheless, also addresses in many ways certain imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be a contract which may not
be impaired, the United States Supreme Court opined:

. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants of property and franchises may be
made if they do not impair the supreme authority to make laws for the right government of the State; but no Legislature can
curtail the power of its successors to make such laws as they may deem proper in matters of police. . .

In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its lawful exercise, i.e., (a) that its
utilization is demanded by the interests of the public, and (b) that the means employed are reasonably necessary, and not unduly
oppressive, for the accomplishment of the purposes and objectives of the law.

I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in contravention of B.P. No. 881. There is
nothing in the law that prohibits the COMELEC from itself procuring airtime, perhaps longer than that which can reasonably be
allocated, if it believes that in so opting, it does so for the public good.

I vote to DISMISS the petition.

ROMERO, J., dissenting;

Section 92 of BP 881 constitutes taking of private property without just compensation. The power of eminent domain is a power
inherent in sovereignty and requires no constitutional provision to give it force. It is the rightful authority which exists in every
sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and
control individual property for the public benefit as the public safety, necessity, convenience or welfare demand. 1 The right to
appropriate private property to public use, however, lies dormant in the state until legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its appropriation. 2

Section 92 of BP 881 states

Sec. 92. — Comelec Time — The Comelec shall procure radio and television time to be known as "Comelec Time" which shall
be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For
this purpose, the franchise of all radio and television stations are hereby attended so as to provide radio and television
time free of charge during the period of election campaign.

Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution 2983-A, the pertinent provision of which
reads as follows:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998,
for candidates for local elective offices, until May 9, 1998.

Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with radio and television time free of
charge is a flagrant violation of the constitutional mandate that private property shall not be taken for public use without just
compensation. While it is inherent in the State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the individual whose property has been
sacrificed for the good of the community. Hence, Section 9 Article III of the 1987 Constitution which reads "No private property shall be
taken for public use without just compensation," gives us two limitations on the power of eminent domain: (1) the purpose of taking must
be for public use and (2) just compensation must be given to the owner of the private property.

There is, of course, no question that the taking of the property in the case at bar is for public use, i.e. to ensure that air time is allocated
equally among the candidates, however, there is no justification for the taking without payment of just compensation. While Resolution
No. 2983-A has provided that just compensation shall be paid for the 30 minutes of prime time granted by the television stations to
respondent Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881 which mandates that radio and
television time be provided to respondent Comelec free of charge. Since the legislative intent is the controlling element in determining
the administrative powers, rights, privileges and immunities granted,3 respondent Comelec may, at any time, despite the resolution
passed, compel television and radio stations to provide it with airtime free of charge.

Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation which cannot be validly done. Police
power must be distinguished from the power of eminent domain. In the exercise of police power, there is a restriction of property
interest to promote public welfare or interest which involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose, necessitating compensation therefor. Traditional
distinctions between police power and the power of eminent domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law requiring the transfer of all municipal waterworks
systems to NAWASA in exchange for its assets of equivalent value involved the exercise of eminent domain because the property
involved was wholesome and intended for public use. Property condemned under the exercise of police power, on the other hand, is
noxious or intended for noxious purpose and, consequently, is not compensable. Police power proceeds from the principle that every
holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the
community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as
shall prevent them from being injurious, and to such reasonable restraits and regulations established by law as the legislature, under
the governing and controlling power vested in them by the constitution, may think necessary and expedient. 6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found occasion to note that recent trends
show a mingling of the police power and the power of eminent domain, with the latter being used as an implement of the former like the
power of taxation. Citing the cases of Berman v. Parker7 and Penn Central Transportation Co. v. New York City8 where owners of the
Grand Central Terminal who were not allowed to construct a multi-story building to preserve a historic landmark were allowed certain
compensatory rights to mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that
measures prescribing retention limits for landowners under the Agrarian Reform Law involved the exercise of police power for the
regulation of private property in accordance with the constitution. And, where to carry out the regulation, it became necessary to deprive
owners of whatever lands they may own in excess of the maximum area allowed, the Court held that there was definitely a taking under
the power of eminent domain for which payment of just compensation was imperative.

The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read in conjunction with Sec 11(b) of RA
6646 restricts the sale or donation of airtime by radio and television stations during the campaign period to respondent Comelec, there
is an exercise of police power for the regulation of property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec to be allocated equally among all candidates, the
regulation exceeds the limits of police power and should be recognized as a taking. In the case of Pennsylvania Coal
v. Mahon,9 Justice Holmes laid down the limits of police power in this wise," The general rule is that while property may be regulated to
a certain extent, if the regulation goes too far, it will be recognized as a taking."

While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the
case. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking and it is usually in cases where
title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated
or amounts to a compensable taking. A regulation which deprives any person of the profitable use of his property constitutes a taking
and entitles him to compensation unless the invasion of rights is so slight as to permit the regulation to be justified under the police
power. Similarly, a police regulation which unreasonably restricts the right to use business property for business purposes, amounts to
taking of private property and the owner may recover therefor.10 It is also settled jurisprudence that acquisition of right of way easement
falls within the purview of eminent domain.11

While there is no taking or appropriation of title to, and possession of the expropriated property in the case at bar, there is compensable
taking inasmuch as them is a loss of the earnings for the airtime which the petitioner-intervenors are compelled to donate. It is a loss
which, to paraphrase Philippine Press Institute v. Comelec,12 could hardly be considered "de minimis" if we are to take into account the
monetary value of the compulsory donation measured by the current advertising rates of the radio and television stations.

In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that newspapers and other print media are not
compelled to donate free space to respondent Comelec inasmuch as this would be in violation of the constitutional provision that no
private property shall be taken for public use without just compensation. We find no cogent reason why radio and television stations
should be treated considering that their operating expenses as compared to those of the newspaper and other print media publishers
involve considerably greater amount of financial resources.

The fact that one needs a franchise from government to establish a radio and television station while no license is needed to start a
newspaper should not be made a basis for treating broadcast media any differently from the print media in compelling the former to
"donate" airtime to respondent Comelec. While no franchises and rights are granted except under the condition that it shall b e subject
to amendment, alteration, or repeal by the Congress when the common good so requires, 14 this provides no license for government to
disregard the cardinal rule that corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and television time be provided to respondent
Comelec free of charge UNCONSTITUTIONAL.

PANGANIBAN, J., dissenting;

At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code 1 which compels all broadcast stations in the
country "to provide radio and television time, free of charge, during the period of the [election] campaigns," which the Commission on
Elections shall allocate "equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of law and without payment of just compensation, and
denies broadcast media equal protection of the law.

In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled that print media companies cannot be required to
donate advertising space, free of charge, to the Comelec for equal allocation among candidates, on the ground that such compulsory
seizure of print space is equivalent to a proscribed taking of private property for public use without payment of just compensation.3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente V. Mendoza, holds, however, that the
foregoing PPI doctrine applies only to print media, not to broadcast (radio and TV) networks, arguing that "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." In other words, the
majority theorizes that the forced donation of air time to the Comelec is a means by which the State gets compensation for the grant of
the franchise and/or the use of the air lanes.

With all due respect, I disagree. The majority is relying on a theoretical distinction that does not make any real difference. Theory must
yield to reality. I respectfully submit the following arguments to support my dissent:

1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises and regulates their proper use.
Thus, other than collecting supervision or regulatory fees which it already does, it cannot exact any onerous and unreasonable post
facto burdens from the franchise holders, without due process and just compensation. Moreover, the invocation of the "common good"
does not excuse the unbridled and clearly excessive taking of a franchisee's property.

2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay rental fees to the government for
their use. Hence, the seizure of air time cannot be justified by the theory of compensation.

3. Airwaves and frequencies alone, without the radio and television owner's humongous investments amounting to billions of pesos,
cannot be utilized for broadcasting purposes. Hence, a forced donation of broadcast time is in actual fact a taking of such investments
without due process and without payment of just compensation.

Let me explain further each of these arguments.

I. The State Does Not Own Air Lanes:

It Merely Regulates Their Proper Use;

"Common Good" Does Not Excuse Unbridled Taking.

Significantly, the majority does not claim that the State owns the air lanes. It merely contends that "broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to
broadcast than there are frequencies to assign. A franchise is thus a privilege subject among other thing . . . to amendment, alteration
or repeal by the Congress when the common good so requires."4 True enough, a "franchise started out as a 'royal privilege or [a]
branch of the King's prerogative, subsisting in the hands of a subject.'" 5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters, mineral, coal, petroleum, and other
mineral oils, all forces, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no one owns
them. Like the air we breathe and the sunshine that sustains life, the air lanes themselves "are not property because they cannot be
appropriated for the benefit of any individual," 6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State — in the exercise of its police power —
allocates, supervises and regulates their use, so as to derive maximum benefit for the general public. The franchise granted by the
legislature to broadcasting companies is essentially for the purpose of putting order in the use of the airwaves by assigning to such
companies their respective frequencies. The purpose is not to grant them the privilege of using public property. For, as earlier stated,
airwaves are not owned by the government.

Accordingly, the National Telecommunications Commission (NTC) was tasked by law to institutionalize this regulation of the air lanes.
To cover the administrative cost of supervision and regulation, the NTC levies charges, which have been revised upwards in NTC
Memorandum Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA Network, Inc., for the year
1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and regulation fee," as borne out by its Audited
Consolidated Financial Statements for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the broadcast media through the payment of fees
unilaterally set by the former.

