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Republic of the Philippines
SUPREME COURT Manila
EN BANC
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr.,
Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National
Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO
BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo,
Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne
Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon,
Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his
official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief,
Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO),
PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS
GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS,
Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR
LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
D E C I S I O N
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as
organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen
implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested
and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the
country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that
their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas
Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them
along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on
October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in front of the
University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from
proceeding further. They were then forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy
of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other
Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right
without prejudice to the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in
a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of
grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local
ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees
resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa
Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or
any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street
march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to organize and hold a
public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly
established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of
said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by
this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is
to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause
the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may
contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight
(48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or
modifying it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder
shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length of time, of any public
highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate
the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or
undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all
reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the
permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons
not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public assembly.
However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed
and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested by the
leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders
of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the
law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal
Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is required, the said
public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written
permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those
set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an
otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other
official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official
acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the
occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and
loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be
punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and
one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice
to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located
within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months
from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the
other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent
with the provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex "A" to the Petition in
G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite
people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no
permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances
on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with
ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of
mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive
government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on
Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and
present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public
assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions
in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not
espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because
they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble
and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies
without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually
prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present
danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside
from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the
prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable:
First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the
five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would
possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that
no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and
violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine
National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and
Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes, as Secretary of the
Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other
public officers and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor
Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of
the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation
embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no
reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open
alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public assembly’s time,
place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in
the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rally’s
program content or the statements of the speakers therein, except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental interest to
support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the
demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the
mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear
and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger
of a substantive evil" both express the meaning of the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and
restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement of existing
laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the
ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were
under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people;
that J. B. L. Reyes v. Bagatsing,11
Primicias v. Fugoso,12
and Jacinto v. CA,13
have affirmed the constitutionality of requiring a permit; that the
permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it
covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral
arguments on April 4, 2006,14
stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No.
7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues,
particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5
and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch
as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the
maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo
Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s
streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such
permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a
functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15
the Court,
as early as the onset of this century, in U.S. v. Apurado,16
already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and, for that matter,
to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are
guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of
Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people’s exercise of these rights. As early as
the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more
intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17
the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal
rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the
nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to
the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of
such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government
through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to
political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact
ordinances for the purpose.18
Reyes v. Bagatsing19
further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like
free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or
punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive
evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation
and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much
less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the
state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge,
speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public
health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from
an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the
mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free
speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become
part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that
this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the
prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be
the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person
who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be
avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the
greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over
their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is to make a mockery of
the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the
place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage,
of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the
guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park
that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City
of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion
finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was construed by
the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license,
and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue
or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil
liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the
safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection."
x x x
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official,
here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a
specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other
place."
x x x
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public
place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to
such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that
there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the
proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments
– rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative
of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as
they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a
private place, only the consent of the owner or the one entitled to its
legal possession is required. Such application should be filed well
ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or
to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded,
they can have recourse to the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not required.-- A written
permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall include
the names of the leaders or organizers; the purpose of such
public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the
probable number of persons participating, the transport
and the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of the
mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working
days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or
municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal
building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting
in his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will
create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act
on the application within two (2) working days from the
date the application was filed, failing which, the permit
shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by
the applicant on the premises of the office of the mayor
and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform
the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served
on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies
the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the Metropolitan Trial
Court, the Municipal Trial Court, the Municipal Circuit
Trial Court, the Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be
required. A decision granting such permit or modifying it
in terms satisfactory to the applicant shall be immediately
executory.
(g) All cases filed in court under this section shall be
decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the
next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals
are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and
manner of the assemblies. This was adverted to in Osmeña v. Comelec,20
where the Court referred to it as a "content-neutral" regulation of the
time, place, and manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22
that would use public places.
The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would
not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public
assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is
independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public
morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
x x x
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his
choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary
meaning is well-known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of
mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear
and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test stated in Sec.
6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an
inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024
is thus not necessary
to resolve in these proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no
prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located
within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months
from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom park within six months
from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the
swell of freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of their right
to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit
may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have
complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance
notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit
of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance"
under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall
observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a
different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious
threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated."
Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a
permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This
could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons
under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is.
Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of
violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its
legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from
the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening
behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I
said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons
violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas
Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the
same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated
by the law itself, namely, maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
x x x
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during
a public assembly or in the dispersal of the same.
x x x
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public assembly.
However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed
and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested by the
leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law enforcement agencies shall observe the
following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders
of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the
law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal
Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal.
x x x
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is required, the said
public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion
thereof:
x x x
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound
systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the
police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary
consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days
from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under
the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be
peacefully dispersed following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom
of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to
the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness
that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the
time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present
danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to
designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with
Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit
of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayor’s
office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments,
are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the
establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days
from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably
assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore,
Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID
and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. The
petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
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 places16
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
G.R. No. L-13954 August 12, 1959
GENARO GERONA, ET AL., petitioners-appellants,
vs.
THE HONORABLE SECRETARY OF EDUCATION, ET AL., respondents-appellees.
K.V. Felon and Hayed C. Cavington for appellant.
Office of the Solicitor General Edilberto Barot and Solicitor Conrado T. Limcaoco for appellees.
MONTEMAYOR, J.:
Petitioners are Appealing the decision of the Court of First Instance of Masbate dismissing their complaint. Acting upon the "Urgent Motion
for Writ of Preliminary Injunction" filed on behalf of petitioners of December 12, 1958, and without objection on the part of the Solicitor
General, by resolution of this Court of December 16, we issued the corresponding writ of preliminary injunction restraining respondents from
excluding or banning petitioners-appellants, their children and all other of Jehovah's Witnesses for whom this action has been brought, from
admission to public schools, particularly the Buenavista Community School, solely on account of their refusal to salute the flag or preventing
their return to school should they have already been banned, until further orders from this Court.