Franchisee's Property Cannot

Be Taken Without Just Compensation

In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and purpose of a franchise: other than
serving the public benefit which is subject to government regulation, it must also be to the franchise holder's advantage. Once granted,
a franchise (not the air lanes) together with concomitant private rights, becomes property of the grantee. 7 It is regarded by law precisely
as other property and, as any other property, it is safeguarded by the Constitution from arbitrary revocation or impairment.8 The rights
under a franchise can be neither taken nor curtailed for public use or purpose, even by the government as the grantor, without payment
of just compensation9 as guaranteed under our fundamental law.10 The fact that the franchise relates to public use or purpose does not
entitle the state to abrogate or impair its use without just compensation. 11

The majority further claims that, constitutionally,12 franchises are always subject to alteration by Congress, "when the common good so
requires." The question then boils down to this: Does Section 92 of the Omnibus Election Code constitute a franchise modification for
the "common good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13

To compel print media companies to donate "Comelec space" of the dimensions specified in Section 2 of Resolution No. 2772
(not less than one-half page), amounts to "taking" of private personal property for public use or purposes. Section 2 failed to
specify the intended frequency of such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March
1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the same period? The extent
of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use
of private property. The monetary value of the compulsory "donation," measured by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in original)

"Common Good" Does Not Justify Unbridled

Taking of Franchisee's Broadcast Time

Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and recurrence of the "donation" of air time that
Comelec can demand from radio and TV stations. There are no guidelines or standards provided as to the choice of stations, time and
frequency of airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of a station. The fact that
Comelec has not exercised its granted power arbitrarily is immaterial because the law, as worded, admits of unbridled exercise.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control
or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of
decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot
be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. 14

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a
legislation of its character is fatal. Where, as in the case of the above paragraphs, the majority of the Court could discern "an
overbreadth that makes possible oppressive or capricious application" of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental
purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."

It is undeniable, therefore, that even though the governmental purpose be legitimate and substantial, they cannot be pursued
by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of
regulation is the touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the Comelec) unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the government muscle." 16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In their Memorandum, 17 petitioners
allege (and this has not been rebutted at all) that during the 1992 election period, GMA Network has been compelled to donate
P22,498.560 worth of advertising revenues; and for the current election period, GMA stands to lose a staggering P58,980,850. Now,
clearly and most obviously, these amounts are not inconsequential or de minimis. They constitute arbitrary taking on a grand scale!

American jurisprudence is replete with citations showing that "[l]egislative regulation of public utilities must not have the effect of
depriving an owner of his property without due process of law, nor of confiscating or appropriating private property without due process
of law, nor of confiscating or appropriating private property without just compensation, nor of limiting or prescribing irrevocably vested
rights or privileges lawfully acquired under a charter or franchise." The power to regulate is subject to these constitutional
limits.18 Consequently, "rights under a franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."19 To do so is clearly beyond the power of the legislature to regulate.

II. Assuming That the State Owns Air Lanes,

Broadcast Companies Already Pay Rental Therefor.

Let me grant for the moment and for the sake of argument that the State owns the air lanes and that, by its grant of a franchise, it
should thus receive compensation for the use of said frequencies. I say, however, that by remitting unreasonably high "annual fees and
charges," which as earlier stated amounts to millions of pesos yearly, television stations are in effect paying rental fees for the use (not
just the regulation) of said frequencies. Except for the annual inspection conducted by the NTC, no other significant service is
performed by the government in exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental fees for the use of the frequencies
granted them.20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is no basis for the government, through
the Comelec, to compel unbridled donation of the air time of said companies without due process and without payment of just
compensation.

In fact, even in the case of state-owned resources referred to earlier — like oil, minerals and coal — once the license to exploit and
develop them is granted to a private corporation, the government can no longer arbitrarily confiscate or appropriate them gratis under
the guise of serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter considered the property
of the authorized explorer (or refiner) which can sell it to the public and even to the government itself. The State simply cannot demand
free gasoline for the operation of public facilities even if they benefit the people in general. It still has to pay compensation therefor.

III. Airwaves Useless Without Huge

Investment of Broadcast Companies

Setting up and operating a credible broadcasting network requires billions of pesos in investments. It is precisely the broadcast
licensee's use of a state-granted franchise or privilege which occasions its acquisition of private property in the form of broadcast
facilities and its production of air time. These properties are distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet
of Petitioner GMA, on file with the SEC, shows that its "property and equipment," which it uses in its broadcast function, amount to over
one billion pesos or, to be exact, P1,245,741,487.22 This does not include the cost of producing the programs to be broadcast, talent
fees and other aspects of broadcasting. In their Memorandum, 23 petitioners explain that the total cost for GMA to stay on the air (for
television) at present is approximately P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge investments only by selling air time to
advertisers. This is their "product," their valuable property which Section 92 forcibly takes from them in massive amounts without
payment of just compensation.

It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo, an unbridled taking of private property
may be allowed. If such appropriation were only, to use the words of PPI vs. Comelec, de minimis or insignificant — say, one hour once
or twice a month — perhaps, it can be justified by the promotion of the "common good." But a taking in the gargantuan amount of over
P58 million from Petitioner GMA for the 1998 election season alone is an actual seizure of its private investment, and not at all a
reasonable "compensation" or "alteration" for the "common good." Certainly, this partakes of CONFISCATION of private property.

What makes the taking of air time even more odious is its ex post facto nature. When the broadcast companies acquired their
franchises and set up their expensive facilities, they were not informed of the immensity of the donations they are now compelled to
give.

Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the "finished product" after a station uses
its own broadcast facilities. The frequency is lust the specific "route" or "channel" by which this medium reaches the TV sets of the
general public. Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear unrelated to the
compelled donations. While the express modification is in the franchise, what Section 92 really does is that it takes away the end
product of the facilities which were set up through the use of the entrepreneurs' investments and the broadcasters' work.

EPILOGUE

By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the need for just compensation. Thus,
Section 2 of its Resolution No. 2983-A states that "[e]very radio broadcasting and television station operating under franchise shall
grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known as 'Comelec
Time' . . ." And yet, even with such a judicious legal position taken by the very agency tasked by the Constitution to administer
elections, the majority still insists on an arbitrary seizure of precious property produced and owned by private enterprise.

That Petitioner GMA is a viable, even profitable, enterprise24 is no argument for seizing its profits. The State cannot rob the rich to feed
the poor in the guise of promoting the "common good." Truly, the end never justifies the means.

It cannot be denied that the amount and the extent of the air time demanded from GMA is huge and exorbitant, amounting, I repeat, to
over P58 million for the 1998 election season alone. If the air time required from "every radio and television station" in the country in the
magnitude stated in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be staggering — in
several hundred million pesos.

Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required payment of print media ads but, in
this case, compels broadcast stations to donate their end product on a massive scale. The simplistic distinction given — that radio and
TV stations are mere grantees of government franchises while newspaper companies are not — does not justify the grand larceny of
precious air time. This is a violation not only of private property, but also of the constitutional right to equal protection itself. The
proffered distinction between print and broadcast media is too insignificant and too flimsy to be a valid justification for the discrimination.
The print and broadcast media are equal in the sense that both derive their revenues principally from paid ads. They should thus be
treated equally by the law in respect of such ads.

To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:

1. No person, whether rich or poor, shall be deprived of property without due process. 25

2. Such property shall not be taken by the government, even for the use of the general public, without first paying just compensation to
the owner.26

3. No one, regardless of social or financial status, shall be denied equal protection of the law. 27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely on the nebulous legal theory that
broadcast stations are mere recipients of state-granted franchises which can be altered or withdrawn anytime or otherwise burdened
with post facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the private entrepreneurs' billion-
peso investments and the broadcast professionals' grit and toil in transforming these invisible franchises into merchandisable property;
and conveniently forgets the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and arbitrary. Worse,
the government,28 against which these constitutional rights to property were in the first place written, prudently agrees to respect them
and to pay adequate compensation for their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.

I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional rights of the citizens and their ultimate
protector against the tyrannies of their own government. I am afraid that by this unfortunate Decision, the majority, in this instance, has
instead converted this honorable and majestic Court into the people's unwitting oppressor.

WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election Code UNCONSTITUTIONAL and
VOID.

Purisima, J., dissents.

Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in his ponencia, particularly, in holding
that petitioner TELEBAP lacks locus standi in filing the instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a
legitimate exercise of police power of the State.

The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is, primordially, a business enterprise, it
nevertheless, also addresses in many ways certain imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz,
Constitutional Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be a contract which may not
be impaired, the United States Supreme Court opined:

. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants of property and franchises may be
made if they do not impair the supreme authority to make laws for the right government of the State; but no Legislature can
curtail the power of its successors to make such laws as they may deem proper in matters of police. . .

In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its lawful exercise, i.e., (a) that its
utilization is demanded by the interests of the public, and (b) that the means employed are reasonably necessary, and not unduly
oppressive, for the accomplishment of the purposes and objectives of the law.

I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in contravention of B.P. No. 881. There is
nothing in the law that prohibits the COMELEC from itself procuring airtime, perhaps longer than that which can reasonably be
allocated, if it believes that in so opting, it does so for the public good.

I vote to DISMISS the petition.

ROMERO, J., dissenting;

Section 92 of BP 881 constitutes taking of private property without just compensation. The power of eminent domain is a power
inherent in sovereignty and requires no constitutional provision to give it force. It is the rightful authority which exists in every
sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and
control individual property for the public benefit as the public safety, necessity, convenience or welfare demand. 1 The right to
appropriate private property to public use, however, lies dormant in the state until legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its appropriation. 2

Section 92 of BP 881 states

Sec. 92. — Comelec Time — The Comelec shall procure radio and television time to be known as "Comelec Time" which shall
be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For
this purpose, the franchise of all radio and television stations are hereby attended so as to provide radio and television
time free of charge during the period of election campaign.

Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution 2983-A, the pertinent provision of which
reads as follows:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998,
for candidates for local elective offices, until May 9, 1998.

Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with radio and television time free of
charge is a flagrant violation of the constitutional mandate that private property shall not be taken for public use without just
compensation. While it is inherent in the State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the individual whose property has been
sacrificed for the good of the community. Hence, Section 9 Article III of the 1987 Constitution which reads "No private property shall be
taken for public use without just compensation," gives us two limitations on the power of eminent domain: (1) the purpose of taking must
be for public use and (2) just compensation must be given to the owner of the private property.

There is, of course, no question that the taking of the property in the case at bar is for public use, i.e. to ensure that air time is allocated
equally among the candidates, however, there is no justification for the taking without payment of just compensation. While Resolution
No. 2983-A has provided that just compensation shall be paid for the 30 minutes of prime time granted by the television stations to
respondent Comelec, we note that the resolution was passed pursuant to Section 92 of BP 881 which mandates that radio and
television time be provided to respondent Comelec free of charge. Since the legislative intent is the controlling element in determining
the administrative powers, rights, privileges and immunities granted,3 respondent Comelec may, at any time, despite the resolution
passed, compel television and radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation which cannot be validly done. Police
power must be distinguished from the power of eminent domain. In the exercise of police power, there is a restriction of property
interest to promote public welfare or interest which involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose, necessitating compensation therefor. Traditional
distinctions between police power and the power of eminent domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law requiring the transfer of all municipal waterworks
systems to NAWASA in exchange for its assets of equivalent value involved the exercise of eminent domain because the property
involved was wholesome and intended for public use. Property condemned under the exercise of police power, on the other hand, is
noxious or intended for noxious purpose and, consequently, is not compensable. Police power proceeds from the principle that every
holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the
community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as
shall prevent them from being injurious, and to such reasonable restraits and regulations established by law as the legislature, under
the governing and controlling power vested in them by the constitution, may think necessary and expedient. 6

In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found occasion to note that recent trends
show a mingling of the police power and the power of eminent domain, with the latter being used as an implement of the former like the
power of taxation. Citing the cases of Berman v. Parker7 and Penn Central Transportation Co. v. New York City8 where owners of the
Grand Central Terminal who were not allowed to construct a multi-story building to preserve a historic landmark were allowed certain
compensatory rights to mitigate the loss caused by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that
measures prescribing retention limits for landowners under the Agrarian Reform Law involved the exercise of police power for the
regulation of private property in accordance with the constitution. And, where to carry out the regulation, it became necessary to deprive
owners of whatever lands they may own in excess of the maximum area allowed, the Court held that there was definitely a taking under
the power of eminent domain for which payment of just compensation was imperative.

The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read in conjunction with Sec 11(b) of RA
6646 restricts the sale or donation of airtime by radio and television stations during the campaign period to respondent Comelec, there
is an exercise of police power for the regulation of property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec to be allocated equally among all candidates, the
regulation exceeds the limits of police power and should be recognized as a taking. In the case of Pennsylvania Coal
v. Mahon,9 Justice Holmes laid down the limits of police power in this wise," The general rule is that while property may be regulated to
a certain extent, if the regulation goes too far, it will be recognized as a taking."

While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the
case. It is a settled rule that neither acquisition of title nor total destruction of value is essential to taking and it is usually in cases where
title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated
or amounts to a compensable taking. A regulation which deprives any person of the profitable use of his property constitutes a taking
and entitles him to compensation unless the invasion of rights is so slight as to permit the regulation to be justified under the police
power. Similarly, a police regulation which unreasonably restricts the right to use business property for business purposes, amounts to
taking of private property and the owner may recover therefor. 10 It is also settled jurisprudence that acquisition of right of way easement
falls within the purview of eminent domain.11

While there is no taking or appropriation of title to, and possession of the expropriated property in the case at bar, there is compensable
taking inasmuch as them is a loss of the earnings for the airtime which the petitioner-intervenors are compelled to donate. It is a loss
which, to paraphrase Philippine Press Institute v. Comelec,12 could hardly be considered "de minimis" if we are to take into account the
monetary value of the compulsory donation measured by the current advertising rates of the radio and television stations.

In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that newspapers and other print media are not
compelled to donate free space to respondent Comelec inasmuch as this would be in violation of the constitutional provision that no
private property shall be taken for public use without just compensation. We find no cogent reason why radio and television stations
should be treated considering that their operating expenses as compared to those of the newspaper and other print media publishers
involve considerably greater amount of financial resources.

The fact that one needs a franchise from government to establish a radio and television station while no license is needed to start a
newspaper should not be made a basis for treating broadcast media any differently from the print media in compelling the former to
"donate" airtime to respondent Comelec. While no franchises and rights are granted except under the condition that it shall be subject
to amendment, alteration, or repeal by the Congress when the common good so requires, 14 this provides no license for government to
disregard the cardinal rule that corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.

ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and television time be provided to respondent
Comelec free of charge UNCONSTITUTIONAL.

PANGANIBAN, J., dissenting;

At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code1 which compels all broadcast stations in the
country "to provide radio and television time, free of charge, during the period of the [election] campaigns," which the Commission on
Elections shall allocate "equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of law and without payment of just compensation, and
denies broadcast media equal protection of the law.

In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled that print media companies cannot be required to
donate advertising space, free of charge, to the Comelec for equal allocation among candidates, on the ground that such compulsory
seizure of print space is equivalent to a proscribed taking of private property for public use without payment of just compensation.3

The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente V. Mendoza, holds, however, that the
foregoing PPI doctrine applies only to print media, not to broadcast (radio and TV) networks, arguing that "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." In other words, the
majority theorizes that the forced donation of air time to the Comelec is a means by which the State gets compensation for the grant of
the franchise and/or the use of the air lanes.

With all due respect, I disagree. The majority is relying on a theoretical distinction that does not make any real difference. Theory must
yield to reality. I respectfully submit the following arguments to support my dissent:

1. The State does not own the airwaves and broadcast frequencies. It merely allocates, supervises and regulates their proper use.
Thus, other than collecting supervision or regulatory fees which it already does, it cannot exact any onerous and unreasonable post
facto burdens from the franchise holders, without due process and just compensation. Moreover, the invocation of the "common good"
does not excuse the unbridled and clearly excessive taking of a franchisee's property.

2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay rental fees to the government for
their use. Hence, the seizure of air time cannot be justified by the theory of compensation.

3. Airwaves and frequencies alone, without the radio and television owner's humongous investments amounting to billions of pesos,
cannot be utilized for broadcasting purposes. Hence, a forced donation of broadcast time is in actual fact a taking of such investments
without due process and without payment of just compensation.

Let me explain further each of these arguments.

I. The State Does Not Own Air Lanes:

It Merely Regulates Their Proper Use;

"Common Good" Does Not Excuse Unbridled Taking.

Significantly, the majority does not claim that the State owns the air lanes. It merely contends that "broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to
broadcast than there are frequencies to assign. A franchise is thus a privilege subject among other thing . . . to amendment, alteration
or repeal by the Congress when the common good so requires." 4 True enough, a "franchise started out as a 'royal privilege or [a]
branch of the King's prerogative, subsisting in the hands of a subject.'" 5

Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters, mineral, coal, petroleum, and other
mineral oils, all forces, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State," it is silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no one owns
them. Like the air we breathe and the sunshine that sustains life, the air lanes themselves "are not property because they cannot be
appropriated for the benefit of any individual," 6 but are to be used to the best advantage of all.

Because, as mentioned earlier, there are more prospective users than frequencies, the State — in the exercise of its police power —
allocates, supervises and regulates their use, so as to derive maximum benefit for the general public. The franchise granted by the
legislature to broadcasting companies is essentially for the purpose of putting order in the use of the airwaves by assigning to such
companies their respective frequencies. The purpose is not to grant them the privilege of using public property. For, as earlier stated,
airwaves are not owned by the government.

Accordingly, the National Telecommunications Commission (NTC) was tasked by law to institutionalize this regulation of the air lanes.
To cover the administrative cost of supervision and regulation, the NTC levies charges, which have been revised upwards in NTC
Memorandum Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA Network, Inc., for the year
1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and regulation fee," as borne out by its Audited
Consolidated Financial Statements for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the broadcast media through the payment of fees
unilaterally set by the former.

Franchisee's Property Cannot

Be Taken Without Just Compensation

In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and purpose of a franchise: other than
serving the public benefit which is subject to government regulation, it must also be to the franchise holder's advantage. Once granted,
a franchise (not the air lanes) together with concomitant private rights, becomes property of the grantee.7 It is regarded by law precisely
as other property and, as any other property, it is safeguarded by the Constitution from arbitrary revocation or impairment. 8 The rights
under a franchise can be neither taken nor curtailed for public use or purpose, even by the government as the grantor, without payment
of just compensation9 as guaranteed under our fundamental law.10 The fact that the franchise relates to public use or purpose does not
entitle the state to abrogate or impair its use without just compensation. 11

The majority further claims that, constitutionally,12 franchises are always subject to alteration by Congress, "when the common good so
requires." The question then boils down to this: Does Section 92 of the Omnibus Election Code constitute a franchise modification for
the "common good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13

To compel print media companies to donate "Comelec space" of the dimensions specified in Section 2 of Resolution No. 2772
(not less than one-half page), amounts to "taking" of private personal property for public use or purposes. Section 2 failed to
specify the intended frequency of such compulsory "donation:" only once during the period from 6 March 1995 (or 21 March
1995) until 12 May 1995? or everyday or once a week? or as often as Comelec may direct during the same period? The extent
of the taking or deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or restraint upon the use
of private property. The monetary value of the compulsory "donation," measured by the advertising rates ordinarily charged by
newspaper publishers whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in original)

"Common Good" Does Not Justify Unbridled

Taking of Franchisee's Broadcast Time

Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and recurrence of the "donation" of air time that
Comelec can demand from radio and TV stations. There are no guidelines or standards provided as to the choice of stations, time and
frequency of airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of a station. The fact that
Comelec has not exercised its granted power arbitrarily is immaterial because the law, as worded, admits of unbridled exercise.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control
or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of
decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot
be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. 14

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a
legislation of its character is fatal. Where, as in the case of the above paragraphs, the majority of the Court could discern "an
overbreadth that makes possible oppressive or capricious application" of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental
purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."

It is undeniable, therefore, that even though the governmental purpose be legitimate and substantial, they cannot be pursued
by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. For precision of
regulation is the touchstone in an area so closely related to our most precious freedoms. 15

As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the Comelec) unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the government muscle."16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In their Memorandum, 17 petitioners
allege (and this has not been rebutted at all) that during the 1992 election period, GMA Network has been compelled to donate
P22,498.560 worth of advertising revenues; and for the current election period, GMA stands to lose a staggering P58,980,850. Now,
clearly and most obviously, these amounts are not inconsequential or de minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public utilities must not have the effect of
depriving an owner of his property without due process of law, nor of confiscating or appropriating private property without due process
of law, nor of confiscating or appropriating private property without just compensation, nor of limiting or prescribing irrevocably vested
rights or privileges lawfully acquired under a charter or franchise." The power to regulate is subject to these constitutional
limits.18 Consequently, "rights under a franchise cannot be taken or damaged for a public use without the making of just compensation
therefor."19 To do so is clearly beyond the power of the legislature to regulate.

II. Assuming That the State Owns Air Lanes,

Broadcast Companies Already Pay Rental Therefor.