The facts involved are not disputed. On June 11, 1955, Republic Act No. 1265 was approved and went into effect. Acting upon section 2 of
said Act authorizing and directing the Secretary of Education to issue or cause to be issued rules and regulations for the proper conduct of the
flag ceremony, said Secretary issued Department Order No. 8, series of 1955 on July 21, 1955 which Department Order quoting Republic Act
No. 1265 in its entirety, we reproduce below for purpose of reference:
"Republic of the Philippines
Department of Education
Office of the Secretary
Manila
Department Order
No. 8, s. 1955
July 21, 1955
COMPULSORY DAILY FLAG CEREMONY IN ALL PUBLIC AND PRIVATE SCHOOLS
To the Director of Public Schools and the Director of Private Schools:
1. Quoted below is Republic Act No. 1265 entitled "An Act making Flag Ceremony Compulsory in all Educational Institutions,"
which is self-explanatory.
SECTION 1. All educational institutions henceforth observe daily flag ceremony, which shall be simple and dignified and
shall include the playing or singing of the Philippine National Anthem.
SECTION 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and regulations
for the proper conduct of the flag ceremony herein provided.
SECTION 3. Failure of refusal to observe the flag ceremony provided by this Act and in accordance with rules and
regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment which shall be published at least once in a
newspaper of general circulation.
In case of failure to observe for the second time the flag ceremony provided by this Act, the Secretary of Education, after proper
notice and hearing, shall cause the cancellation of the recognition or permit of the private educational institution responsible for such
failure.
SECTION 4. This Act shall take effect upon its approval.
Approved, June 11, 1955.
2. As provided in Section 2 of the Act, the rules and regulations governing the proper conduct of the required flag ceremony, given in
the in closure to this Order, are hereby promulgated. These rules and regulations should be made known to all teachers and school
officials, public and private. The patriotic objective or significance of the Act should be explained to all pupils and students in the
schools and to all communities through the purok organizations and community assemblies.
(Sgd.) G. HERNANDEZ, JR.
Secretary of Education
Incl.:
As stated
(Inclosure of Department order No. 8, s. 1955)
RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL INSTITUTIONS
1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day throughout the year. It shall
be raised at sunrise and lowered at sunset. The flag staff must be straight, slightly and gently tapering at the end, and of such height as
would give the Flag a commanding position in front of the building or within the compound.
2. Every public and private educational institution shall hold a flag-raising ceremony every morning except when it is raining, in
which event the ceremony may be conducted indoors in the best way possible. A retreat shall be held in the afternoon of the same day.
The flag-raising ceremony in the morning shall be conducted in the following manner:
a. Pupils and teachers or students and faculty members who are in school and its premises shall assemble in formation facing the flag.
At command, books shall be put away or held in the left hand and everybody shall come to attention. Those with hats shall uncover.
No one shall enter or leave the school grounds during the ceremony.
b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the accompaniment if it has
none; or the anthem may be played by the school band alone. At the first note of the Anthem, the flag shall be raised briskly. While
the flag is being raised, all persons present shall stand at attention and execute a salute. Boys and men with hats shall salute by placing
that hat over the heart. Those without hats may stand with their arms and hands downed and straight at the sides. Those in military or
Boy Scout uniform shall give the salute prescribed by their regulations. The salute shall be started as the Flag rises, and completed
upon last note of the anthem.
c. Immediately following the singing of the Anthem, the assembly shall recite in unison of following patriotic pledge (English or
vernacular version 0, which may bring the ceremony to a close. This is required of all public schools and of private schools which are
intended for Filipino students or whose population is predominantly Filipino.
ENGLISH VERSION
I Love the Philippines.
It is the land of my birth,
It is the home of my people.
It protects me and helps me to be strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true Filipino in thought, in word, in deed.
3. The retreat shall be observed as follows:
a. Teachers and pupils or faculty members and students whose classes and after the last school period in the afternoon before sun
down shall assemble facing the flag. At command, the Philippine National Anthem shall be sung with accompaniment of the school
band. If the school has no band, the assembly will only sing the Anthem. Boys who have been taking part in preparatory military
training or Boy Scout activities shall attend the retreat in formation and execute the salute prescribed for them. Others shall execute
the same salute and observe the same deportment as required of them in the flag-raising ceremony. The flag should be lowered slowly
so that it will be in the hands of the color detail at the sound of the last note of the Anthem.
b. If the school so prefers, it may have its bugle corp play "To the Colors", instead of the singing of the National Anthem, for the
retreat. At the sound of the first note, the assembly shall stand at attention facing the flag and observe the same deportment as required
in the flag-raising ceremony. Or, it may have its bugle corp play "To the Colors" and at the sound of the first note everybody within
hearing distance shall stand at attention, face the flag, and observe the same deportment as required in the flag-raising ceremony.
4. The flag should be handled reverently in raising or lowering it and not allowed to touch the ground. This can be insured by having
one pupil hold the flag while another pupil fastening it to or unfasten it from the halyard.
5. To display the National Flag at half-mast when necessary, it must be hoisted to full-mast, allowing it to fly there for a moment, and
then brought down to half-mast. To lower the flag, it must again be hoisted to full-mast before bringing it down."
In his turn the Director of Public Schools issued Circular No. 22, series of 1955, on July 30, 1955 addressed to Division Superintendents of
Schools, enclosing a copy of Department Order No. 8, series of 1955 and enjoining strict compliance therewith.
It would appear that pursuant to the Department Order in question, the flag ceremony contemplated therein was held daily in every school,
public and private. Petitioners' children attending the Buenavista Community School, Uson, Masbate, refused to salute the flag, sing the
national anthem and recite the patriotic pledge contrary to the requirement of Department Order No. 8; as a result they were expelled from
school sometime in September, 1955. It is said that other children similarly situated who refused or failed to comply with the requirement about
saluting the flag are under threats of being also expelled from all public schools in the Philippines.
Petitioners thru counsel wrote to the Secretary of Education petitioning that in the implementation of this flag ceremony, they and their children
attending school be allowed to remain silent and stand at attention with their arms and hands down and straight at the sides and that they be
exempted from executing the formal salute, singing of the National Anthem and the reciting of the patriotic pledge, giving their reason for the
same. On December 16, 1955 the Secretary of Education wrote to counsel for petitioner denying the petition, making it clear that the denial was
the final and absolute stand of the Department of Education on the matter and that counsel may thereafter feel free to seek a judicial
determination of the constitutionality or interpretation of Republic Act No. 1265 as construed and applied to Jehovah's Witnesses. The letter
also informed petitioners' counsel that with reference to his letter of December 1, 1955 relative to the request for reinstatement of petitioners'
children who had been expelled from school for non-compliance with Department Order No. 8, no favorable action could be taken thereon. So,
on March 27, 1957 petitioners commenced the present action asking that a writ of preliminary injunction issue to restrain the Secretary of
Education and the Director of Public Schools from enforcing Department Order No. 8 "as applied to petitioners and all others of Jehovah's
Witnesses for whom this action is brought and to restrain them from excluding from the public schools the children of the petitioners on
account of their refusal to execute a formal salute to the flag, sing the national anthem and recite the patriotic pledge, and that after hearing, the
trial court declare Department Order No. 8 invalid and contrary to the Bill of Rights and that the preliminary injunction prayed for be made
permanent.