Let me grant for the moment and for the sake of argument that the State owns the air lanes and that, by its grant of a franchise, it
should thus receive compensation for the use of said frequencies. I say, however, that by remitting unreasonably high "annual fees and
charges," which as earlier stated amounts to millions of pesos yearly, television stations are in effect paying rental fees for the use (not
just the regulation) of said frequencies. Except for the annual inspection conducted by the NTC, no other significant service is
performed by the government in exchange for the enormous fees charged the stations. Evidently, the sums collected by the NTC
exceed the cost of services performed by it, and are therefore more properly understood as rental fees for the use of the frequencies
granted them.20

Since the use of the air frequencies is already paid for annually by the broadcast entities, there is no basis for the government, through
the Comelec, to compel unbridled donation of the air time of said companies without due process and without payment of just
compensation.

In fact, even in the case of state-owned resources referred to earlier — like oil, minerals and coal — once the license to exploit and
develop them is granted to a private corporation, the government can no longer arbitrarily confiscate or appropriate them gratis under
the guise of serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter considered the property
of the authorized explorer (or refiner) which can sell it to the public and even to the government itself. The State simply cannot demand
free gasoline for the operation of public facilities even if they benefit the people in general. It still has to pay compensation therefor.

III. Airwaves Useless Without Huge

Investment of Broadcast Companies

Setting up and operating a credible broadcasting network requires billions of pesos in investments. It is precisely the broadcast
licensee's use of a state-granted franchise or privilege which occasions its acquisition of private property in the form of broadcast
facilities and its production of air time. These properties are distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet
of Petitioner GMA, on file with the SEC, shows that its "property and equipment," which it uses in its broadcast function, amount to over
one billion pesos or, to be exact, P1,245,741,487.22 This does not include the cost of producing the programs to be broadcast, talent
fees and other aspects of broadcasting. In their Memorandum,23 petitioners explain that the total cost for GMA to stay on the air (for
television) at present is approximately P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge investments only by selling air time to
advertisers. This is their "product," their valuable property which Section 92 forcibly takes from them in massive amounts without
payment of just compensation.

It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo, an unbridled taking of private property
may be allowed. If such appropriation were only, to use the words of PPI vs. Comelec, de minimis or insignificant — say, one hour once
or twice a month — perhaps, it can be justified by the promotion of the "common good." But a taking in the gargantuan amount of over
P58 million from Petitioner GMA for the 1998 election season alone is an actual seizure of its private investment, and not at all a
reasonable "compensation" or "alteration" for the "common good." Certainly, this partakes of CONFISCATION of private property.

What makes the taking of air time even more odious is its ex post facto nature. When the broadcast companies acquired their
franchises and set up their expensive facilities, they were not informed of the immensity of the donations they are now compelled to
give.

Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the "finished product" after a station uses
its own broadcast facilities. The frequency is lust the specific "route" or "channel" by which this medium reaches the TV sets of the
general public. Technically, therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear unrelated to the
compelled donations. While the express modification is in the franchise, what Section 92 really does is that it takes away the end
product of the facilities which were set up through the use of the entrepreneurs' investments and the broadcasters' work.

EPILOGUE

By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the need for just compensation. Thus,
Section 2 of its Resolution No. 2983-A states that "[e]very radio broadcasting and television station operating under franchise shall
grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily to be known as 'Comelec
Time' . . ." And yet, even with such a judicious legal position taken by the very agency tasked by the Constitution to administer
elections, the majority still insists on an arbitrary seizure of precious property produced and owned by private enterprise.

That Petitioner GMA is a viable, even profitable, enterprise24 is no argument for seizing its profits. The State cannot rob the rich to feed
the poor in the guise of promoting the "common good." Truly, the end never justifies the means.

It cannot be denied that the amount and the extent of the air time demanded from GMA is huge and exorbitant, amounting, I repeat, to
over P58 million for the 1998 election season alone. If the air time required from "every radio and television station" in the country in the
magnitude stated in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be staggering — in
several hundred million pesos.

Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required payment of print media ads but, in
this case, compels broadcast stations to donate their end product on a massive scale. The simplistic distinction given — that radio and
TV stations are mere grantees of government franchises while newspaper companies are not — does not justify the grand larceny of
precious air time. This is a violation not only of private property, but also of the constitutional right to equal protection itself. The
proffered distinction between print and broadcast media is too insignificant and too flimsy to be a valid justification for the discrimination.
The print and broadcast media are equal in the sense that both derive their revenues principally from paid ads. They should thus be
treated equally by the law in respect of such ads.

To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:

1. No person, whether rich or poor, shall be deprived of property without due process. 25

2. Such property shall not be taken by the government, even for the use of the general public, without first paying just compensation to
the owner.26

3. No one, regardless of social or financial status, shall be denied equal protection of the law.27

The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to rely on the nebulous legal theory that
broadcast stations are mere recipients of state-granted franchises which can be altered or withdrawn anytime or otherwise burdened
with post facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the private entrepreneurs' billion-
peso investments and the broadcast professionals' grit and toil in transforming these invisible franchises into merchandisable property;
and conveniently forgets the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and arbitrary. Worse,
the government,28 against which these constitutional rights to property were in the first place written, prudently agrees to respect them
and to pay adequate compensation for their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.

I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional rights of the citizens and their ultimate
protector against the tyrannies of their own government. I am afraid that by this unfortunate Decision, the majority, in this instance, has
instead converted this honorable and majestic Court into the people's unwitting oppressor.

WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election Code UNCONSTITUTIONAL and
VOID.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12592 March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.

MALCOLM, J.:

This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of Roman Punsalan,
justice of the peace of Macabebe and Masantol, Province of Pampanga. The appeal also submits the larger question of the attitude
which the judiciary should take interpreting and enforcing the Libel Law in connection with the basic prerogatives of freedom of speech
and press, and of assembly and petition. For a better understanding, the facts in the present appeal are the first narrated in the order of
their occurrence, then certain suggestive aspects relative to the rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally, judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared and signed a
petition to the Executive Secretary through the law office of Crossfield and O'Brien, and five individuals signed affidavits, charging
Roman Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal.
Crossfield and O'Brien submitted this petition and these affidavits with a complaint to the Executive Secretary. The petition transmitted
by these attorneys was signed by thirty-four citizens apparently of considerable standing, including councilors and property owners
(now the defendants), and contained the statements set out in the information as libelous. Briefly stated the specific charges against the
justice of the peace were.

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace, who first told her
that he would draw up complaint for P5; afterwards he said he would take P3 which she paid; also kept her in the house for four days
as a servant and took from her two chickens and twelve "gandus;"

2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace, went to see the
justice of the peace to ascertain the result of the trial, and was told by the justice of the peace that if he wished to win he must give him
P50. Not having this amount, Sunga gave the justice nothing, and a few days later was informed that he had lost the case. Returning
again to the office of the justice of the peace in order to appeal, the justice told him that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice called him over to
his house, where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved.

The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting investigation,
proper action, and report. The justice of the peace was notified and denied the charges. The judge of first instance found the first count
not proved and counts 2 and 3 established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it
must be, and it is hereby, recommended to the Governor-General that the respondent be removed from his position as justice of the
peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to the
Executive Secretary."

Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and reopened the hearing;
documents were introduced, including a letter sent by the municipal president and six councilors of Masantol, Pampanga, asserting that
the justice of the peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace, had instituted the
charges for personal reasons; and the judge of first instance ordered a suppression of the charges against Punsalan and acquitted him
the same. Attorneys for complainants thereupon appealed to the Governor-General, but whether the papers were forwarded to the
Governor-General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of the following
information:

That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said accused,
voluntarily, illegally, and criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at
said time and place justice of the peace of Macabebe and Masantol of this province, wrote, signed, and published a writing
which was false, scandalous, malicious, defamatory, and libelous against the justice of the peace Mr. Roman Punsalan
Serrano, in which writing appear among other things the following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the conduct observed by
him heretofore, a conduct highly improper of the office which he holds, is found to be a public functionary who is absolutely
unfair, eminently immoral and dangerous to the community, and consequently unworthy of the office.

That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so serious, and so
denigrating which appear in the affidavits attached hereto, and by other facts no less serious, but which the undersigned
refrain from citing herein for the sake of brevity and in order not to bother too much the attention of your Honor and due to lack
of sufficient proof to substantiate them.
 That should the higher authorities allow the said justice of the peace of this town to continue in his office, the protection of the
rights and interests of its inhabitants will be illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of
Rights, and justice in this town will not be administered in accordance with law.

That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace, previous to this
time, some respectable citizens of this town of Macabebe were compelled to present an administrative case against the said
Roman Punsalan Serrano before the judge of first instance of Pampanga, in which case there were made against him various
charges which were true and certain and of different characters.

That after the said administrative case was over, the said justice of the peace, far from charging his bad and despicable
conduct, which has roused the indignation of this town of Macabebe, subsequently performed the acts abovementioned, as
stated in the affidavits herewith attached, as if intending to mock at the people and to show his mistaken valor and heroism.'

All of this has been written and published by the accused with deliberate purpose of attacking the virtue, honor, and reputation
of the justice of the peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All
contrary to law.

It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge of first instance,
the affidavits upon which based and concluding words, "To the Executive Secretary, through the office of Crossfield and O'Brien."

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and
Manuel Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary
imprisonment in case of insolvency. New attorneys for the defense, coming into the case, after the handing down of the decision, file on
December 16, 1916, a motion for a new trial, the principal purpose of which was to retire the objection interposed by the then counsel
for the defendants to the admission of Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion. All
the defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the following assignments of error:

1. The court erred in overruling the motion of the convicted defendants for a new trial.

2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their counsel to the
admission in evidence of the expediente administrativo out of which the accusation in this case arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused of the affidavits
upon which the petition forming the basis of the libelous charge was based.

4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged.

5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the alleged libelous
statements were true and free from malice.

6. The court erred in not acquitting the defendants.

7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is especially true of all the
defendants, except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.