Petitioners-appellants belong to what is called the JEHOVAH'S WITNESS, an unincorporated body teaching that the obligation imposed by
law of God is superior to that of laws enacted by the State. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and
5, which say: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth
beneath, or that is in the water under the earth; thou shalt not bow down thyself to them, nor serve them." They consider that the flag is an
"image within this command. For this reason they refuse to salute it.
To further make clear the stand of petitioners as to the relative position and priority of religious teaching on the one hand and laws promulgated
by the State on the other, we quote from appellant's brief on page 50 thereof:
In Halter vs. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, 51 L. Ed. 696 (1907), the United States Supreme Court held that the flag `is an
emblem of National sovereignty,
To many persons the saluting of a national flag means nothing. To a sincere person who believed in God and the Bible as his Word,
and who is in a covenant with Almighty God to do his will exclusively, it means much. To such person "sovereignty" means the
supreme authority or power. Many believe that "the higher powers," mentioned in the Bible at Romans 13:1, means the "sovereign
state"; but to the Christian this means Jehovah God and his son, Christ Jesus, Jehovah's anointed King. They, Father and Son are the
higher powers, to whom all must be subject and joyfully obey. (Emphasis supplied)
The question involved in this appeal is a highly important one. We are called upon to determine the right of a citizen as guaranteed by the
Constitution about freedom of religious belief and the right to practice it as against the power and authority of the State to limit or restrain the
same. Our task is lessened by the fact that petitioners do not challenge the legality or constitutionality of Republic Act 1265. All that they
question is the legality or constitutionality of Department Order No. 8, series of 1955 of the Department of Education implementing said
Republic Act.
The realm of belief and creed is infinitive and limitless bounded only by one's imagination and though. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the
exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of
society and with the law, then the former must yield and give way to the latter. The Government steps in and either restrains said exercise or
even prosecutes the one exercising it.
One may believe in polygamy because it is permitted by his religious, but the moment he translates said religious belief into an overt act, such
as engaging or practising plural marriages, he may be prosecuted for bigamy and he may not plead or involve his religious belief as a defense
or as matter of exemption from the operation of the law.
In the case of Reynolds vs. U.S. (98 U.S. 145) the U.S. Supreme Court upheld the validity of a law prohibiting and punishing polygamy even as
against the claim of religious belief of the Mormons. Said the Court:
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make
the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto
himself. Government could exist only in name under such circumstance. (emphasis supplied)
Again, one may not believe in the payment of taxes because he may claim that according to his religious belief, the payment of taxes means
service to one other than God. As long as he confines himself to mere belief, well and good. But when he puts said belief into practice and he
actually refuses to pay taxes on his property or on his business, then the States steps in, compels payment, and enforces it either by court action
or levy and distraint.
One of the important questions to determine here is the true meaning and significance of the Filipino flag. Petitioners believe and maintain that
it is an image and therefore to salute the same is to go against their religious belief. "Thou shalt not make unto thee any graven . . . thou shalt
not bow down thyself to them or serve them." They also claim that the flag salute is a religious ceremony, participation in which is forbidden
by their religious belief. We disagree. Appellants themselves (page 51 of their brief) concede that the flag is a symbol of the State. They give
the meaning of the word "image" on page 51 of their brief as follows:
Under the word "image" this comment is given by Webster: "Image, in modern usage, commonly suggests religious veneration."
(Emphasis supplied)
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and
of freedom and liberty which it and the Constitution guarantee and protect. Considering the complete separation of church and state in our
system of governments, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious
ceremony. The flag salute, particularly the recital of the pledge of loyalty is no more a religious ceremony than the taking of an oath of office
by a public official or by a candidate for admission to the bar. In said oath, taken while his right hand is raised, he swears allegiance to the
Republic of the Philippines, promise to defend the Constitution and even invokes the help of God; and it is to be doubted whether a member of
Jehovah's Witness who is a candidate for admission to the Philippine Bar would object to taking the oath on the ground that is religious
ceremony.
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a a religious
group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as
many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending
upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.
We understand that petitioners, during the flag ceremony, are willing to remain silent and stand at attention with their arms and hands down
straight at the sides, and they agree that boys, members of Jehovah's Witness who have been taking part in military training or Boy Scout
activities, and are in uniform, may execute the salute to the flag prescribed by the Circular for them. So, the requirement contained in
Department Order No. 8 that during the flag ceremony those without hats may stand with their arms and hands down and straight at the sides,
including the formal salute by boys in military and boy Scout uniform, meets with the conformity of petitioners. Of course, there is the other
requirement that boys and men with hats shall salute the flag by placing their hats over the heart, but petitioners and other members of the
Jehovah's Witness could well solve this requirements or avoid it by putting away their hats just as pupils books, may put them away, at
command (Rules and Regulations, Sec. 2, par. [a]). Consequently, the opposition of petitioners to the flag salute may be reduced to their
objection to singing the National Anthem and reciting the patriotic pledge.
After a careful and conscientious examination of the patriotic pledge as reproduced at the beginning of this decision, frankly we find nothing,
absolutely nothing, objectionable, even from the point of view of religious belief. The school child or student is simply made to say that he
loves the Philippines because it is the land of his birth and the home of his people; that because it protects him, in return he will heed the
counsel of his parents, obey the rules and regulations of his school, perform the duties of a patriotic and law-abiding citizen; and serve his
country unselfishly and faithly, and that he would be a true Filipino in thought, in word, and in deed. He is not even made to pledge allegiance
to the flag or to the Republic for which it stands. So that even if we assume for a moment that the flag were an image, connoting religious and
veneration instead of a mere symbol of the State and of national unity, the religious scruples of appellants against bowing to and venerating an
image are not interfered with or otherwise jeopardized.
And as to the singing of the National Anthem, which we reproduce below:
Land of the morning,
Child of the sun returning.
With fervor burning,
Thee do our souls adore.
Land dear and holy,
Cradle of noble heroes,
Ne'er shall invaders,
Trample thy sacred shores.
Ever within thy skies and thy clouds,
and o'er thy hills and sea,
Do we behold the radiance, feel the throb
of glorious liberty.
Thy banner, dear to all our hearts,
Its sun and stars alight.
O—never shall its shining field
Be dimmed by tyrant's might.
Beautiful land of love,
O—land—of—light,
In thine embrace `tis rapture to lie.
But is glory ever, when thou art wronged,
For us, they sons to suffer and die.
the same thing may be said; that it speaks only of love of country, of patriotism, liberty and the glory of suffering and dying for it. It does not
even speak of resorting to force and engaging in military service or duty to defend the country, which service might meet with objection on the
part of conscientious objectors. Surely, petitioners do not disclaim or disavow these noble and sacred feelings of patriotism, respect, even
veneration for the flag and love of coutnry for which the flag stands.
Men may differ and do differ on religous beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of
judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to
differ, for these are matters in which they are mutually and viatlly interested, for to them, they mean national existence and survival as a nation
or national extinction.
In enforcing the flag salute on the petitioners, there was absolutely no compulsion involved, and for their failure or refusal to obey school
regulations about the flag salute they were not being persecuted. Neither were they being criminally prosecuted under threat of penal sacntion.
If they chose not to obey the flag salute regulation, they merely lost the benefits of public education being maintained at the expense of their
fellow citizens, nothing more. According to a popular expression, they could take it or leave it. Having elected not to comply with the
regulations about the flag salute, they forfeited their right to attend public schools.
In the case of Hamilton vs. University of California, 293 U.S. 243, 79 L. ed. 343, quite similar to the present case, appellants therein were
taxpayers and citizens of the United States and of California. The University of California received endowment and support from the State
legislature under certain conditions such as that any resident of California of the age of 14 years or upward of approved moral character shall
have the right to enter the University as a student and receive instructions therein. The University as part of its cirriculum and instruction
required military science and tactics in the Reserve Officers Training Corps. Appellants conformed to all requirements of the University except
taking the course in military science and tactics and for this the regents of the University suspended them. Appellants were members of the
Methodist Espiscopal Church and of the Epworth League. For many years their fathers have been ordained ministers of that church. They
believed that war and preparation for war is a violation of their religious belief. In other words, they were conscientious objectors to war. They
believed that war, training for war, and military training were immoral, wrong and contrary to the letter and spirit of the teaching of God and
precepts of the Christian religion. They petitioned for exemption from the military science and tactics course but the regents refused to make
military training optional or to exempt them and they were suspended. So they initiated court action with a California Supreme Court to compel
the regents of the University to admit them. In that action they assailed the validity of the State law providing for military training in the
University. The petition was denied by the State Supreme Court. In affirming the decision of the State Supreme Court, the Supreme Court of
the United States held that:
. . . California has not drafted or called them to attend the University. They are seeking education offered by the State and at the same
time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs and consicientious
objections to war, preparation for war and military education. Taken on the basis of the facts alleged in the petition, appellants'
contentions amount to no more than an assertion that the due process clause of the Fourtheenth Amendment as a safeguard of liberty'
confers the right to be students in the state university free from obligation to take military training as one of the conditions of
attendance.
Viewed in the light of our decisions that proposition must at once be put aside as untenable . . .
In United States vs. Macintosh, 283 U.S. 605, 75 L. ed. 1302, 51 S. Ct. 570, a later naturalization case, the applicant was unwilling,
because of conscientious objections, to take unqualifiedly the statutory oath of allegiance which contains this statement: "That he will
support and defend the constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and
allegiance to the same." U.S.C. title 8, Sec. 381. His petition stated that he was willing if necessary to take up arms in defense of this
country, "but I should want to be free to judge of the necessity." In amplification he said: "I do not undertake to support "my country,
right or wrong" in any dispute which may arise, and I am not willing to poromise beforehand, and without knowing the cause for
which my country may go to war, either that I will or that I will not "take up arms in defense of this country," however "necessary" the
war may seem to be to the government of the day." The opinion of this court quotes from petitioner's brief a statement to the effect
that it is a fixed principle of our Constitution, zealously guarded by our laws, that a citizen cannot be forced and need not bear arms in
a war if he has conscientious religious scruples against doing so." And, referring to that part of the argument in behalf of the applicant
this court said (p. 623): "This, if it means what it seems to say, is an astonishing statement. Of course, there is no such principle of the
Constitution, fixed or otherwise. The conscientious objector is relieved from the obligation to bear arms in obedience to no
constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve
him . . . The previlege of the native-born conscientious objector to avoid bearing arms comes not from the Constitution but from the
acts of Congress. That body may grant or withhold the exemption as in its wisdom it sees fit; and if it be withheld, the native-born
conscientious objector cannot successfully assert the privilege. No other conclusion is compatible with the well-nigh limitless extent
of the war power as above illustrated, which include by necessary implication, the power, inthe last extremity, to compel armed
serviced of any citizen in the land, without regard to his objections or his views in respect of the justice or morality of the particular
war or of war in general. In Jacobson v. Massachusetts, 197 U.S. 11, 29, 49 L. ed. 643, 651, 25 S. Ct. 358, 3 Ann. Cas, 765, this Court
(upholding a state compulsory vaccination law) speaking of the liberties guaranteed to the individual by the Fourteenth Amendment,
said: "... and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary
intersts, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of
being shot down in its defense.
And see University of Maryland v. Coale, 165 Md. 224, 167 A. 54, a case, similar to that now before us, decided against the
contention of a student in the University of Maryland who on conscientious grounds objected to military training there required. His
appeal to this Court was dismissed for the want of a substantial federal questions. 290 U.S. 597, 78 L. ed. 525, 54 S. Ct. 131.
Plainly there is no ground for the contention that the regents' order, requiring able-bodied male students under the age of twenty-four
as a condition of their enrollment to take the prescribed instruction in military science and tactics, transgresses any constitutional right
asserted by these appellants.