We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this court. As a matter of
fact counsel for defendants in the lower court made an improvident objection to the admission of the administrative proceedings on the
ground that the signatures were not identified and that the same was immaterial, which objection was partially sustained by the trial
court. Notwithstanding this curious situation by reason of which the attorney for the defense attempted to destroy through his objection
the very foundation for the justification of his clients, we shall continue to consider all the proceedings as before us. Not indicating
specifically the reason for this action, let the following be stated: The administrative proceedings were repeatedly mentioned during the
trial. These proceedings were the basis of the accusation, the information, the evidence, and the judgment rendered. The prosecution
cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than to pick out certain words which
standing by themselves and unexplained are libelous and then by shutting off all knowledge of facts which would justify these words, to
convict the accused. The records in question are attached to the rollo, and either on the ground that the attorneys for the defense
retired the objection to the introduction of the administrative proceedings by the prosecution, or that a new trial should have been had
because under section 42 of the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the
trial," or because of the right of this court to call in such records as are sufficiently incorporated into the complaint and are essential to a
determination of the case, or finally, because of our conceded right to take judicial notice of official action in administrative cases and of
judicial proceedings supplemental to the basis action, we examine the record as before us, containing not alone the trial for libel, but the
proceedings previous to that trial giving rise to it. To this action, the Government can not explain for it was the prosecution which tried to
incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain principles which make up the law of libel and slander, we feel
warranted in seizing the opportunity to intrude an introductory and general discussion of freedom of speech and press and assembly
and petition in the Philippine Islands. We conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to
place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries
was unknown in the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas
Despues de Cien Años" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the
Filipinos insist upon, said: "

The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by
instituting Filipinos delegates.

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the wants of the
Filipino people demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The Malolos
Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press and
assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these Islands and won at
so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions
guarantee to the right of freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find
President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900,
laying down the inviolable rule "That no law shall be passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for a redress of grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of
organic acts for the Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they
are the counterpart of the first amendment to the Constitution of the United States, which the American people demanded before giving
their approval to the Constitution.

We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part
and parcel of the Organic Law — of the Constitution — of the Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the applicable
jurisprudence of great English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907],
204 U. S., 470.) And what are these principles? Volumes would inadequately answer. But included are the following:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence
and the dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less
than the State, so must expected criticism be born for the common good. Rising superior to any official or set of officials, to the Chief of
Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant
source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F.
and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter
of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot
criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted
terrorization of public opinion on the part of the judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a
judge does not hang suspended over the individual who dares to assert his prerogative as a citizen and to stand up bravely before any
official. On the contrary, it is a duty which every one owes to society or to the State to assist in the investigation of any alleged
misconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate or the wrongful act of any public
officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice Gayner, who
contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in whispers or with bated
breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican institutions and the complement of the part of free
speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. Petition means
that any person or group of persons can apply, without fear of penalty, to the appropriate branch or office of the government for a
redress of grievances. The persons assembling and petitioning must, of course, assume responsibility for the charges made.
Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The
inevitable and incontestable result has been the development and adoption of the doctrine of privilege.

The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of
justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant
slanderer.' (Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words
suggest a prima facie privilege which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J.

A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to
which has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory
matter which without this privilege would be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.],
846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the
character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when
the statements are found to be false, if there is probable cause for belief in their truthfulness and the charge is made in good faith, the
mantle of privilege may still cover the mistake of the individual. But the statements must be made under an honest sense of duty; a self-
seeking motive is destructive. Personal injury is not necessary. All persons have an interest in the pure and efficient administration of
justice and of public affairs. The duty under which a party is privileged is sufficient if it is social or moral in its nature and this person in
good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact that
the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom the complaint
should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective
functions of various officials such unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of proving malice then
lies on the plaintiff. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood
and the absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.)

A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such
excessive scrutiny would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona
fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I.,
72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press and of assembly
and petition, having emphasized the point that our Libel Law as a statute must be construed with reference to the guaranties of our
Organic Law, and having sketched the doctrine of privilege, we are in a position to test the facts of this case with these principles.

It is true that the particular words set out in the information, if said of a private person, might well be considered libelous per se. The
charges might also under certain conceivable conditions convict one of a libel of a government official. As a general rule words imputing
to a judge or a justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But as
suggested in the beginning we do not have present a simple case of direct and vicious accusations published in the press, but of
charges predicated on affidavits made to the proper official and thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the justice of the peace, they were believed to be true by the
petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or misfeasance in office existed is
apparent. The ends and the motives of these citizens— to secure the removal from office of a person thought to be venal — were
justifiable. In no way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous matter but on
instances which not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of first instance
to convince him of their seriousness. No undue publicity was given to the petition. The manner of commenting on the conduct of the
justice of the peace was proper. And finally the charges and the petition were submitted through reputable attorneys to the proper
functionary, the Executive Secretary. In this connection it is sufficient to note that justices of the peace are appointed by the Governor-
General, that they may be removed by the Governor-General upon the recommendation of a Judge of First Instance, or on the
Governor-General's own motion, and that at the time this action took place the Executive Bureau was the office through which the
Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in connection with the cases of U. S. vs.
Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject to removal by the
sovereign, a communication to the Secretary of State was privileged.)

The present facts are further essentially different from those established in other cases in which private individuals have been convicted
of libels of public officials. Malice, traduction, falsehood, calumny, against the man and not the officer, have been the causes of the
verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915],
29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos ([1909], 13 Phil.,
690). The Julio Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with the exception that there has been
more publicity in the present instance and that the person to whom the charge was made had less jurisdiction than had the Secretary of
Justice in the Julio Bustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged communication. Moreover,
in the Julio Bustos case we find wild statements, with no basis in fact, made against reputable members of the judiciary, "to persons
who could not furnish protection." Malicious and untrue communications are not privileged. A later case and one more directly in point
to which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs. Commonwealth [1909],
122 So. W., 123.)

We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out of constitutional
guaranties in our bill of rights. Instead of punishing citizens for an honest endeavor to improve the public service, we should rather
commend them for their good citizenship. The defendants and appellants are acquitted with the costs de officio. So ordered.

Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

THIRD DIVISION

G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision 1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the
Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in
Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the Revised Penal Code, as amended
by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years
of prision correccional, and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and
Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of
Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E.
Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd.,
corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

 b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes
and ten (10) different magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully,
feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd.,
corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd
films depicting men and women having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic)
positions which acts serve no other purpose but to satisfy the market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L.
Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the
prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court
granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of evidence for the
accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY
beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4)
YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each
and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby
ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the
government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials.
Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must
prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has no sufficient basis since
the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in
Music Fair, nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201,
and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally
a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified
by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The
trial court therefore resolved the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens
patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials,
publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily,
that the confiscated materials are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined
obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether
the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and
into whose hands a publication or other article charged as being obscene may fall.15 Another test according to Kottinger is "that which
shocks the ordinary and common sense of men as an indecency." 16 But, Kottinger hastened to say that whether a picture is obscene or
indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the
aggregate sense of the community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the
Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were
used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would
appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who
because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these
pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court
therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of
the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary
community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures
obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be
obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-
cents worths" among judges as to what is obscene or what is art. 24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It
seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a)
whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 26 But, it would be a
serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently
offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals. 29 What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in
ruling that the confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga,
Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and
shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their
exhibition. The pictures in the magazine exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in
their magazines is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and
lewdness, exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang"
with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and
acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the
performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons
interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid
curiosity, taste and lust and for [love] of excitement, including the youth who because of their immaturity are not in a
position to resist and shield themselves from the ill and perverting effects of the pictures, the display of such pictures
for commercial purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed (People
vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such
findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case,
petitioners neither presented contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in
finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of
the forms under Article 201 is committed only when there is publicity. 32 The law does not require that a person be caught in the act of
selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or
exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner
Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place. 34 Moreover, the
mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the store. 35 While the mayor’s permit had already expired,
it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to renew his
business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present
contrary evidence, the things which he possessed were presumptively his. 36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials.
Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store
attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats with finality the
findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our
view, no reversible error was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as
charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the
Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 127930. December 15, 2000.]

MIRIAM COLLEGE FOUNDATION, INC., Petitioner, v. HON. COURT OF APPEALS,

JASPER BRIONES, JEROME GOMEZ, RELLY CARPIO, ELIZABETH VALDEZCO, JOSE
MARI RAMOS, CAMILLE PORTUGAL, JOEL TAN and GERALD GARY
RENACIDO, Respondents.

DECISION

KAPUNAN, J.:

"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to young readers," and
devoid of all moral values." 1 This was now some members of the Miriam College community
allegedly described the contents of the September-October 1994 issue (Vol. 41, No. 14) of
Miriam College’s school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-
Rho). The articles in the Chi-Rho included:chanrob1es virtua1 1aw 1ibrary

. . . a story, clearly fiction, entitled ‘Kaskas’ written by one Gerald Garry Renacido . . .

Kaskas, written in Tagalog, treats of the experience of a group of young, male, combo
players who, one evening, after their performance went to see a bold show in a place called
"Flirtation." This was the way the author described the group’s exposure during that stage
show:chanrob1es virtua1 1aw 1ibrary

"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng kanilang bokalistang
kanina pa di maitago ang pagkahayok sa karneng babae na kanyang pinananabikan nuong
makalawa pa, susog naman ang tropa.

". . . Pumasok ang unang mananayaw. Si ‘Red Raven’ ayon sa emcee. Nakasuot lamang ng
bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang utong. Nagsimula siya sa
kanyang pag-giling nang tumugtog na ang unang tono ng "Goodbye" ng Air Supply. Dahan-
dahan ang kanyang mga malalantik at mapang-akit na galaw sa una. Mistulang sawa na
nililingkis ang hangin, paru-parong padapo-dapo sa mga bulaklak na lamesa, di-upang
umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling bulaklak at ang angkin
nitong malansang nektar.
"Kaskas mo babe, sige . . . kaskas."cralaw virtua1aw library

Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil sa harap
niya’y nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong tela. Hindi nakahinga si
Mike, nanigas sa kanyang kinauupuan, nanigas pati ang nasa gitna ng kanyang hita. Ang
mga mata niya’y namagnet sa kayamanang ngayo’y halos isang pulgada lamang mula sa
kanyang naglalaway na bunganga. Naputol-putol ang kanyang hininga nang kandungan ni
‘Red Raven’ ang kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito ng dahan
dahan . . . Pabilis ng pabilis.’