Mr. Justice Cardozo in his concurring opinion said:
I assume for present purposes that religious liberty protected by the First Amendment against invasion by the nation is protected by
the Fourteenth Amendment against invasion by the states.
Accepting that premise, I cannot find in the respondents' ordinance an obstruction by the state to "the free exercise" of religion as the
phrase was understood by the foundrs of hte nation, and by the generations that have followed. Davis vs. Beasin, 133 U.S. 333, 342,
33 L. ed. 637, 10 s.Ct. 299.
There is no occasion at this time to mark the limits of governmental power in the exaction of military service when the nation is at
peace. The petitioners have not been required to bear arms for any hostile purpose, offensive or defensive, either now or in the future.
They have not even been required in any absolute or peremptory way to join courses of instruction that will fit them to bear arms. If
they elect to resort to an institution for higher education maintained with the state's moneys, then they are comanded to follow courses
of instruction believed by the state to be vital to its welfare. This may be condemned by some unwise or illiberal or unfair when there
is violence to conscientious scruples, either religious or merely ethical. More must be shown to set the ordinance at naught. In
controversies of this order courts do not concern themselves with matters of legislative policy, unrelated to privileges or liberties
secured by the organic law. The first Amendment, if it be read into the Fourteenth, makes invalid any state law `respecting an
establishment of religion or prohibiting the free exercise thereof.' Instruction in military science is not instruction in the practice or
tenets of a religion. Neither directly nor indirectly is government establishing a state religion when it insists upon such training.
Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free
exercise of religion when the liberties of the constitution are read in the light of a century and a half of history during days of peace
and war . . .
Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his
liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in
furtherance of any other end, condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been
so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle—which may turn
out in the end to be a delusion or an error—does not prove by his martyrdom that he has kept within the law."
We are not unmindful of the decision of the United States Federal Supreme Court on similar set of facts. In the case of Minersville School
District vs. Gobitis, 310 U.S. 586, 84 L. ed. 1375, two Jehovah Witnesses children were expelled from the public school of Minersville for
refusing to salute the national flag in accordance with the regulations poromulgated by the school board for the daily flag ceremony. Their
father Gobitsi on behalf of his two children and in his own behalf brought suit to enjoin the school authorities from continuing to exact the
execution of the flag ceremony as a condition of his children's admittance in school. After trial, the District Court gave him relief and this
decree was affirmed by the Circuit Court of Appeals. On appeal to the Federal Supreme Court, the decrees of both the District Court and the
Circuit Court of Appeals were reversed with the lone dissent of Chief Justice Stone, on the ground that the requirement of participation of all
pupils in the public schools in the flag ceremony did not infringe the due process law and liberty guaranteed by the Constitution, particularly
the one referring to religious freedom and belief. Three years later, that is, on June 14, 1943, the ruling laid down in the Minersville School
District vs. Gobitis case, was in the case of West Virginia State Board of Education vs. Bernette, 319 U.S. 624-671 reversed by a sharply
divided court, the majority opinion being penned by Mr. Justice Jackson in which Justice Black, Douglas and Murphy concurred; while Mr.
Justice Frankfurter who wrote the opinion in the Gobitis case, filed a long dissenting opinion, and Justices Roberts and Reed adhered to the
views expressed in the Gobitis case.
Neither attempting to justify the ruling laid down in the Minersville vs. Gobitis case nor desiring to criticize the doctrine of the West Virginia
vs. Barnette case, frankly, we are more inclined to favor the former as more in keeping with the spirit of our Constitution and the government
policy as laid down in Republic Act No. 1265 entitles "An Act Making Flag Ceremony Compulsory In All Educational Institutions".
We cannot help thinking that one reason that may have possibly influenced the decision in the West Virginia State Board of Education vs.
Barnette case, was that the children involved in said case and their parents found themselves in a serious dilemma for refusing to salute the flag
as required by the regulations of the School Board. They were expelled by the School Board and their absence was considered unlawful and
because of the law of compulsory school atendance of all children of school age, they were considered as truants and the school officials
threatened to send them to reformatories maintained for criminially inclinded juveniles. Parents of such children have been prosecuted or were
threatened with prosecution for cause such as alleged delinquency and if convicted, were subject to fine not exceeding $50.00 and a jail term
not exceeding 30 days. That is why in the majority opinion it was stated:
. . . The sole conflict is between authority and rights of the individual. The state asserts power to conditions access to public education
on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child . . .
Such a grave and embarrassing situation, however, does not obtain in the Philippines. True, we have a law (Republic Act 896) requiring
compulsory enrollment of children of shcool age, but said law contains so many exceptions and exemptions that it can be said that a child of
school age is very seldom compelled to attend school, let alone the fact that almost invariably, there is school crisis every year wherein the
pupils applying for admission in public schools could not be accommodated, and what is equally important is that there is no punishment or
penal sanction either for the pupil who fail to attend school or is expelled for failure to comply with school regulations such as the compulsory
flag salute ceremony, or his parents.
In the case of re Summers, 325 U.S. 561-578, decided on June 11, 1945, that is, two years after the decision in the case of West Virginia, the
Supreme Court of the United States affirmed a decision of the Illinois Supreme Court refusing admission of petitioner Clyde Wilson Summers
to the Illinois Bar. Summers had complied with tall the prerequisites to admission to the Bar of that state, but he was a conscientious objector
who did not believe in the use of force or war because of his religious belief. He described this attitude of his as follows:
The so-called "misconduct" for which petitioner could be reproached for is his taking the New Testament too seriously. Instead of
merely reading or preaching the Sermon on the Mount, he tries to practice it. The only fault of the petitioner consists in his attempt to
act as a good Christian in accordance with his interpreation of the Bible, and according to the dictates of his conscience. We
respectfully submit that the profession of law does nt shut its gates to persons who have qualified in all other respects even when they
follow in the footsteps of that Great Teacher of mankind who delivered the Sermon on the Mount. We respectfully submit that under
our Constitutional guarantees even good Christians who have met all the requirements for the admission to the bar may be admitted to
practice law
The Constitution of Illinois required service in the militia in time of war of men of petitioner's age group. The Federal Supreme Court defined
the position of Summers as a conscientious objector in the following words:
. . . without detailing petitioner's testimony before the Committee or his subsequent statments in the record, his position may be
compendiously stated as one of non-violence. Petitioner will not serve in the armed forces. While he recognizes a difference between
the military and police forces, he would not act in the latter to coerce threatened violations. Petitioner would not use force to meet
aggression against himself or his family, no matter how aggravated or whether or not carrying a danger of bodily harm to himself or
others. He is a believer in passive resistance. We need to consider only his attitude toward service in the armed forces.