The author further described Mike’s responses to the dancer as follows (quoted in
part):chanrob1es virtual 1aw library

. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang ibong

walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang kanyang dibdib sa
mukha nito.

"Kaskas mo pa, kaskas mo pa!"

Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan siya nito sa
labi at iniwang bigla, upang kanyang muniin ang naudlot niyang pagtikim ng karnal na
nektar. Hindi niya maanto kung siya ay nanalo o natalo sa nangyaring sagupaan ng libog.
Ang alam lang niya ay nanlata na siya."cralaw virtua1aw library

After the show the group went home in a car with the bokalista driving. A pedestrian
happened to cross the street and the driver deliberately hit him with these
words:jgc:chanrobles.com.ph

"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng sabog
nilang drayber/bokalista."cralaw virtua1aw library

The story ends (with their car about to hit a truck) in these words: . . . "Pare . . . trak!!! Put .
. .!!!!

Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover title of "Libog
at iba pang tula."cralaw virtua1aw library

In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote: "Alam ko,
nakakagulat ang aming pamagat." Jerome then proceeded to write about previous reactions
of readers to women-writers writing about matters erotic and to gay literature. He justified
the Magazine’s erotic theme on the ground that many of the poems passed on to the editors
were about "sekswalidad at iba’t ibang karanasan nito." Nakakagulat ang tapang ng mga
manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon pang katulad ng
Miriam!"

Mr. Gomez quoted from a poem entitled "Linggo" written by himself:chanrob1es virtual 1aw
library

may mga palangganang nakatiwangwang —

mga putang biyak na sa gitna,

‘di na puwedeng paglabhan,

‘di na maaaring pagbabaran . . ."cralaw virtua1aw library

Gomez stated that the poems in the magazine are not "garapal" and "sa mga tulang ito
namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na "Libog at iba
pang Tula." He finished "Foreplay" with these words: "Dahil para saan pa ang libog kung
hindi ilalabas?"

The cover title in question appears to have been taken from a poem written by Relly Carpio
of the same title. The poem dealt on a woman and a man who met each other, gazed at each
other, went up close and "Naghalikan, Shockproof." The poem contained a background
drawing of a woman with her two mammary and nipples exposed and with a man behind
embracing her with the woman in a pose of passion-filled mien.chanrob1es virtua1 1aw
1ibrary

Another poem entitled ‘Virgin Writes Erotic’ was about a man having fantasies in his sleep.
The last verse said: "At zenith I pull it out and find myself alone in this fantasy." Opposite
the page where this poem appeared was a drawing of a man asleep and dreaming of a naked
woman (apparently of his dreams) lying in bed on her buttocks with her head up (as in a
hospital bed with one end rolled up). The woman’s right nipple can be seen clearly. Her
thighs were stretched up with her knees akimbo on the bed.

In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by Belle Campanario.
It was about a young student who has a love-selection problem: ". . . Kung sinong pipiliin:
ang teacher kong praning, o ang boyfriend kong bading." The word "praning" as the court
understands it, refers to a paranoid person; while the word "bading" refers to a sward or
"bakla" or "badidang." This poem also had an illustration behind it: of a young girl with large
eyes and sloping hair cascading down her curves and holding a peeled banana whose top the
illustrator shaded up with downward-slanting strokes. In the poem, the girl wanted to eat
banana topped by peanut butter. In line with Jerome’s "Foreplay" and by the way it was
drawn that banana with peanut butter top was meant more likely than not, to evoke a
spiritedly mundane, mental reaction from a young audience.

Another poem entitled "Malas ang Tatlo" by an unknown author went like this:chanrob1es
virtual 1aw library

‘Na picture mo na ba

no’ng magkatabi tayong dalawa

sa pantatluhang sofa —

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:chanrob1es virtual 1aw library

ikaw, ako at siya

kulang na lang, kamera."cralaw virtua1aw library

A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet spoke of a fox
(lobo) yearning for "karneng sariwa, karneng bata, karneng may kalambutan . . . isang bahid
ng dugong dalaga, maamo’t malasa, ipahid sa mga labing sakim sa romansa’ and ended with
‘hinog na para himukin bungang bibiyakin." 2

Following the publication of the paper and the magazine, the members of the editorial board,
3 and Relly Carpio, author of Libog, all students of Miriam College, received a letter signed by
Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The Letter dated 4
November 1994 stated:chanrob1es virtual 1aw library

This is to inform you that the letters of complain filed against you by members of the Miriam
Community and a concerned Ateneo grade five student have been forwarded to the Discipline
Committee for inquiry and investigation. Please find enclosed complaints.

As expressed in their complaints you have violated regulations in the student handbook
specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j,
page 36 letters m, n, and p, page 37 and no. 2 (minor offenses) letter a, page 37.

You are required to submit a written statement in answer to the charge/s on or before the
initial date of hearing to be held on November 15, 1994, Tuesday, 1:00 in the afternoon at
the DSA Conference Room. 4

None of the students submitted their respective answers. They instead requested Dr. Sevilla
to transfer the case to the Regional Office of the Department of Education, Culture and
Sports (DECS) which under Rule XII of DECS Order No. 94, Series of 1992, supposedly had
jurisdiction over the case. 5

In a Letter dated 21 November 1994, Dr. Sevilla again required the students to file their
written answers.

In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a letter 6 to the
Discipline Committee reiterating his clients’ position that said Committee had no jurisdiction
over them. According to Atty. Valmonte, the Committee was "trying to impose discipline on
[his clients] on account of their having written articles and poems in their capacity as campus
journalists." Hence, he argued that "what applies is Republic Act No. 7079 [The Campus
Journalism Act] and its implementing rules and regulations." He also questioned the partiality
of the members of said Committee who allegedly "had already articulated their position"
against his clients.chanroblesvirtuallawlibrary

The Discipline Committee proceeded with its investigation ex parte. Thereafter, the Discipline
Board, after a review of the Discipline Committee’s report, imposed disciplinary sanctions
upon the students, thus:chanrob1es virtual 1aw library

1. Jasper Briones Expulsion. Briones is the

Editor-in-Chief of Chi-Rho and

a 4th year student;

2. Daphne Cowper suspension up to (summer)

March, 1995;

3. Imelda Hilario suspension for two (2) weeks to

expire on February 2, 1995;

4. Deborah Ligon suspension up to May, 1995.

Miss Ligon is a 4th year student

and could graduate as summa

cum laude;

5. Elizabeth Valdezco suspension up to (summer)

March, 1995;

6. Camille Portugal graduation privileges withheld,

including diploma. She is an

Octoberian;

7. Joel Tan suspension for two (2) weeks to

expire on February 2, 1995;

8. Gerald Gary Renacido Expelled and given transfer

credentials. He is a 2nd year

student. He wrote the fiction

story "Kaskas" ;

9. Relly Carpio Dismissed and given transfer

credentials. He is in 3rd year

and wrote the poem "Libog" ;

10. Jerome Gomez Dismissed and given transfer

. credentials. He is in 3rd year.

He wrote the foreword

"Foreplay" to the questioned

Anthology of Poems; and

11. Jose Mari Ramos Expelled and given transfer

papers. He is a 2nd year

student and art editor of Chi-

Rho. 7

The above students thus filed a petition for prohibition and certiorari with preliminary
injunction/restraining order before the Regional Trial Court of Quezon City questioning the
jurisdiction of the Discipline Board of Miriam College over them.

On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge Jaime N.
Salazar, Jr., issued an order denying the plaintiffs’ prayer for a Temporary Restraining Order.
It held:chanrob1es virtual 1aw library

There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that excludes
school Administrators from exercising jurisdiction over cases of the nature involved in the
instant petition. R.A. 7079 also does not state anything on the matter of jurisdiction. The
DECS undoubtedly cannot determine the extent of the nature of jurisdiction of schools over
disciplinary cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it
merely prescribes for purposes of internal administration which DECS officer or body shall
hear cases arising from R A. 7079 if and when brought to it for resolution. The said order
never mentioned that it has exclusive jurisdiction over cases falling under R.A. 707. 8

The students thereafter filed a "Supplemental Petition and Motion for Reconsideration." The
College followed with its Answer.

Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of
preliminary injunction.

ACCORDINGLY, so as not to render the issues raised moot and academic, let a writ of
preliminary injunction issue enjoining the defendants, including the officers and members of
the Disciplinary Committee, the Disciplinary Board, or any similar body and their agents, and
the officers and members of the Security Department, Division, or Security Agency securing
the premises and campus of Miriam College Foundation, Inc. from:chanrob1es virtua1 1aw
1ibrary

1. Enforcing and/or implementing the expulsion or dismissal resolutions or orders complained

of against herein plaintiffs (a) Jasper Briones; (b) Gerald Gary Renacido; (c) Relly Carpio; (d)
Jerome Gomez; and (e) Jose Mari Ramos, but otherwise allowing the defendants to impose
lesser sanctions on aforementioned plaintiffs; and

2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs (all eleven of
them) from taking tests or exams and entering the Miriam campus for such purpose as
extended to all students of Miriam College Foundation, Inc.; neither should their respective
course or subject teachers or professors withhold their grades, including final grades, if and
when they meet the requirements similarly prescribed for all other students, this current 2nd
Semester of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda Hilario,
Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in force and shall not
be covered by this Injunction: Provided, that Camille Portugal now a graduate, shall have the
right to receive her diploma, but defendants are not hereby prevented from refusing her the
privilege of walking on the graduation stage so as to prevent any likely public tumults.

The plaintiffs are required to post an injunction bond in the sum of Four Thousand Pesos
(P4,000.00) each.

SO ORDERED. 9

Both parties moved for a reconsideration of the above order. In an Order dated 22 February
1995, the RTC dismissed the petition, thus:chanrob1es virtual 1aw library

4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch
as both parties do not want this court to assume jurisdiction here then this court will not be
more popish than the Pope and in fact is glad that it will have one more case out of its
docket.

ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to the parties going
to another forum.

All orders heretofore issued here are hereby recalled and set aside.

SO ORDERED. 10

The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper, sought relief in
this Court through a petition for certiorari and prohibition of preliminary
injunction/restraining order 11 questioning the Orders of the RTC dated 10 and 24 February
1995.