It was not denied that Summers was unwilling to serve in the militia of Illinois because of his religious belief. In affirming the decision of the
Illinois Supreme Court excluding Summers from the practice of law in that state, the Federal Supreme Court held that the action of the State
Supreme Court did not violate the principle of religious freedom contained in the Constitution.
If a man lived, say on an island, alone and all by himself without neighbors, he would normally have complete and absolute rights as to the way
he lives, his religion, incuding the manners he practices his religious beliefs. There would be no laws to obey, no rules and regulations to
follow. He would be subject only to Nature's physical laws. But man iis gregarious by nature and instinct and he gravitates toward community
life, to receive and enjoy the benefits of society and of social and political organization. The moment he does this and he becomes a member of
a community or nation, he has to give rights for the benefit of his fellow citizens and for the general welfare, just as his fellow men and
companions also agree to a limitation of their rights in his favor. So, with his religion. He may retain retain his freedom or religious belief, but
as to practising the same, he would have to give up some of those practices repugnant to the general welfare and subordinate them to the laws
and sovereignty of the State. In order words, the practice of religion or religious belief is subject to reasonable and non-discrminatory laws and
regulations by the state.
In the case of Prince vs. Commonwealth of Massachusetts, 88 L. ed. 645, the United States Supreme Court affirmed a decision convicting
Sarah Prince of a violation of the Child Labor Law of Massachusetts. Mr. Justice Rutledge who wrote the opinion tersely described the case
thus:
The case brings for review another episode in the conflict between Jehovah's Witneses and state authority. This time Sarah Prince
appeals from convictions for violating Massachusetts' child labor laws, by acts said to be a rightful exercise of her religious
convictions.
When the offenses where committed she was the aunt and custodian of Betty M. Simmons, a girl nine years of age. . . . (Emphasis
supplied)
The defendant in this case allowed Betty, under here legal cutody who was at the same time niece, to distribute religious pamphlets intended to
propagate the religion of Johovah Wiitness. The question involved was whether or not the law in question contravened the Fourtheenth
Amendment by denying appellant freedom of religion and denying to her the equal protection of the law. Defendant claimed that the child was
exercising her God given right and her constitutional right to preach the gospel and that no preacher of God's commands shold be interfered
with. She rested her case squarely on freedom of religion. In affirming the judgment of conviction and upholding the law as agains the claiim of
relgion and the exercise of religious belief, the court said:
. . . And neither rights of religion nor lights of parenthood are beyond limitation. Acting to guard the general interest in youth's well-
being, the state as parens patriae may restrict the parent's control by requiring shcool attendance, regulating or prohibiting the child's
labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of
conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on
relgious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable
disease or the latter to ill health or death. . . . It is too late now to doubt that legislation appropriately designed to reach such evils is
withinthe state's police power, whether against the parent's claim to control of the child or one that religious scruples dictate contrary
action.
Incidentally, it must be noted that this case was decided after that of West Virginia vs. Barnette, supra.
In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not imposing a religion or religious
belief or a religious test on said students. It was merely enforcing a non-discriminatory school regulation applicable to all alike whether
Christian, Moslem, Protestant or Jehovah's Witness. The State was merely carrying out the duty imposed upon it by the Constitution which
charges it with supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate system of
public education, and see to it that all schools aim to develop among other things, civic conscience and teach the duties of citizenship. (Art.
XIV, section 5 of the Constitution). It does nothing more than try to inculcate in the minds of the school population during the formative period
of their life, love of country and love of the flag, all of which make for united and patriotic citizenry, so that later in after years they may be
ready and willing to serve, fight, even die for it. It is well known that whatever is taught to the youth during this period, such as love of God, of
parents, respect for elders, love of the truth, loyalty, honoring one's word and respecting the rights of other, becomes a habit or second nature
that will remain with them always. School children of kingdoms and empires are taught early to respect and love the king or the emperor for
these rulers and sovereigns symbolize the nation, and the children as future citizens or subjects will come to love their country.
Petitioners do not question the right of public schools to conduct the flag salute ceremony regularly but they do "question the attempt to compel
conscientious objectors guided by the word of God to salute the flag or participate in the ceremony to specific commandment of Jehovah God.
It is perfectly proper and lawful for one nt bound by a covenant with Jehovah to salute the flag when that person desires to salute it. It is
entirely wrong to interfere with that right or prevent such one from saluting the flag. Conversely, it is also true that it is wrong and illegal to
compel one who, for concience' sake, cannot participate in the ceremony." (p. 85, Appellant's Brief)
The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they have no valid right to such
exemption is that the latter would disrupt shcool discipline and demoralize the rest of the school population which by far constitutes the great
majority. If the children of Jehovah Witnesses are exempted, then the other pupils, especially the young ones seeing no reason for such
exemption, would naturlly ask for the same privilege because they might want to do something else such as play or study, instead of standing at
attention saluting the flag and singing the national anthem and reciting the patriotic pledge, all of which consume considerable time; and if to
avoid odions discrimination this exemption is extended to others, then the flag ceremony would soon be a thing of the past or perhaps
conducted with very few participants, and the time will come when we would have citizens untaught and uninculcated in and not imbued with
reverence for the flag and love of country, admiration for national heroes, and patriotism — a pathetic, even tragic situation, and all because a
small portion of the shcool population imposed its will, demanded and was granted an exemption. In a way that might be regarded as tyranny of
the minority, and a small minority at that.
In a few cases, such exemptions in a limited way have been afforded members of a religious group. Conscientious objectors in the United
States who because of their religion were unwilling to serve in the war particularly as regards actual fighting or field duty, were allowed to do
some work in relation to the war, but not involving combat duty or the use of force. But that was by special legislation. If that is possible here
as regards exemption from participation in the flag ceremony, then petitioners would have to look to the Legislature, not the courts for relief.
The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption form or non-compliance with reasonable
and non-discriminatory laws, rules and regulations promulgated by competent authority. As was said by Mr. Justice Frankfurter in h is dissent
in West Virginia vs. Barnette, supra:
The constitutional protection of religious freedom ... gave religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised
without hindrance from the State, not the State may not exercise that which except by leave of religious loyalties is within the domain
of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the
public good by those whose business it is to make laws. (West Virginia State Board vs. Barnette, supra, at p. 653; emphasis supplied)
In conclusion we find and hold that the Filipino flag is not an image that requires religious veneration; rather it is symbol of the Republic of the
Philippines, of sovereignty, an emblem of freedom, liberty and national unity; that the flag salute is nt a religious ceremony but an act and
profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for; that by authority of the legislature, the
Secretary of Education was duly authorized to promulgate Department Order No. 8, series of 1955; that the requirement of observance of the
flag ceremony or salute provided for in said Department Order No. 8, does not violate the Constitutional provision about freedom of religion
and exercise of religion; that compliance with the non-discriminatory and reasonable rules and regulations and school disicipline, including
observance of the flag ceremony is a prerequisite to attendance in public schools; and that for failure and refusal to participate in the flag
ceremony, petitioners were properly excluded and dismissed from the public shcool they were attending.
In view of the foregoing, the appealed decision is affirmed. The writ of preliminary injunction heretofore issued is ordered dissolved. No costs.
Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996
D E C I S I O N
PUNO, J.:
I. THE FACTS
Several pre-taped episodes of the TV program “Ang Iglesia ni Cristo” of the religious group Iglesia ni Cristo (INC) were rated “X” – i.e., not for public viewing – by the respondent Board of Review for Moving Pictures and Television (now MTRCB). These TV programs allegedly “offend[ed] and constitute[d] an attack against other religions which is expressly prohibited by law” because of petitioner INC’s controversial biblical interpretations and its “attacks” against contrary religious beliefs.
Petitioner INC went to court to question the actions of respondent Board. The RTC ordered the respondent Board to grant petitioner INC the necessary permit for its TV programs. But on appeal by the respondent Board, the CA reversed the RTC. The CA ruled that: (1) the respondent Board has jurisdiction and power to review the TV program “Ang Iglesia ni Cristo,” and (2) the respondent Board did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of “Ang Iglesia ni Cristo” on the ground that the materials constitute an attack against another religion. The CA also found the subject TV series “indecent, contrary to law and contrary to good customs.” Dissatisfied with the CA decision, petitioner INC appealed to the Supreme Court.
II. THE ISSUES
(1) Does respondent Board have the power to review petitioner’s TV program?
(2) Assuming it has the power, did respondent Board gravely abuse its discretion when it prohibited the airing of petitioner’s
religious program?
III. THE RULING
[The Court voted 13-1 to REVERSE the CA insofar as the CA sustained the action of the respondent Board’s X-rating petitioner’s TV Program Series Nos. 115, 119, and 121. It also voted 10-4 to AFFIRM the CA insofar as the CA it sustained the jurisdiction of the respondent MTRCB to review petitioner’s TV program entitled “Ang Iglesia ni Cristo.”]
1. YES, respondent Board has the power to review petitioner’s TV program.
Petitioner contends that the term “television program” [in Sec. 3 of PD No. 1986 that the respondent Board has the power to review and classify] should not include religious programs like its program “Ang Iglesia ni Cristo.” A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that “no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.”
[The Court however] reject petitioner’s postulate. Petitioner’s public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. . . [T]he Court] shall continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still.
2. YES, respondent Board gravely abuse its discretion when it prohibited the airing of petitioner’s religious program.
[A]ny act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar.
The evidence shows that the respondent Board x-rated petitioners TV series for “attacking” either religions, especially the Catholic Church. An examination of the evidence . . . will show that the so-called “attacks” are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. xxx.
The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. . . In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of duelling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.
In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society v. City of Manila, this Court held: “The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive evil which the State has the right to prevent.” In Victoriano vs. Elizalde Rope Workers Union, we further ruled that “. . . it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger.”
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.
G.R. No. 130716 May 19, 1999
FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.
R E S O L U T I O N
PANGANIBAN, J.:
Before the Court are (1) a "Motion for Leave to Intervene with Motion for Leave to File the Attached Partial Motion for Reconsideration . . ." and (2) "Partial Motion for Reconsideration," both filed on January 22, 1999, as well as movants' Memorandum of Authorities filed on March 16, 1999.
Movants Ma. Imelda Marcos-Manotoc, Ferdinand R. Marcos II and Irene Marcos-Araneta allege that they are parties and signatories 1 to the
General and Supplemental Agreements dated December 28, 1993, which this Court, in its Decision promulgated on December 9, 1998, declared "NULL AND VOID for being contrary to law and the Constitution." As such, they claim to "have a legal interest in the matter in litigation, or in the success of either of the parties or an interest against both as to warrant their intervention." They add that their exclusion from the instant case resulted in a denial of their constitutional rights to due process and to equal protection of the laws. They also raise the "principle of hierarchical administration of justice" to impugn the Court's cognizance of petitioner's direct action before it.
The motions are not meritorious.
Intervention Not Allowed
After Final Judgment
First, we cannot allow the Motion for Leave to Intervene at this late stage of the proceedings. Section 2, Rule 19 of the Rules of Court, provides that a motion to intervene should be filed "before rendition of judgment . . ." Our Decision was promulgated December 9, 1998, while movants came to us only on January 22, 1999. Intervention can no longer be allowed in a case already terminated by the final judgment.
2
Second, they do not even offer any valid plausible excuse for such late quest to assert their alleged rights. Indeed, they may have no cogent reason at all. As Petitioner Chavez asserts,
3 the original petition, which was filed on October 3, 1997, was well-publicized. So were its
proceedings, particularly the oral arguments heard on March 16, 1998. Movants have long been back in the mainstream of Philippine political and social life. Indeed, they could not (and in fact did not) even feign unawareness of the petition prior to its disposition.
Third, the assailed Decision has become final and executory; the original parties have not filed any motion for reconsideration, and the period for doing so has long lapsed. Indeed, the movants are now legally barred from seeking leave to participate in this proceeding. Nevertheless, we shall tackle their substantive arguments, most of which have been taken up in said Decision, so as to finally dispose any allegation, even in the remote future, of lack of due process or violation of the right to equal protection.
No Denial of Due Process
Movants claim that their exclusion from the proceeding regarding the Agreements to which they were parties and signatories was a denial of "their property right to contract without due process of law."