On 15 March 1995, the Court resolved to refer the case to the Court of Appeals (CA) for
disposition. 12 On 19 May 1995, the CA issued a resolution stating:chanrob1es virtual 1aw
library

The respondents are hereby required to file comment on the instant petition and to show
cause why no writ of preliminary injunction should be issued, within ten (10) days from
notice hereof, and the petitioners may file reply thereto within five (5) days from receipt of
former’s comment.

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.

SO ORDERED. 13

In its Decision dated 26 September 1996, respondent court granted the students’ petition.
The CA declared the RTC Order dated 22 February 1995, as well as the students’ suspension
and dismissal, void.

Hence, this petition by Miriam College.

We limit our decision to the resolution of the following issues:chanrob1es virtual 1aw library

(1) The alleged moot character of the case.

(2) The jurisdiction of the trial court to entertain the petition for certiorari filed by the
students.

(3) The power of petitioner to suspend or dismiss respondent students.

(4) The jurisdiction of petitioner over the complaints against the students.

We do not tackle the alleged obscenity of the publication, the propriety of the penalty
imposed or the manner of the imposition thereof. These issues, though touched upon by the
parties in the proceedings below, were not fully ventilated therein.

Petitioner asserts the Court of Appeals found the case moot thus:chanrob1es virtual 1aw
library

While this petition may be considered moot and academic since more than one year have
passed since May 19, 1995 when this court issued a temporary restraining order enjoining
respondents from enforcing the dismissal and suspension on petitioners . . . 14

Since courts do not adjudicate moot cases, petitioner argues that the CA should not have
proceeded with the adjudication of the merits of the case.

We find that the case is not moot.

It may be noted that what the court issued in 19 May 1995 was a temporary restraining
order, not a preliminary injunction. The records do not show that the CA ever issued a
preliminary injunction.

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to perform to refrain
from performing a particular act or acts. 15 As an extraordinary remedy, injunction is
calculated to preserve or maintain the status quo of things and is generally availed of to
prevent actual or threatened acts, until the merits of the case can be heard. 16 A preliminary
injunction persists until it is dissolved or until the termination of the action without the court
issuing a final injunction.

The basic purpose of restraining order, on the other hand, is to preserve the status quo until
the hearing of the application for preliminary injunction. 17 Under the former §5, Rule 58 of
the Rules of Court, as amended by §5, Batas Pambansa Blg. 224, a judge (or justice) may
issue a temporary restraining order with a limited life of twenty days from date of issue. 18 If
before the expiration of the 20-day period the application for preliminary injunction is denied,
the temporary order would thereby be deemed automatically vacated. If no action is taken
by the judge on the application for preliminary injunction within the said 20 days, the
temporary restraining order would automatically expire on the 20th day by the sheer force of
law, no judicial declaration to that effect being necessary. 19 In the instant case, no such
preliminary injunction was issued; hence, the TRO earlier issued automatically expired under
the aforesaid provision of the Rules of Court. 20

This limitation as to the duration of the temporary restraining order was the rule prevailing
when the CA issued its TRO dated 19 May 1995. 21 By that time respondents Elizabeth
Valdezco and Joel Tan had already served their respective suspensions. The TRO was
applicable only to respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos
and Gerald Gary Renacido all of whom were dismissed, and respondent Camille Portugal
whose graduation privileges were withheld. The TRO, however, lost its effectivity upon the
lapse of the twenty days. It can hardly be said that in that short span of time, these students
had already graduated as to render the case moot.chanrob1es virtua1 law library

Either the CA was of the notion that its TRO was effective throughout the pendency of the
case or that what is issued was a preliminary injunction. In either case, it was error on the
part of the CA to assume that its order supposedly enjoining Miriam from enforcing the
dismissal and suspension was complied with. A case becomes moot and academic when there
is no more actual controversy between the parties or no useful purpose can be served in
passing upon the merits. 22 To determine the moot character of a question before it, the
appellate court may receive proof or take notice of facts appearing outside the record. 23 In
the absence of such proof or notice of facts, the Court of Appeals should not have assumed
that its TRO was enforced, and that the case was rendered moot by the mere lapse of time.
Indeed, private respondents in their Comment herein 24 deny that the case has become
moot since Miriam refused them readmission in violation of the TRO. This fact is unwittingly
conceded by Miriam itself when, to counter this allegation by the students, it says that
private respondents never sought readmission after the restraining order was issued. 25 In
truth, Miriam relied on legal technicalities to subvert the clear intent of said order, which
states:chanrob1es virtual 1aw library

In order not to render ineffectual the instant petition, let a Temporary Restraining Order be
issued enjoining the public respondents from enforcing letters of dismissal/suspension dated
January 19, 1995.

Petitioner says that the above order is "absurd" since the order "incorrectly directs public
respondent, the Hon. Jaime Salazar, presiding judge of the Regional Trial Court of Quezon
City not to dismiss or suspend the students." 26

We do not agree. Padua v. Robles 27 lays down the rules in construing judgments. We find
these rules to be applicable to court orders as well:chanrob1es virtual 1aw library

[T]he sufficiency and efficacy of a judgment must be tested by its substance rather than its
form. In construing a judgment, its legal effects including such effects that necessarily follow
because of legal implications, rather than the language used, govern. Also, its meaning,
operation, and consequences must be ascertained like any other written instrument. Thus, a
judgment rests on the intent of the court as gathered from every part thereof, including the
situation to which it applies and attendant circumstances. (Emphasis supplied.)

Tested by such standards, we find that the order was indeed intended for private
respondents (in the appellate court) Miriam College, Et Al., and not public respondent Judge.
In dismissing the case, the trial judge recalled and set aside all orders it had previously
issued, including the writ of preliminary injunction. In doing so, the trial court allowed the
dismissal and suspension of the students to remain in force. Thus, it would indeed be absurd
to construe the order as being directed to the RTC. Obviously, the TRO was intended for
Miriam College.

True, respondent-students should have asked for a clarification of the above order. They did
not. Nevertheless, if Miriam College found the order "absurd," then it should have sought a
clarification itself so the Court of Appeals could have cleared up any confusion. It chose not
to. Instead, it took advantage of the supposed vagueness of the order and used the same to
justify its refusal to readmit the students.

As Miriam never readmitted the students, the CA’s ruling that the case is moot has no basis.
How then can Miriam argue in good faith that the case had become moot when it knew all
along that the facts on which the purported moot character of the case were based did not
exist? Obviously, Miriam is clutching to the CA’s wrongful assumption that the TRO it issued
was enforced to justify the reversal of the CA’s decision.

Accordingly, we hold that the case is not moot, Miriam’s pretensions to the contrary
notwithstanding.

II

"To uphold and protect the freedom of the press even at the campus level and to promote
the development and growth of campus journalism as a means of strengthening ethical
values, encouraging critical and creative thinking, and developing moral character and
personal discipline of the Filipino youth," 28 Congress enacted in 1991 Republic Act No.
7079. Entitled "AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF CAMPUS
JOURNALISM AND FOR OTHER PURPOSES," 29 the law contains provisions for the selection
of the editorial board 30 and publication adviser, 31 the funding of the school publication, 32
and the grant of exemption to donations used actually, directly and exclusively for the
promotion of campus journalism from donor’s or gift tax. 33

Noteworthy are provisions clearly intended to provide autonomy to the editorial board and its
members. Thus, the second paragraph of Section 4 states that" (o)nce the publication is
established, its editorial board shall freely determine its editorial policies and-manage the
publication’s funds."cralaw virtua1aw library
Section 7, in particular, provides:chanrob1es virtual 1aw library

A member of the publication staff must maintain his or her status as student in order to
retain membership in the publication staff. A student shall not be expelled or suspended
solely on the basis of articles he or she has written, or on the basis of the performance of his
or her duties in the student publication.

Section 9 of the law mandates the DECS to "promulgate the rules and regulations necessary
for the effective implementation of this Act." 34 Pursuant to said authority, then DECS
Secretary Armand Fabella, issued DECS Order No. 94, Series of 1992, providing under Rule
XII that:chanrob1es virtual 1aw library

GENERAL PROVISIONS

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help ensure and
facilitate the proper carrying out of the Implementing Rules and Regulations of Republic Act
No. 7079. It shall also act on cases on appeal brought before it.

The DECS regional office shall have the original jurisdiction over cases as a result of the
decisions, actions and policies of the editorial board of a school within its area of
administrative responsibility. It shall conduct investigations and hearings on the these cases
within fifteen (15) days after the completion of the resolution of each case. (Emphasis
supplied.)

The latter two provisions of law appear to be decisive of the present case.

It may be recalled that after the Miriam Disciplinary Board imposed disciplinary sanctions
upon the students, the latter filed a petition for certiorari and prohibition in the Regional Trial
Court raising, as grounds therefor, that:chanrob1es virtual 1aw library

DEFENDANT’S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT

SCHOOL HAVE NO JURISDICTION OVER THE CASE. 35

II

DEFENDANT SCHOOL’S DISCIPLINARY COMMITTEE AND THE DISCIPLINARY BOARD DO NOT

HAVE THE QUALIFICATION OF AN IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE
THEIR TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER OF
THEIR RIGHT TO DUE PROCESS. 36

Anent the first ground, the students theorized that under Rule XII of the Rules and
Regulations for the Implementation of R.A. No. 7079, the DECS Regional Office, and not the
school, had jurisdiction over them. The second ground, on the other hand, alleged lack of
impartiality of the Miriam Disciplinary Board, which would thereby deprive them of due
process. This contention, if true, would constitute grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the trial court. These were the same grounds
invoked by the students in their refusal to answer the charges against them. The issues were
thus limited to the question of jurisdiction — a question purely legal in nature and well within
the competence and the jurisdiction of the trial court, not the DECS Regional Office. This is
an exception to the doctrine of primary jurisdiction. As the Court held in Phil. Global
Communications, Inc. v. Relova. 37

Absent such clarity as to the scope and coverage of its franchise, a legal question arises
which is more appropriate for the judiciary than for an administrative agency to resolve. The
doctrine of primary jurisdiction calls for application when there is such competence to act on
the part of an administrative body. Petitioner assumes that such is the case. That is to beg
the question. There is merit, therefore, to the approach taken by private respondents to seek
judicial remedy as to whether or not the legislative franchise could be so interpreted as to
enable the National Telecommunications Commission to act on the matter. A jurisdictional
question thus arises and calls for an answer.chanrob1es virtua1 1aw 1ibrary
However, when Miriam College in its motion for reconsideration contended that the DECS
Regional Office, not the RTC, had jurisdiction, the trial court, refusing to "be more popish
than the Pope," dismissed the case. Indeed, the trial court could hardly contain its glee over
the fact that "it will have one more case out of its docket." We remind the trial court that a
court having jurisdiction of a case has not only the right and the power or authority, but also
the duty, to exercise that jurisdiction and to render a decision in a case properly submitted to
it. 38 Accordingly, the trial court should not have dismissed the petition without settling the
issues presented before it.