We rule that the movants are merely incidental, not indispensable, parties to the instant case. Being contractors to the General and Supplemental Agreements involving their supposed properties, they claim that their interests are affected by the petition. However, as exhaustively discussed in the assailed Decision, the Agreements undeniably contain terms an condition that are clearly contrary to the Constitution and the laws and are not subject to compromise. Such terms and conditions cannot be granted by the PCGG to anyone, not just to movants. Being so, no argument of the contractors will make such illegal and unconstitutional stipulations pass the test of validity.
4 The
void agreement will not be rendered operative by the parties' alleges performance (partial or full) of their respective prestations. A contract that violates the Constitution and the law is null and void ab intio and vests no rights and creates no obligations. It produces no legal effect at all.
5 In legal terms, the movants have really no interest to protect or right to assert in this proceeding. Contrary to their allegations, no
infraction upon their rights has been committed.
The original petition of Francisco I. Chavez sought to enforce a constitutional right against the Presidential Commission on Good Government (PCGG) and to determine whether the latter has been acting within the bounds of its authority. In the process of adjudication, there is no need to call on each and every party whom said agency has contracted with.
In any event, we are now ruling on the merits of the arguments raised by movants; hence, they can no longer complain of not having been heard in this proceeding.
Petition Treated as an Exception to
the Principle of Hierarchical
Administration of Justice
Movants allege that despite petitioner's own statement that he did not intended "to stop or delay . . . the proceedings involving the subject agreements as an incident before the Sandiganbayan," this Court ruled the validity of the said Agreements. They submit that it thereby
preempted the Sandiganbayan and rendered moot the three-year proceedings so far undertaken by the latter court regarding the same. Movants pray that the proceedings before the anti-graft court be allowed to take their due course, consistent with the principle of the hierarchical administration of justice.
This matter has been discussed and ruled upon in the assailed Decision. Movants have not raised any new argument that has not been taken up. In any event, we wish to point out that the principle of the hierarchy of the courts generally applies to cases involving factual question. The oft-repeated justification for invoking it is that such cases do not only impose upon the precious time of the Court but, more important, inevitably result in their delayed adjudication. Often, such cases have to be remanded or referred to the lower court as the proper forum or as better equipped t resolve to the issues, since the Supreme Court is not a trier of facts.
6 Inasmuch as the petition at bar involves only
constitutional and legal questions concerning public interest, the Court resolved to exercise primary jurisdiction on the matter.
Moreover, in taking jurisdiction over the Chavez petition, the Court actually avoided unnecessary delays and expenses in the resolution of the ill-gotten wealth cases, which have been pending for about twelve years now. With this Decision, the Sandiganbayan may now more speedily resolves the merits of Civil Case No. 141. Finally, it is an elementary rule that this Court may at its sound discretion suspend procedural rules in the interest of substantial justice.
7
Petition Sought to Define
Scope of Right to Information
Movants insist that there was "nothing "secret" or "furtive" about the agreements as to warrant their compulsory disclosure by the Honorable Court . . .." They submit that when they filed their Motion for Approval of Compromise Agreements before the Sandiganbayan, they practically "opened to public scrutiny the agreements and everything else related thereto."
In our Decision, we have already discussed this point and, hence, shall no longer belabor it. Suffice it to say that in our Decision, we ruled that the Chavez petition was not confined to the conclude terms contained in the Agreements, but likewise concerned other ongoing and future negotiations and agreement, perfected or not. It sought a precise interpretation of the scope of the twin constitutional provisions on "public transactions." It was therefore not endered moot and academic simply by the public disclosure of the subject Agreements.
Alleged Partial Implementation
of Agreements Immaterial
The movants also claim that PCGG's grant to their mother of access rights to one of their sequestered properties may be equivalent to an implied ratification of the Agreements. As we have ruled, the subject Agreements are null and void for being contrary to the Constitution and the laws. Being null and void, they are not subject to ratification.
8 Neither will they acquire validity through the passage of time.
9
Petition Presented Actual
Case and Judicial Question
We reiterate that mandamus, over which this Court has original jurisdiction, is proper recourse for a citizen to enforce a public right and to compel the performance of a public duty, most especially when mandated by the Constitution. As aptly pointed out by Mr. Justice Jose C. Vitug,
10 "procedural rules . . . [are] not cogent reasons to deny to the Court its taking cognizance of the case."
There is no political question involved here. The power and the authority of the PCGG to compromise is not the issue. In fact, we have not prohibited or restrained it from doing so. But when the compromise entered into palpably violated the Constitution and the laws, this Court is duty-bound to strike it down as null and void. Clearly, by violating the Constitution and the laws, the PCGG gravely abused its discretion.
11
In sum, we hold that the motions are procedurally flawed and that, at this late stage, intervention can no longer be allowed. Moreover, movants are not indispensable parties to this suit which principally assails the constitutionality and legality of PCGG's exercise of its discretion. In any event, the Court has ruled on the merits of movants' claims. Hence, they can no longer complain, however remotely, of deprivation of due process or of equal protection of the law.
WHEREFORE, the motions are hereby DENIED for lack of merit. Let the Decision of this Court, dated December 9, 1998, be now entered.1âwphi1.nêt
SO ORDERED.
People v Mahinay 302 SCRA 455 (February 1, 1999)
Facts: Accused was convicted for rape and homicide of a 12 year old girl. He assailed the court decisions contending that his conviction was based on circumstantial evidence that fails to prove his guilt beyond
reasonable doubt and that an extrajudicial confession was taken from him in violation of his constitutional rights on custodial interrogation.
Issue: Whether or not the court erred in convicting the accused merely on ground of circumstantial evidence and
not beyond reasonable ground and WON his rights to lawful custodial investigation was violated.
Held: The court held that absence of direct proof does not necessarily absolve him from any liability because under the Rules on evidence and pursuant to settled jurisprudence, conviction may be had on circumstantial
evidence provided that the following requisites concur: (1) there is more than one circumstance; (2). the facts from which the inferences are derived are proven; and (3). the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. The circumstantial evidence to be sufficient to support conviction must be consistent with each other which were proven in the case.The extrajudicial confession taken from the accused was within the requirement of Miranda rights and within lawful means where his confession
was taken in the presence of his lawyer.
Miranda Rights include: 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that anystatement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in
any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the
most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-
government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in
writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may
not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he
may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of
the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.