III

Before we address the question of which between the DECS Regional Office and Miriam
College has jurisdiction over the complaints against the students, we first delve into the
power of either to impose disciplinary sanctions upon the students. Indeed, the resolution of
the issue of jurisdiction would be reduced to an academic exercise if neither the DECS
Regional Office nor Miriam College had the power to impose sanctions upon the students.

Recall, for purposes of this discussion, that Section 7 of the Campus Journalism Act prohibits
the expulsion or suspension of a student solely on the basis of articles he or she has written.

A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions of higher learning
academic freedom. This institutional academic freedom includes the right of the school or
college to decide for itself, its aims and objectives, and how best to attain them free from
outside coercion or interference save possibly when the overriding public welfare calls for
some restraint. 39 The essential freedoms subsumed in the term "academic freedom"
encompasses the freedom to determine for itself on academic grounds:chanrob1es virtual
1aw library

(1) Who may teach,

(2) What may be taught,

(3) How it shall be taught, and

(4) Who may be admitted to study. 40

The right of the school to discipline its students is at once apparent in the third freedom, i.e.,
"how it shall be taught." A school certainly cannot function in an atmosphere of anarchy.

Thus, there can be no doubt that the establishment of an educational institution requires
rules and regulations necessary for the maintenance of an orderly educational program and
the creation of an educational environment conducive to learning. Such rules and regulations
are equally necessary for the protection of the students, faculty, and property. 41

Moreover, the school has an interest in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling discipline, the school teaches
discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom
"what to teach."cralaw virtua1aw library

Incidentally, the school not only has the right but the duty to develop discipline in its
students. The Constitution no less imposes such duty.chanrob1es virtua1 1aw 1ibrary

[All educational institutions] shall inculcate patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline, encourage
critical and creative thinking, broaden scientific and technological knowledge, and promote
vocational efficiency. 42

In Angeles v. Sison, we also said that discipline was a means for the school to carry out its
responsibility to help its students "grow and develop into mature, responsible, effective and
worthy citizens of the community." 43

Finally, nowhere in the above formulation is the right to discipline more evident than in "who
may be admitted to study." If a school has the freedom to determine whom to admit, logic
dictates that it also has the right to determine whom to exclude or expel, as well as upon
whom to impose lesser sanctions such as suspension and the withholding of graduation
privileges.

Thus, in Ateneo de Manila v. Capulong, 44 the Court upheld the expulsion of students found
guilty of hazing by petitioner therein, holding that:chanrob1es virtual 1aw library

No one can be so myopic as to doubt that the immediate reinstatement of respondent

students who have been investigated and found guilty by the Disciplinary Board to have
violated petitioner university’s disciplinary rules and standards will certainly undermine the
authority of the administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university’s academic freedom which has
been enshrined in the 1935, 1973 and the present 1987 Constitution. 45

Tracing the development of academic freedom, the Court continued:chanrob1es virtual 1aw
library

Since Garcia v. Loyola School of Theology, we have consistently upheld the salutary
proposition that admission to an institution of higher learning is discretionary upon a school,
the same being a privilege on the part of the student rather than a right. While under the
Education Act of 1982, students have a right "to freely choose their field of study, subject to
existing curricula and to continue their course therein up to graduation," such right is
subject, as all rights are, to the established academic and disciplinary standards laid down by
the academic institution.

"For private schools have the right to establish reasonable rules and regulations for the
admission, discipline and promotion of students. This right . . . extends as well to parents . .
. as parents under a social and moral (if not legal) obligation, individually and collectively, to
assist and cooperate with the schools."cralaw virtua1aw library

Such rules are "incident to the very object of incorporation and indispensable to the
successful management of the college. The rules may include those governing student
discipline." Going a step further, the establishment of the rules governing university-student
relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves
as collectively, the students demanded and plucked for themselves from the panoply of
academic freedom their own rights encapsulized under the rubric of "right to education"
forgetting that, In Hohfeldian terms, they have the concomitant duty, and that is, their duty
to learn under the rules laid down by the school.

. . . It must be borne in mind that universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; may,
the development, or flowering if you will, of the total man.

In essence, education must ultimately be religious — not in the sense that the founders or
charter members of the institution are sectarian or profess a religious ideology. Rather, a
religious education, as the renowned philosopher Alfred North Whitehead said, is ‘an
education which inculcates duty and reverence.’ It appears that the particular brand of
religious education offered by the Ateneo de Manila University has been lost on the
respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila
University as their own a minute longer, for they may foreseeably cast a malevolent influence
on the students currently enrolled, as well as those who come after them.

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that:
"The maintenance of a morally conducive and orderly educational environment will be
seriously imperilled, if, under the circumstances of this case, Grace Christian is forced to
admit petitioner’s children and to reintegrate them to the student body." Thus, the decision
of petitioner university to expel them is but congruent with the gravity of their misdeeds. 46

B.

Section 4 (1), Article XIV of the Constitution recognizes the State’s power to regulate
educational institution:chanrob1es virtual 1aw library

The State recognizes the complementary roles of public and private institutions in the
educational system and shall exercise reasonable supervision and regulation of all
educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the
requirement of reasonableness. Moreover, the Constitution allows merely the regulation and
supervision of educational institutions, not the deprivation of their rights.

C.

In several cases, this Court has upheld the right of the students to free speech in school
premises. In the landmark case of Malabanan v. Ramento, 47 students of the Gregorio
Araneta University Foundation, believing that the merger of the Institute of Animal Science
with the Institute of Agriculture would result in the increase in their tuition, held a
demonstration to protest the proposed merger. The rally however was held at a place other
than that specified in the school permit and continued longer than the time allowed. The
protest, moreover, disturbed the classes and caused the stoppage of the work of non-
academic personnel. For the illegal assembly, the university suspended the students for one
year. In affirming the students’ rights to peaceable assembly and free speech, the Court
through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US Supreme Court in
Tinker v. Des Moines School District. 48

Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do
so. They enjoy like the rest of the citizens the freedom to express their views and
communicate their thoughts to those disposed to listen in gatherings such as was held in this
case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines
Community School District, ‘shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.’ While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it cannot go so far as to be
violative of constitutional safeguards. On a more specific level there is persuasive force to
this Fortas opinion. "The principal use to which the schools are dedicated is to accommodate
students during prescribed hours for the purpose of certain types of activities. Among those
activities is personal intercommunication among the students. This is not only inevitable part
of the educational process. A student’s rights, therefore, do not embrace merely the
classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during
the authorized hours, he may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without ‘materially and substantially interfer[ing] with the
requirements of appropriate discipline in the operation of the school’ and without colliding
with the rights of others. . . . But conduct by the student, in class or out of it, which for any
reason — whether it stems from time, place, or type of behavior — materially disrupts
classwork or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech. 49

The Malabanan ruling was followed in Villar v. Technological Institute of the Philippines, 50
Arreza v. Gregorio Araneta University Foundation, 51 and Non v. Dames II. 52

The right of the students to free speech in school premises, however, is not absolute. The
right to free speech must always be applied in light of the special characteristics of the school
environment. 53 Thus, while we upheld the right of the students to free expression in these
cases, we did not rule out disciplinary action by the school for "conduct by the student, in
class or out of it, which for any reason — whether it stems from time, place, or type of
behavior — which materially disrupts classwork or involves substantial disorder or invasion of
the rights of others." 54 Thus, in Malabanan, we held:chanrob1es virtual 1aw library

6. Objection is made by private respondents to the tenor of the speeches by the student
leaders. That there would be a vigorous presentation of view opposed to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture was to be
expected. There was no concealment of the fact that they were against such a move as it
confronted them with a serious problem ("isang malaking suliranin.") They believed that such
a merger would result in the increase in tuition fees, an additional headache for their parents
("isa na naman sakit sa ulo ng ating mga magulang.") If in the course of such
demonstration, with an enthusiastic audience goading them on, utterances extremely critical
at times, even vitriolic, were let loose, that is quite understandable. Student leaders are
hardly the timid, different types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious language of the academe.
At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery
exhortations. They take into account the excitement of the occasion, the propensity of
speakers to exaggerate, the exuberance of youth. They may give the speakers the benefit of
their applause, but with the activity taking place in the school premises and during the
daytime, no clear and present danger of public disorder is discernible. This is without
prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves substantial disorder or invasion of the rights of
others." 55

It is in the light of this standard that we read Section 7 of the Campus Journalism Act.
Provisions of law should be construed in harmony with those of the Constitution; acts of the
legislature should be construed, wherever possible, in a manner that would avoid their
conflicting with the fundamental law. 56 A statute should not be given a broad construction if
its validity can be saved by a narrower one. 57 Thus, Section 7 should be read in a manner
as not to infringe upon the school’s right to discipline its students. At the same time,
however, we should not construe said provision as to unduly restrict the right of the students
to free speech. Consistent with jurisprudence, we read Section 7 of the Campus Journalism
Act to mean that the school cannot suspend or expel a student solely on the basis of the
articles he or she has written, except when such article materially disrupt class work or
involve substantial disorder or invasion of the rights of others.chanrob1es virtua1 1aw
1ibrary

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed
against respondent students becomes self-evident. The power of the school to investigate is
an adjunct of its power to suspend or expel. It is a necessary corollary to the enforcement of
rules and regulations and the maintenance of a safe and orderly educational environment
conducive to learning. 58 That power, like the power to suspend or expel, is an inherent part
of the academic freedom of institutions of higher learning guaranteed by the Constitution. We
therefore rule that Miriam College has the authority to hear and decide the cases filed
against respondent students.

WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. Petitioner
Miriam College is ordered to READMIT private respondent Joel Tan whose suspension has
long lapsed.

SO ORDERED.chanrob1es virtual law library